Study Material Law, Poverty and Development

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA
B.A./B.B.A. LL.B. (Hons.) SEMESTER-IV
PAPER CODE: LB 404
COURSE TITLE: LAW, POVERTY AND DEVELOPMENT CREDITS-04
A- COURSE-CONTENT
Module-1 Conceptualising Poverty
1.1 The concept of poverty units: Economical, Cultural, Situational; Distinction between
"natural" and "social" poverty - Absolute and relative poverty — Poverty and its relation
with Social and religious constructs.
1.2 Conceptualisation of Impoverishment: Poverty line (Alagh Committee, Lakdawala
Committee, Tendulkar Committee, Rangarajan Committee,)- Nutritional norm (Debate
between Dandeker and Sukhatme); Income" and "consumption" criteria; The PQIL (the
Quality of Life) indices; Heterogeneity of the poor and poverty line conceptions;
Problems of data and India-wide generalization; The debate on "Crossing of the Poverty
Line"; Constitutionality of criteria of poverty line as a basis of state action.
FOR PRIVATE CIRCULATION ONLY

1.3 The "Determinants" of Impoverishment: Population growth as determinant; Legal system
as a determinant.
1.4 Planning as a determinant of poverty: The Nehru Phase (1950-1964), Green Revolution
and basic needs strategies (1964-1977), the anti-poverty Programme strategy (1977-1988);
Poverty of Planning and Anti-poverty Programmes - SFDA MFAL, DPAP, IRDP, NREP,
RLEGP "Food For Work", - Identification of beneficiaries, Arbitrariness and application
of "Poverty line" measures, Administrative structure weaknesses; Bank financing of IRDP
- Bank loans for poor and landless. MGNREGA, and DBT - Jan Dhan Yojana, Aadhaar,
Mobile, (JAM) trinity.
1.5 Constitutional Aspects of the Anti-poverty Programmes: Non-legislative character, Right
to access to information, Problem of legal accountability, Judicial remedies for
maladministration, Constitutionality of measures such as identification of beneficiaries
and bank financing. Federal autonomy questions in centrally sponsored anti-poverty
programmes.
Module-2 Law and Disadvantaged
2.1 The Bonded Labour Abolition -- Conceptualization, Administrative processes under the
Act of 1976, Awareness of the act and legal services, Bandhua Mukti Morcha: Problems
ofjudicial effectiveness
2.2 The Scheduled Caste and the Law: The Protection of Civil Rights Act: Problems of
definition, pitfalls in implementation; The Problems of scavengers and sweepers;
Atrocities against Scheduled Casters and the legal process.
2.3 The Scheduled Tribes and the Legal Order: Deforestation and tribals, Public project,
especially dams, and displacement.
2.4 Unorganized Rural Labour and the legal response: Conceptualisation of ‘labour’ and
Social security legislation, Minimum wages, Migrant and contract labour, Child labour.
2.5 Marginalized Communities- Beggars and the law, Ex-Criminal tribes, Vagrants, Aged,
Juveniles.

Module-3 Law Poverty and Gender Justice
3.1 Women, Poverty and the Law: impoverished women and gender discrimination, Wage
discrimination by public financial institutions,
3.2 Atrocities against women Rape, sexual assault including custodial rape.
3.3 Institutionalised abuse: Domestic violence and Sexual Harassment at workplace
3.4 Trafficking in women: Devadasi system, Sati, Dowry.
3.5 Rights of Transgender /LGBT: Changing Discourse
Module-4 Criminal Law and Poor
4.1 Anti-poor biases of the criminal justice system

4.2 Bail jurisprudence, problems of under-trials, sentence in default for non-payment of fine,
4.3 Compensation to victims of crime- Constitutional Development and CrPC
4.4 Poor and right to die: Discourse on Suicide and euthanasia
4.5 Legal services of the Poor: Concept of legal aid, Growth of legal aid movement in India,
Krishna lyer report, Bhagwati report; The Legal Services and Lok Adalat Act, 1986
Prescribed Readings-
1. U. Baxi (ed.), Law and Poverty (1988) Tripathi, Munbai
2. D.R. Saxena, Tribals and the Jmr (1997), Deep and Deep, New Delhi.
3. A.W. Murphy, et.al., Law and Poverty (1973), Tripathi, Mumbai.
4. J.S. Gandhi, Law and Social Change (1989) Rawat, Jaipur.

5. Lee1akrishnan.P, et.al.(eds.), Tribal Welfare: Law and Practice (1985), Cochin
University Department of Law.
Module 1 Conceptualising Poverty

1.1 CONCEPT OF POVERTY UNITS
CONCEPTUALIZING POVERTY
There has been poverty in all societies over a long period. However the ‘extent’ of poverty is
more in some countries than others. Every society, however, affluent, has people who are poor.
In the USA more than 25 million are said to live in poverty (12-15%). It was only in the 60s that
there was recognition of the prevalence of poverty. A programme of ‘War on Poverty’ was then
started in USA. In England, the Poor Law was passed in 1601 A.D. The law provided for the
establishment of a work-house to provide work to those who were without any means to meet
their basic needs. The conditions and the pay in the work-house were depressing.
However, this can be said to be the beginning of the idea of public assistance to the poor. For
example USA an affluent society has poverty too. But by and large these countries prosperous.
In India however poverty is a major problem. Thus, the concept of poverty is relative. It has been
so much with us that not much attention has been paid to it. It was considered a normal aspect of
any society.
Till recently there has been little sense of social responsibility for dealing with poverty. On the
other hand there has been a rationalisation of poverty. The poor were believed to be responsible
for their own plight. Unemployment was considered a sign of laziness. The Karma theory

suggested poverty was a consequence of wrongs or sins committed in earlier births. When
poverty has been voluntary it has been praised by society. In such a case one cannot call it
poverty per se because it is part of a saint’s life style. Mahatma Gandhi lived in ‘voluntary
poverty’. So did the Buddha. This is different from involuntary poverty where the necessities of
life are in very short supply.
In recent times there has been an acceptance of poverty as a social problem. India with the
coming of independence has made some efforts to raise the level of income of people living in
poverty. In 1960 the concept of poverty line was emphasised by Dandekar and Rath (1971).
Specific programmes of poverty alleviation were initiated in the 4th plan. The approach to
defining poverty has usually been in economic term – the levels of income, property and living
standards. People are said to be poor when their income is such that it does not enable them to
meet the basic needs such as food, shelter, and clothing.
The concept of “poverty line” used both in India and USA fixed an income. If people fall below
this line, they are considered to be poor. The poverty line is arbitrarily fixed, hence there can be
questions about it. Nevertheless, it does provide one way of determining who the poor are.
Sometimes, the word “pauperism” is used to denote extreme poverty. It describes a category of
people who are unable to maintain themselves.
In recent times there are many dimensions that are considered in looking at poverty. It is no
longer seen as purely an economic phenomenon. It is now realised that there are sociological,
political, psychological and geographical reasons as well as attitudes or value systems that need
to be considered to understand poverty.
We suggest that a minimum approach by government in any society which has significant
inequality must provide for raising minimum levels not only of incomes but also self-respect and
opportunities for social mobility and participation in many forms of decision-making. What is
being stated here is that in dealing with poverty one is not only concerned with the income but
also with the individual’s political role, opportunities for his children and self- respect.

Poverty is not only a condition of economic insufficiency; it is also social and political exclusion.
Poverty is therefore to be seen not only merely in economic terms but also in its social and
political aspects. Poverty has been with human culture and civilisation since ages. In the
beginning of the development of human society, human beings were at a low level of social
organisation and technological development and that the state of poverty was general in nature,
faced by all members of society. In the process of evolution of human society there have been
enormous developments in social organisation and technology.
However, the fruits of this progress have not been equally shared by all sections of society. There
have been the rich and there have been the poor. Thus poverty has been related to the prevailing
socio-economic structure of the society. Experts on poverty have broadly used two approaches.
First the nutritional approach. Here poverty is measured on the basis of minimum food
requirements.
Second, the relative deprivation approach. Here poverty is seen in terms of relative deprivation
of a section of population against the predeveloped sections.
Approaches
There are various approaches for the measurement of poverty. The major factor considered in
measuring poverty is income. The question that is asked is, what resources can a particular
income command? Does the income allow for obtaining the basic necessities?
Consequently, it has also been suggested that the actual intake of food should be the criteria. If
an adult person is unable to have a certain number of calories (2,250) a day he is considered to be
poor. The economic aspect usually involves the judgment of basic needs and is mentioned in
terms of resources required to maintain health and physical efficiency. Such an approach is now
being questioned. Among the basic needs are also include, education, security, leisure,
recreation. When the resources commanded by average individuals are so low that they are in
effect excluded from living patterns, customs and activities of the society, they are said to be
living in poverty.

Among the ideas which have an objective and dependable measurement of poverty is a concept
of PQLI — (Physical quality of live index). The three indicators used in PQLI are life
expectancy at age one, infant mortality and literacy. An index number is to be calculated for all
countries based on the performance of each country in these areas. The worst performance would
be designated by the in index number zero and the best performance by 100. In the 70s, the PQLI
index for India was 43.
Various important studies have been conducted in India for the measurement of poverty. For
example Ojha in his study has used the average calorie intake as the basis for defining poverty.
To him persons who are below the poverty line have an intake of less than, 2,250 calories per
capita per day.
Dandekar and Rath (1971) have estimated the value of the calories (2,250) in terms of 1960-61
prices. They observe that there would be variation in the extent of rural and urban poverty in
terms of financial index. Here they suggested that whereas the Planning Commission accepts
Rs.20/- per capita per month or Rs.240/- per annum as the minimum desirable standard, it would
not be fair to use this figure both for rural and urban areas. They suggested a lower minimum of
rupees 180/- for the rural population and a higher amount of Rupees 270/- per annum at 1960- 61
prices.
i) Absolute Poverty
Absolute poverty refers to the inability of a person or a household to provide even the basic
necessities of life. It refers to conditions of acute physical wants, starvation, malnutrition, want
of clothing, want of shelter, total lack of medical care. At times “absolute poverty” is also called
“subsistence poverty”, since it is based on an assessment of minimum subsistence requirement.
Nutrition is measured by intake of calories and proteins, shelter by quality of dwelling and
degree of over-crowding, and the rate of infant mortality and the quality of medical facility. With
the broadcasting of the definition of poverty it is also suggested that one should go beyond the
physical need and also include cultural needs—education, security, leisure and recreation. It is
difficult to fully accept the argument. The nourishment needs of a farm labourer would be

different from those of a clerk in an office. Similarly clothing requirements will also differ. If
cultural needs are also included then measurements become more complex.
Relative Poverty
As there are difficulties in accepting “absolute poverty” fully, another term “relative poverty”
has been developed. Poverty according to this concept is to be measured according to standards
of life at a given time and place. The idea is that standards of society can be changing standards.
Definition of poverty should therefore be related to the needs and demands of changing societies.
In 1960 those who had a per capita income of Rs.20/- or less per month in rural areas were
considered to be below the poverty line. In 1990 those who have an income of less than Rs.122/-
per month are considered to be below the poverty line. The term “relative poverty” also refers to
the fact that different societies have different standards, hence it is not possible to have a
universal measurement of poverty. Those who are considered poor in USA by their standards,
may not be considered so in India.
CAUSES OF POVERTY
The Human Development in South Asia 1999 reveals situation of glaring poverty, inequality and
deprivation in South Asia in general and India in particular. According to this report South Asia,
with 23% of the world population is the planet’s poorest region. About 540 million people, or
45% of the region’s population, are living below poverty line, with daily income of less than one
US dollar. India has the greatest number of the poor people with 53% people living below the
poverty in 1999 (i.e. earning less than one US dollar a day. This report also points out that there
are dramatic desperation and concentration of wealth and power among the richest members.
The highest income earning layer of 20% own 40% of total income in the region while the
lowest 20% owns only 10% In India the richest 10% earns 6 times higher than the poorest 10%
earns 6 times higher than the poorest 10% of the country. Poverty has direct linkages with social
and economic deprivations. Some indicators of these deprivations are highlighted below :

Inequality and Poverty
Earlier the effort was to study poverty by itself, that is, not relating it to the total conditions of
the society. It has been suggested by a British social welfare expert that poverty should not be
defined as income insufficiency, but the focus ought to be on the degree in inequality in the
distribution of wealth in a society. Inequality is generated by the capitalist economy where
wealth is concentrated in the lands of a few according to Marx. These few gain control of the
means of producing wealth such as slaves, land and capital. They are able to influence the
political process, by which social inequality is managed.
Essentially poverty boils down to this fact that some people are poor because others are rich.
Since the rich have greater political power than the poor, the government policy tends to favour
them. The rich therefore tend to remain rich and the poor tend to remain poor. Marx claimed that
all history is a history of class conflict; hence the situation can change only when the poor have
greater political influence.
There are others who believe that there are different roles to be performed by members of a
society. Some roles required long training, (doctors, engineers, lawyers, physicists etc.) They get
higher rewards from the society.Others like vegetable-sellers, sanitation workers,
taxi-drivers , typists, receive lower rewards. There is inequality but as it happens to maintain the
society, it is considered functional. All these jobs have to be performed to meet the needs of the
society.
Vicious Circle Theory
This theory argues that the poor are trapped in circumstances which make it difficult for them to
escape poverty. The poor have inadequate diet which makes for low energy and hence poor
performance in school and at work. Poor diet also makes them vulnerable to illness. They have
poor housing and often have to go long distances for their work. They cannot afford or are not
allowed to stay near the place of work. The circumstances combine to make the poor continue to
be in poverty. Discussing the problem of poverty in rural areas of India a leading authority in

rural development asks the question :”Does the policy in rural development considers integrated
rural poverty?” Aspects of which include poverty, physical weakness, vulnerability, isolation,
powerlessness. As this theory suggests the poor cannot get over their poverty. But it is difficult to
accept such a deterministic view, a view suggesting that they cannot escape poverty. Sometimes
this explanation of poverty is called “Situational Theory” in the sense that poor find themselves
in a particular situation and have great difficulties in getting out of it, if at all.
Geographical Factors
Poverty is explained at times by the geographical conditions in which people live. The resources
are scarce and people are unable to overcome the problems of lack of resources. The desert areas,
the hill areas are good examples. In India, certain areas have been designated as drought-prone
areas. Survey in these areas indicate that not only that the conditions are poor but in spite of hard
work they are unable to overcome the situation. Neither of these theories by themselves can
explain the totality of the phenomena of poverty. They do however provide some analysis and
understanding as to why poverty exists.
CONSEQUENCES OF POVERTY
As mentioned earlier the rich have influence to continue to be rich. In them there is a vested
interest in the continuance of poverty. Poverty survives in part because it is useful to a number of
groups in society. Poverty benefits the non-poor in general and rich and the powerful in
particular. There are a number of functions of poverty:
i) Poverty ensures that ‘dirty work will get done, there are many menial jobs that
have to be done in society. It is the poor who take up such jobs.
ii) Poverty provides a market for inferior goods and services-second-hand clothes, stale food
material, poor houses, and services from unqualified persons.

iii) Poverty facilitates a life style of the affluent. The work done by the cooks, gardeners,
washermen, house cleaners etc. enable the upper classes to lead a life of comfort.
iv) Poverty provides a group that can be made to absorb the political and economic causes of
change. Technological development means more unemployment for the unskilled.
Building of dams displaces the areas where the cannals are built. People with no land get no
compensation. Policies which change, when there is a tight budget situation, are the welfare
programmes. The rich and often the government itself has a vested interest in the continuation of
poverty. As it tends to provide for the maintenance of the stability of the society.
Poverty and its Consequences Culture of Poverty
The structural or the vicious circle theory suggests that poor find it almost impossible to get out
of the situation. How do people in such sad conditions manage to live? One explanation is that
poverty forces them to develop certain patterns of behaviour enabling them to survive the sordid
conditions of poverty. This pattern has been termed ‘Culture of poverty’. The concept was
developed by an anthropologist, Oscar Lewis, based on his studies in Mexico. He suggests that
the poor develop a culture of their own, or rathera subculture which is not part of the behaviour
pattern or the value system of the society in which they live.
Lewis says that the poor tend to be socially isolated. Apart from the family, no matter what other
group they belong, their outlook remains narrow. They do not relate themselves to total society
in which they live or to the poor in other parts of the country. The individual who grows up in
this culture has strong feelings of fatalism, helplessness, dependence and inferiority.
Their orientation is to living in present, they hardly think of the future. In brief it can be said that
the culture of poverty is both an adaptation and a reaction of the poor in the marginal position. It
is an effort to cope with the feeling of hopelessness and despair due to a realisation that it is
almost impossible to achieve success according to values of the high societies.

Their isolation also means lack of participation in the activities of the society-political, social and
economic. There is also a suggestion that children are socialised into such a culture and hence
are not willing to make use of opportunities to improve themselves they would feel insecure in a
new situation.
There are many criticisms of this concept. One of the questions that is relevant is as to whether
the culture of poverty applies to the rural conditions. Lewis develops the concept on the basis of
his studies in slum areas. There is some evidence that the poor in rural areas also have developed
a subculture, and defense mechanisms. Some feel that the poor do not participate not because of
the culture that they have developed but because the larger society in a way prevents their full
participation. Participation in social institutions requires certain levels of resources which the
poor do not have (for example-participating in religious festivities). Another criticism is that the
concept of culture of poverty tends to put the blame on the poor for being poor, rather than
holding the social system responsible.
Poverty in India
There has been a substantial discussion of poverty in India since about 1960 when Dandekar and
Rath focused the attention on the number of people who were below the poverty line. At that
time they had calculated that if the income per capita per month was less than Rs.20/- the person
was said to be below the poverty line. Separate figures are mentioned for rural and urban areas
(For Bombay the amoun indicated is Rs.200/- per month in 1960).
The amount is based on what is needed to buy the required calories of 2400 per person per day.
For rural areas, the figures was RS.122/- in 1988. There are various estimates of the number of
people below poverty line in rural areas. In 1977-78 it was estimated that 51% of the rural
population (252 millions) were below the poverty line. In 1987-88 it was estimated that about
45% (261 millions) were below the poverty line. Although percentage-wise there is a fall, but in
absolute numbers there is an increase as the population has increased.
Although there are different estimates, it is generally accepted that there are substantial number
of people living in poverty. (In the urban areas the number of people living in poverty). In the

urban areas the number of poor in 1987-88 was estimated 77 million (38%); in 1990, it is
estimated that in rural and urban areas together about 350 millions are below the poverty line.

POVERTY ALLEVIATION PROGRAMMES
Planning in India has always had some concern about high levels of poverty. The approach in the
earlier plan has tended to deal with the problem indirectly i.e. increasing of GNP, land reforms,
provision of services, minimum needs programme etc. It is in the 6th plan that a specific poverty
alleviation programme was initiated. However, there is recognition that the problem is too deep
to be solved by a specific programme. The VIIth Plan documents says “Poverty alleviation
programmes have to be viewed in the wider perspective of socio- economic transformation of the
country.
The present strategy of direct attack on poverty through specific poverty alleviation programmes
is justified on account of insufficient percolation of benefits to the poor from overall economic
growth. It should be appreciated that the strategy of direct attack on poverty cannot be sustained
and would not yield the desired results if the growth of the economy itself is slow and the
benefits of such growth are inequitably distributed. The economic betterment of the poorer
section can’t be achieved without social transformation involving structural changes, educational
development, growth in awareness and changes in outlook, motivation and attitude.
The specific programmes which are described here should therefore be understood in the
perspective of the above statement. The programmes that are mentioned here were operative in
the VIIth Plan.
The IRDP and Employment Programmes The Integrated Rural Development Programme was
introduced in the late 70s. The main objective of the IRD Programme was to evolve an
operational integrated strategy for the purpose-on the one-hand of increasing production and
productivity in agriculture and allied sectors based on better use of land, water and light, and on
the other of the resources and income development of vulnerable section of the population in
Blocks of the country. The Integration is in terms of bringing various programmes which dealt
with specific programmes or areas, together. For example: Small Farmers’ Development,
Marginal Farmers and Agricultural Labourers, Drought-Prone Area Programme.
The programmes were to help the poorest of the poor i.e. whose household income was less than
Rs.4,800/= per year. If the cut off point for the poverty line is Rs.240 p.a. how can this amount
represent the poorest of the poor? The specific activities were target group oriented. The

programmes of special rise programme, operation flood, programme for handloom, sericulture
etc. Steps were to be taken to increase the industries, services and business. The financial
assistance consisted of subsidies and loans.
Unemployment is a major factor in poverty. In rural areas, agricultural labour has work
available only seasonally. The rate of unemployment has tended to increase. In 1971 about
31/2million persons were unemployed. In 1983 it has risen to 4.5 million. About 30 million are
registered in the Employment Exchange Centre all over the country. Employment Generation is
therefore an important programme in meeting the problem of poverty.
Two programmes in these areas were initiated namely, National Rural Employment Programme
(NREP) Rural Landless Employment Guarantee Programme (RLEGP). In the later part of the
80s another programme Jawahar Rojgar Yojana was introduced. The NREP was expected to
generate 300-400 million mandays per annum. The programme envisaged creation of durable
assets such as irrigation canals, social forestry, soil conservation, roads, school buildings,
panchayat ghars etc. The RLEGP was introduced with the objective of improving and expanding
employment opportunities for the rural landless. It aimed at providing guarantee of employment
for at least one member of every landless household up to 100 days, and also to create durable
assets. Housing, and social forestry, were among the activities to be undertaken in these
programmes. In the Jawahar Rojgar Yojana the employment was to build community halls,
panchayat ghars etc.
Women and Youth and Area Development Programmes
The Programme entitled Development of women and child in rural areas was initiated as a Pilot
Project in the early 80s. The purpose was to increase their income and also to provide support,
services, needed to enable them to take up income generating activities. Employment, education
and improvement of health was the focus for improving the status of women. Training for rural
youth for self employment was also launched in the beginning of the VIth Plan. The target group
was youth between the age of 18-35 from families living below the poverty lines. The number to
be trained was 40 per block per annum. Stipends to the selected youth were provided. Efforts
were made to provide training relevant to the needs of the geographical areas. There are areas

which are affected adversely because nature has not been bountiful to them, viz. drought-prone
areas, desert areas, hill areas etc.
The incomes in these areas are subject to great fluctuations. Various programmes have been
initiated to help the poverty-stricken people in these areas. In DPAP areas, for example,
productive dry land farming, livestock development, sericulture, were among the activities
introduced. In the desert areas, the activities included afforestation, animal husbandry,
exploitation of ground water etc. The major emphasis in the urban areas was the environmental
improvement of the urban slums. Pre capita assistance of Rs.300/- per month was provided in the
infrastructure, roads, payments, water supply etc. The description of the programmes is very
sketchy. The purpose is only to provide a general idea of the approach of the government to meet
the problems of poverty. There have been many evaluation studies of these programmes. Most of
these are of the view that while there is some improvement in the situation, target set are far from
being achieved.
1.2 CONCEPTUALIZATION OF IMPOVERISHMENT

INTRODUCTION
Poverty elimination has remained a major challenge right from independence and lies at the core
of India's national development agenda to create a just and equitable society. Given the limited
resources, reliable estimation of poverty is the first step towards eradication of poverty as a basic
input for design, implementation and monitoring of anti poverty programmes. Poverty
measurement is also important to serve as a barometer of the extent of the success of strategies
for inclusive growth and poverty reduction.
Poverty can be defined as a condition in which an individual or household lacks the financial
resources to afford a basic minimum standard of living. However, the perception regarding what
constitutes poverty may vary over time and across countries. The conventional approach to
measuring poverty is to specify a minimum expenditure (or income) required to purchase a
basket of goods and services necessary to satisfy basic human needs. This expenditure is called
the poverty line. The basket of goods and services necessary to satisfy basic human needs is the
Poverty Line Basket (PLB). Poverty can be measured in terms of the number of people living
below this line (with the incidence of poverty expressed as the head count ratio (HCR) or the
poverty ratio - number of poor to the total population expressed as percentage). Globally,
countries use different measures for measuring poverty but the underlying principle remains the
same - a poverty line is calculated based on of consumption required for maintaining some
minimum standard of living in the country. However, complexities of measuring incidence of
poverty in a comparable manner over time and across regions have given rise to alternative
approaches also such as measures of the depth of poverty and of its severity.
METHODOLOGY OF ESTIMATION
India has a long history of studies on measurement of poverty. The erstwhile Planning
Commission was the nodal agency in India for estimation of poverty. Based on the methodology
suggested by the Expert Groups/Committees set up by the Planning Commission from time to
time, India has undertaken periodic assessments of the incidence of poverty since the 1960s. The

poverty ratio in India has been measured from an exogenously determined poverty line
quantified in terms of per capita consumption expenditure over a month and the class distribution
of persons obtained from the large sample survey of consumer expenditure data of the National
Sample Survey Office (NSSO). Households with consumption expenditures below the poverty
line are said to be “Below the Poverty Line (BPL)” and deemed poor. Consumption is measured
in terms of a collection of goods and services known as reference Poverty Line Baskets (PLB).
Thus, estimation of poverty in India has been based on two critical components: Information on
the consumption expenditures and its distribution across households is provided by the NSS
consumption expenditure surveys;
These expenditures by households are evaluated with reference to a given poverty line.
a) Poverty Line Estimation
The first step in estimating poverty is to define and quantify a poverty line.
Pre-Independence Poverty Estimation
i) Poverty and Unbritish Rule in India (1901): Dadabhai Naoroji’ in his book ‘Poverty and
Un-British Rule in India,’ made the earliest estimate of poverty line at 1867-68 prices ( ₹16 to
₹35 per capita per year) based on the cost of a subsistence diet for the emigrant coolies during
their voyage living in a state of quietude.
ii) National Planning Committee’s (1938): In 1938, the National Planning Committee set up
under the chairmanship of Jawaharlal Nehru suggested a poverty line (ranging from ₹15 to ₹20
per capita per month) based on a minimum standard of living.
iii) The Bombay Plan (1944): Bombay Plan proponents suggested a poverty line of ₹75 per
capita per year, which was much more modest than that of the NPC.

Post- Independence Poverty Estimation
Various expert groups constituted by the Planning Commission have estimated the number of
people living in poverty in India:
i) Working Group (1962): The poverty line in India was quantified for the first time in
1962 by this Group in terms of a minimum requirement (food and non-food) of individuals for
healthy living. The Group appeared to have taken into account the recommendation of balanced
diet made by the Nutrition Advisory Group of the Indian Council of Medical Research (ICMR)
in 1958. The Group formulated the separate poverty lines for rural and urban areas (₹20 and ₹25
per capita per month respectively in terms of 1960-61 prices) without any regional variation. The
poverty line excluded expenditure on health and education, both of which, it was assumed, were
to be provided by the State. Although not official poverty lines, these were widely used in the
1960s and 1970s to estimate the poverty ratio at national and state level.
ii) Study by VM Dandekar and N Rath (1971): Although this was not a study commissioned
by the Planning Commission, the origins of India’s poverty line lie in the seminal work of two
economists, V N Dandekar and N Rath, who first established the consumption levels required to
meet a minimum calorie norm of an average calorie norm of 2,250 calories per capita per day.
They made the first systematic assessment of poverty in India, based on National Sample Survey
(NSS) data. Unlike previous scholars who had considered subsistence living or basic minimum
needs criteria as the measure of poverty line, they derived poverty line from the expenditure
adequate to provide 2250 calories per day in both rural and urban areas. Expenditure based
Poverty line estimation generated a debate on minimum calorie consumption norms. They found
poverty lines to be Rs. 15 per capita per month for rural households and Rs. 22.5 per capita per
month for urban households at 1960‐61 prices.
iii) Task Force on “Projections of Minimum Needs and Effective Consumption Demand”
headed by Dr. Y. K. Alagh (1979):

This Task Force was constituted in 1977 and it submitted its report in 1979. Official poverty
counts began for the first time in India based on the approach of this Task Force. Poverty line
was defined as the per capita consumption expenditure level to meet average per capita daily
calorie requirement of 2400 kcal per capita per day in rural areas and 2100 kcal per capita per
day in urban areas.
The average calorie requirements were estimated as a population–weighted average of the age-
gender-activity specific calorie allowances recommended by the Nutrition Expert Group (1968)
by reference to the 1971 population Census. Based on 1973-74 prices, the Task Force set the
rural and urban poverty lines at Rs. 49.09 and Rs. 56.64 per capita per month at 1973-74 prices.
These lines were based on the assumption of different PLBs for rural and urban consumption.
iv) Lakdawala Expert Group (1993): Until the 1990s, no attempt was made to capture
differences in prices or differences in consumption patterns across states or over time. Poverty
estimates were revised with each quinquennial NSS survey and price indices were used to adjust
for price changes over time. This methodology for estimating poverty at national and state level
was regarded by some as inappropriate in giving a representative picture of the incidence of
poverty in the country. In 1989, The Planning Commission constituted the Lakdawala Expert
Group to "look into the methodology for estimation of poverty and to re-define the poverty line,
if necessary". The Expert Group submitted its report in 1993. It did not redefine the poverty line
and retained the separate rural and urban poverty lines recommended by the Alagh Committee at
the national level based on minimum nutritional requirements.
However, it disaggregated them into state-specific poverty lines in order to reflect the inter-state
price differentials. It suggested their updating using the Consumer Price Index of Industrial
Workers (CPI-IW) in urban areas and Consumer Price Index of Agricultural Labour (CPI-AL) in
rural areas rather than using National Accounts Statistics. This assumed that the basket of goods
and services used to calculate CPI-IW and CPI-AL reflect the consumption patterns of the poor.

These recommendations led the erstwhile Planning Commission to adopt the practice of
calculating poverty levels in rural and urban areas in the states using state-specific poverty lines
together with the national estimates from 1997 to 2004-05. Over the years, this method lost
credibility. The price data were flawed and successive poverty lines failed to preserve the
original calorie norms.
v) Tendulkar Expert Group (2009): In 2005, another expert group chaired by Suresh
Tendulkar was constituted to review the methodology for poverty estimation. It was to do
address the three key shortcomings of the previous methods:
(i) Poverty estimates being linked to the 1973-74 poverty line baskets (PLBs) of goods and
services did not reflect significant changes in consumption patterns of poor over time;
(ii) Issues with the adjustment of prices for inflation, both spatially (across regions) and
temporally (across time); and
(iii) Presumption of provision of health and education by the State only. The Expert Group
submitted its report in 2009. It did not construct a poverty line and adopted the officially
measured urban poverty line of 2004-05 (25.7%) based on Expert Group (Lakdawala)
methodology. It worked backward for specifying poverty lines that generated such a poverty
rate. The Tendulkar Committee suggested several changes to the way poverty was measured.
• Firstly, it recommended a shift away from basing the poverty lines from calorie norms
used in all poverty estimations since 1979 and towards target nutritional outcomes instead.
• Secondly, instead of two separate PLBs for rural and urban poverty lines, it
recommended
a uniform all-India urban PLB across rural and urban India.
• Thirdly, it recommended using Mixed Reference Period (MRP) based estimates, as

opposed to Uniform Reference Period (URP) based estimates used in earlier methods for
estimating poverty.

It recommended incorporation of private expenditure on health and education while estimating
poverty. It validated the poverty lines by checking the adequacy of actual private consumption
expenditure per capita near the poverty line on food, education and health by comparing them
with normative expenditures consistent with nutritional, educational and health outcomes
respectively. Instead of monthly household consumption, consumption expenditure was broken
up into per person per day consumption, resulting in the figure of Rs 32 and Rs 26 a day for
urban and rural areas. The national poverty line for 2011-12 was estimated at Rs. 816 per capita
per month for rural areas and Rs. 1,000 per capita per month for urban areas.
vi) Rangarajan Committee (2014):
Due to widespread criticism of Tendulkar Committee approach as well as due to changing times
and aspirations of people of India, Rangarajan Committee was set up in 2012. This Committee
submitted its report in June 2014. It reverted to the practice of having separate all-India rural and
urban poverty line baskets and deriving state-level rural and urban estimates from these. It
recommended separate consumption baskets for rural and urban areas which include food items
that ensure recommended calorie, protein & fat intake and non-food items like clothing,
education, health, housing and transport.
This committee raised the daily per capita expenditure to Rs 47 for urban and Rs 32 for rural
from Rs 32 and Rs 26 respectively3 at 2011-12 prices. Monthly per capita consumption
expenditure of Rs. 972 in rural areas and Rs. 1407 in urban areas is recommended as the poverty
line at the all India level. The government did not take a call on the report of the Rangarajan
Committee.
b) Use of Consumption Expenditure Surveys
Poverty line estimation in India has been based on the consumption expenditure and not on the
income levels due to difficulties in assessing incomes of self- employed people, daily wage
laborers etc, large fluctuations in income due to seasonal factors, additional side incomes as well
as data collection difficulties in largely rural and informal economy of India.

Since households may be able to access credit markets or household savings and thereby smooth
their consumptions to some degree, consumption expenditures may be able to provide a better
basis for determining a household’s actual standard of living. Hence, most of the Poverty
Estimation Committees proposed that per capita consumption expenditure or household expenses
were the right statistical choice for calculating poverty in India.
Incidence of poverty is estimated by the Planning Commission on the basis of the large sample
surveys on household consumer expenditure conducted by the National Sample Survey
Organisation (NSSO) on a quinquennial basis. The NSSO regularly conducts survey on
household consumer expenditure, in which households are asked about their consumption of last
30 days and is taken as the representative of general consumption.
This was considered a much better data to estimate the incidence of poverty at national and sub-
national levels by adjusting for inter-state and inter-region differences in price changes over
time. Estimates of consumption expenditure seen in the National Accounts Statistics and as
inferred from the sample surveys of the National Sample Survey Organisation show a large and
growing variance. Hence, increasingly, reliance was placed on the NSSO’s sample surveys on
consumption expenditure by households, a much better method to adjust for inter-state and inter-
region differences in price changes over time, and the use of the better recall period introduced in
the NSSO’s surveys
Data Collection Method for NSSO Expenditure Survey
• Uniform Resource Period (URP): Till 1993-94, the poverty line was based on URP data,
which involved asking people about their consumption expenditure across a 30- day recall
period, i.e, information was based on the recall of consumption expenditure in the previous 30
days.
• Mixed Reference Period (MRP): From 1999-2000 onwards, the NSSO switched to an
MRP method which measures consumption of five low-frequency items (clothing, footwear,
durables, education and institutional health expenditure) over the previous year, and all other
items over the previous 30 days

Release of Poverty Line Estimates
• The erstwhile Planning Commission released the estimates of poverty as number of

persons below poverty line as a percentage of Indian population for the years 1973-74, 1977-78,
1983, 1987-88, 1993-94, 1999-2000, 2004- 05, 2009-10 and 2011-12 respectively.
• In July 2013, based on the Tendulkar poverty line, Planning Commission released
poverty data for 2011-12. The number of poor in the country was pegged at 269.8 million or
21.9% of the population. After this, no official poverty estimates in India have been released.
LIMITATIONS OF “BELOW POVERTY LINE (BPL)” APPROACH
It is clear that the process for establishing poverty line estimation has been in constant flux. The
use of a minimum adequate norm of nutrition as a key criterion for defining the poverty line has
come in for criticism, both for the level at which it has been fixed and for the inadequacy of the
expenditure level of households at which these norms are likely to be met in providing a
minimum standard of living. As such, conceptual and empirical approaches to the measurement
of poverty and the interpretation of data are not universally accepted. Discussion on determining
the nutritional or calorie norm in which the poverty line is rooted has been long and complex.
Common sense suggests that poverty line should vary over regions mainly because of the
variations of the tastes and preferences and the price structures over the regions.
Hence, determining components of Poverty Line Basket (PLB) has been one of the key challenge
of poverty line estimation in India due to price differentials (of constituents of basket) which
vary from state to state and period to period. Further, consumption patterns, nutritional needs and
prices of components keep on changing as per dynamics of macro economy and demography.
Large divergences opened up between the poverty rates calculated by “direct” method on the
basis of actual calorie intakes vis-à-vis the minimum requirements, and the “indirect” method
based on per capital expenditures vis-à-vis the periodically updated poverty lines.
A significant %age of house-holds above the expenditure-based poverty line was unable to meet
the minimum calorie requirements. This called into question the practice of defining a “poor
household” solely on the basis of its per capital monthly expenditure vis-à-vis a poverty line

expenditure cut off without considering the household’s access to a wide set of dimensions. As
shortcomings of poverty measurements by various Committees became apparent, another
question arose whether poverty is only about consumption?
Poverty encompasses other factors such as poor health or malnutrition, lack of clean water or
electricity, poor quality of work and limited education access. The multi-dimensional character
of poverty was recognized. However, the deprivations faced by poor in various fields such as
education, health, sanitation etc are not accounted in Below Poverty Line approach. Further,
public expenditure on social services like education, health and food security had increased
substantially in recent years, which was not captured, by design, in the NSSO’s Consumer
Expenditure Surveys and the poverty line derived from these is thus lower than the services
actually consumed. The actual ‘well- being’ of the household will be higher than what is
indicated by the poverty line. However, even the Rangrajan Committee set up in 2012 missed the
opportunity to go beyond the expenditure-based poverty rates and look into the possibility of a
wider multi-dimensional view of poverty.
In the above context, Standing Committee on Finance (Minutes of the Nineteenth sitting on 19th
the 31st May, 2010) has pointed out: “The existing poverty line approach has its inherent
limitations and may not capture important aspects of the real living conditions of the people. This
is also abundantly evident from the fact that though States like Assam, Andhra Pradesh and J&K
have a high malnourishment ratio, the poverty estimates of these States, as per the Planning
Commission’s figures are much lower. This leads us to the key question of appropriate criteria to
estimate poverty and its various facets. …The Committee cannot help expressing regret over the
fact that the criteria / approach recommended by various expert groups set up from time to time
for defining and determining “poverty” or “poverty line” thus far have only left question marks
and have failed in capturing the actual incidence of poverty in the country. Important aspects
such as ill health, low educational attainments, geographical isolation, powerlessness or dis-
empowerment in civil society, caste or gender based inherent disadvantages etc. remain to be
conclusively captured in identifying and enumerating the poor.

The wide variation in determining the population of the poor is illustrated by the fact that as per
one of the expert groups appointed recently, the BPL population in the country would be as
much as 80% as per the existing calorie norm of 2,400, while as per another norm it is only
37.2%.” It was also mentioned that “The Committee are sanguine that the poverty ratio needs to
be estimated objectively and realistically and the criteria therefore should stretch beyond the
current norm which lays emphasis on calorific value and reflect faithfully the changing
nutritional profile and living status of the masses. Government programmes can be more
effectively delivered if the multiple dimensions of poverty are recognized and the criteria
nuanced accordingly”.
BPL CENSUS FOR IDENTIFICATION OF POOR HOUSEHOLDS
Identification of poor households is a prerequisite for proper targeting of beneficiaries under pro-
poor programmes. While the erstwhile Planning Commission estimated poverty, actual
identification of the “Below the Poverty Line (BPL)” households in rural areas was done by the
Ministry of Rural Development (MoRD) since 1992. The Ministry provided financial and
technical support to the States / UTs to conduct the BPL census through door-to-door survey
with 100% coverage of rural households. BPL Census was done in 1992 for 8th Five Year Plan,
in 1997 for 9th Five Year Plan and in 2002 for 10th Five Year Plan. The BPL census of 1992
used an income criterion to determine poverty with the annual income cut-off fixed at Rs. 11,000
per household.
The BPL Census of 1997 was conducted in two stages.
• First, some families were excluded on the basis of certain criteria. In the second stage,
each remaining household was interviewed to determine its total consumer expenditure, and was
identified as a BPL household if its per capita consumer expenditure was below the poverty line
set by the planning Commission. Given the difficulty in identifying the poor or persons below
the poverty line based on income and consumption expenditure- based criteria, 2002 BPL Census
was based on the an indicator-based scoring approach to classifying households as poor and non-
poor . The BPL Censuses generated criticisms across the three major categories: methodological
drawbacks in identification, data quality and corruption, and data content.

•For identification of BPL families in urban areas, the Ministry of Housing and Urban Poverty
Alleviation is the nodal agency which issues guidelines for carrying out house to house survey
by the States/Union Territories on the basis of State specific poverty lines indicated by Planning
Commission.
SOCIO-ECONOMIC CASTE CENSUS SURVEY (SECC) 2011
In an effort to address various concerns regarding BPL Censuses, and reduce inclusion/exclusion
errors, for the fourth BPL identification exercise, alternative targeting methodologies were
proposed and debated. The Ministry of Rural Development (MoRD) appointed an expert
committee chaired by Dr. N. C. Saxena to propose a new methodology for identifying BPL
households.
The committee proposed a radical departure from previous BPL Censuses and recommended a
three-fold classification of households into “excluded”, “automatically included” and “others”.
Based on Saxena Committee’s recommendations, in 2011, the MoRD launched the Socio-
Economic and Caste Census (SECC) - a door-to-door enumeration across both rural and urban
India collecting household-level socio-economic data. Its objective was not to replace the
poverty line, but to provide ‘information regarding the socio economic condition, and education
status of various castes and sections of the population’ and ‘enable households to be ranked on
their socio economic status’ to identify households that live below the poverty line.
The Census was conducted by the States / UTs simultaneously for rural and urban areas under
technical and financial support from the Government of India. This door to door respondent-
based survey of rural and urban households in the country started in June 2011 and was
completed in March 2016. SECC-2011 used the Census-2011 data, collected during House
Listing Operations (HLO) phase, as its base data. The data was ratified by Gram Sabha and
Gram Panchayat. It captured data on households - individual particulars, housing, deprivation,
employment, income, assets/amenities, and landownership.
The SECC 2011 ranked households in three categories:

a)Automatically Excluded: Households meeting exclusion criteria - any of the 13 assets and
income based parameters are automatically excluded from welfare benefits;
b)Automatically Included: Households satisfying inclusion criteria – any one of the 5 acute
social destitution parameters are automatically included for welfare benefits;
c) Others: “Others” are ranked on the basis of 7 indicators of deprivation and would,
resources permitting be eligible for welfare benefits.
SECC 2011 captured data on socio economic status of 17.97 crore rural households which has
resulted in automatic exclusion of 7.07 crore (39.36 %) of households as not poor, automatic
inclusion of 0.16 crore (0.91 %) households as poorest of the poor, and grading of deprivation of
8.72 crore (48.54%) of rural households.
Socio-Economic and Caste Census (SECC)
Unlike BPL Censuses, SECC-2011 allows for the first time to track the deprivation of
households and address gaps effectively with focus on multi-dimensionality of poverty. Being
outside the Census Act, it provides a rare opportunity to know the specific deprivation of each
household. The Sumit Bose Committee (2017) recommended using SECC 2011 data to identify
beneficiaries for all centrally sponsored, central and state government schemes as far as possible.
The Government has used SECC data for identification of beneficiary households while
implementing its social welfare programmes including Pradhan Mantri Aawas Yojana-Gramin,
Deendayal Antyodaya Yojana-National Rural Livelihood Mission, Pradhan Mantri Jan Arogya
Yojana-Ayushman Bharat, Pradhan Mantri Sahaj Bijli Har Ghar Yojana, and Pradhan Mantri
Ujjwala Yojana. It is also being used by several state governments to implement National Food
Security Act.
Use of SECC data in the implementation of Government programmes allows for evidence based
developmental interventions. With the use of SECC data, the programme specific priority list is

generated keeping in view the fiscal space of the welfare programme for targeting specific pro-
poor interventions.
The selection of beneficiaries gets validated through Gram Sabhas, while identity is established
through Aadhaar wherever legally allowed. This leads to selection of right beneficiaries and
minimizes duplication and fraud. This has substantially enhanced the effectiveness of
government‘s efforts to tackle multidimensional poverty, going beyond income or expenditure
based poverty.
INTERNATIONAL INDICES TO MEASURE POVERTY
In recent years, international research agencies and institutions have, based on evidence
suggested a transformational change in the rate of poverty decline in India. Both in terms of
income and decline of chronic poverty as also in terms of multidimensional poverty, the
performance of India over the last two decades has attracted global attention.
World Bank defines poverty as deprivation in well-being comprising many dimensions. It

includes low incomes and the inability to acquire the basic goods and services necessary for
survival with dignity. Out of 17 Sustainable Development Goals (SDGs), to which India is
committed, the first two are “ending poverty in all forms and hunger". SDG1 is, by 2030 to
reduce at least by half the proportion of men, women and children of all ages living in poverty in
all its dimensions according to national definitions. India has not only committed to achieving
the Sustainable Development Goals (SDGs), it was a leading proponent of the first goal that
addresses the issue of poverty. This goal commits the signatories to eliminating poverty
according to the common international poverty line of $1.25 per person per day (at 2005
Purchasing Power Parity or PPP) and cutting it in half “according to national definitions”
(goals1.1 and 1.2, respectively).
The UN’s 2030 Agenda for Sustainable Development reaffirmed the importance of multi-
dimensional approaches to poverty eradication that go beyond economic deprivation. Various

international efforts to measure poverty along with implications for India are briefly discussed
below:
a) Global Multi Dimensional Poverty Index (MPI)
Launched in 2010 by the United Nations Development Program (UNDP) and the Oxford Poverty
and Human Development Initiative (OPHI), the MPI is a measure of multidimensional poverty
covering more than 100 developing countries5. It goes beyond income as the sole indicator for
poverty and tracks deprivation across three dimensions and 10 indicators as indicted below:
i). Education: Years of schooling and child enrollment (1/6 weightage each, total 2/6); ii).
Health: Child mortality and nutrition (1/6 weightage each, total 2/6);

iii). Standard of living: Electricity, flooring, drinking water, sanitation, cooking fuel and
assets (1/18 weightage each, total 2/6).
A person is multi-dimensionally poor if she/he is deprived in one third or more (means 33% or
more) of the weighted ten indicators. Those who are deprived in one half or more of the
weighted indicators are considered living in extreme multidimensional poverty. The MPI ranges
from 0 to 1, higher values implying higher poverty. It is the product of the incidence of poverty
(proportion of poor people) and the intensity of poverty (average deprivation score of poor
people). Presently, it is the most comprehensive measure of multidimensional poverty compared
to the conventional methodology that measures poverty only in income or monetary terms.
Global Multi-dimensional Poverty Index (MPI) 20186 frames India as a success story devoting a
separate chapter to India. It says, “India has made momentous progress in reducing
multidimensional poverty. The incidence of multidimensional poverty was almost halved
between 2005/06 and 2015/16, climbing down to 27.5%. The global Multidimensional Poverty
Index (MPI) was cut by half due to faster progress among the poorest. Thus within ten years, the
number of poor people in India fell by more than 271 million – a truly massive gain. The scale of
India’s scale of multi-dimensional poverty reduction has global implications that could parallel
China’s progress.”
Global MPI 2018 on India shows that during 2005-06 to 2015-16:
Among 10 selected countries, India (and Cambodia) reduced their MPI values the fastest and did
not leave the poorest groups behind. Fastest poverty reduction in India was among the country's
most vulnerable (including Muslims and residents of the poorest states) suggesting they are
"catching up" with the rest of society. India (along with Ethiopia and Peru) significantly reduced
deprivations in all 10 indicators, namely nutrition, sanitation, child mortality, drinking water,
years of schooling, electricity, school attendance, housing, cooking fuel and assets.

India demonstrates the clearest pro-poor pattern at the sub-national level: the poorest regions
reduced multidimensional poverty the fastest in absolute terms. Poverty reduction in rural areas
outpaced that in urban areas. Improvement in average attainment in all the above 10 indicators
among the bottom 40 % exceeded that among the total population. Global MPI 2020 Report 7
indicates that India is 62nd among 107 countries with an MPI score of 0.123 and 27.9%9
population identified as multi-dimensionally poor, the number was 36.8% for rural and 9.2% for
urban India. There were wide variations across states. District level data reveals deep pockets of
poverty but also impressive progress across the country The Global MPI Reports are providing a
more complete picture of who is deprived, how they are deprived, and where they live.
• They also capture the significant progress India has made in reducing multidimensional
poverty across the country.
• Global MPI is also part of Government of India’s decision to monitor the performance of
the country in 29 select Global Indices10 under the “Global Indices to Drive Reforms and
Growth (GIRG)”11 exercise.
b) World Bank Poverty Line
• Presently, the World Bank defines extreme poverty as living on less than $1.90 a day,
measured in 2011 purchasing power parity prices.
• However, measuring poverty through headcount ratios fails to capture the intensity of
poverty – individuals with consumption levels marginally below the poverty line are counted as
being poor just as individuals with consumption levels much further below the poverty line.
• World Bank has developed the ‘poverty gap index’ as an alternative way of measuring
poverty that measures the intensity of poverty, by calculating the amount of money required by a
poor household in order to reach the poverty line. In other words, it calculates the income or
consumption shortfall from the poverty line.
• The “poverty gap index” is denied as the mean shortfall in income or consumption from
the International Poverty Line ($1.90 a day in 2011 international dollars) counting the non-poor

as having zero shortfall, expressed as a %age of the poverty line. Poverty gap for India is
reported at 4.3% in 2011 down from 20% in 1977, according to the World Bank collection of
development indicators, compiled from officially recognized sources. There is a clear positive
correlation between the incidence of poverty and the intensity of poverty but is far from perfect.
For example, India and Bolivia have relatively similar poverty gaps (mean shortfall is close to
4% of the poverty line), but they have very different poverty rates (the share of population in
poverty in India is 21%, while in Bolivia it is 7.7%).
c) World Poverty Clock (WPC)
• WPC is a systematic analytical framework to measure progress towards SDGs by World

Data Lab. The World Poverty Clock (WPC) provides real-time poverty estimates until 2030 for
(almost) every country in the world. The World Poverty Clock (WPC) is a global model that
tracks poverty in real time. It uses publicly available data on income distribution, production and
consumption and bridges the common decadal gaps between large-scale surveys and censuses.
According to the WPC, for the last quarter century, the percentage of the world’s population
living below the extreme poverty line has reduced from 36% to 10% in 2015. That represents a
reduction from about 1.9 billion people living in extreme poverty to about 736 million in 2015.
While much of that progress is attributable to declines in South-East Asia and East Asia,
particularly China, the declines in this decade are due in substantial degree to South Asia,
particularly India. World Poverty Clock shows real-time poverty trends in India, which are based
on the latest data, of the World Bank, among others.
• As per recent estimates, the country is on track to ending extreme poverty by meeting its
SDGs by 2030. Current poverty level for India is shown as 4% based on USD 1.9 $ poverty line.
CURRENT “LEVEL” OF POVERTY IN INDIA
The last official estimate of Poverty in 2011-12 was released by Planning Commission at
21.92%, which was estimated using Tendulkar Committee approach. After that, no estimates

have been officially released. SDG 2019 Report by Niti Ayog also mentions Tendulkar Poverty
Line of 21.92% adopted in 2011 as the official poverty line. It is interesting to know that Global
MPI Reports 2019 and 2020 show India’s poverty line for 2011-12 as 21.2% ( for the year 2011-
12), based on World Bank’s 1.90$ poverty line for extreme poverty, quite close to Tendulkar
Committee based Poverty line. Some developments in recent years are briefly discussed below
a) Task Force set up by Niti Ayog
• In 2015, Niti Ayog set up a Task Force on Poverty under the then Vice-Chairman, Niti
Ayog, Prof Arvind Panagariya.
• The Task Force deliberated the issue of whether a Poverty Line is required. It was stated
that Poverty line and the poverty ratio have three potential uses: identification of poor; allocation
of expenditure on anti-poverty programs across states or regions; and tracking poverty over time
and across regions. In India, identification of poor is done by the State Governments based on
information from Below Poverty Line (BPL) censuses of which the latest is the Socio-Economic
Caste Census 2011 (SECC 2011).
• Allocation of expenditures on anti-poverty programs is also done using instruments other

than the poverty ratio. Universal programs such as those under the Mahatma Gandhi National
Rural Employment Guarantee Act (MGNAREGA) and Sarva Shiksha Abhiyan (SSA) are
available to all making the question of allocation moot. Hence, the main objective behind the
measurement of poverty is the need for tracking overall progress in combating poverty over time
and space.
Based on the work of the Task force and deliberations with states, the report of the Task Force
was submitted in July, 2016. The task force suggested four options for tracking the poor.
i) Continue with the Tendulkar poverty line;
ii) Switch to the Rangarajan or other higher rural and urban poverty lines;
iii) Track progress of the bottom 30% of the population;

iv) Track progress along specific components of material poverty such as nutrition, housing,
drinking water, sanitation, electricity and connectivity.
It was suggested that options (iii) and (iv) enrich our understanding of the progress in combating
various dimensions of poverty but they do not substitute the poverty ratio approach.
Improvements in expenditure levels of various deciles would not tell us precisely what the
incidence of poverty is without specification of a poverty line. Likewise, there is no agreed
approach to aggregating across various dimensions of poverty to arrive at a single indicator of
poverty. The advantage of the level of expenditure as an indicator of poverty is that it is
something we can directly observe and it closely correlates with poverty along different
dimensions. Hence it appears that while there are additional complementary approaches to
tracking poverty, none of them can substitute the poverty line based approach.
Without reference to a poverty line, we cannot determine whether a given household has exited
poverty. Tracking reduction in poverty requires a poverty line. This leaves to decide between
options (i) and (ii) above. Main criticism of the Tendulkar line is that being rather low, it risks
depriving many worthy households from government programmes by classifying them as above
poverty line (APL) households. The counterargument, however, is that if the objective is to
assess whether we are making progress in bringing households out of extreme poverty, it calls
for setting the poverty line at a level that allows households to get two square meals a day and
other basic necessities of life.
It is the households below this minimum acceptable subsistence level whose welfare should
concern us the most and whose progress we must monitor. Put differently, if we set the poverty
line at too high a level, we would be tracking what percentage of population that has already
achieved a certain level of comfort has been made yet further comfortable. It will fail to inform
us about the households in abject poverty.
• Thus, the sole objective behind the poverty line should be to track progress in combating
extreme poverty and not to identify specific households/individuals as poor for purposes of
government benefits. Hence, it makes more sense to set it at a level just sufficient for accessing
the basic necessities of life. On this ground, the case against the Tendulkar line is weakened.

Setting the poverty line at a level at which the individual has comfortable existence will not
allow us to assess the progress in the fortunes of those in abject poverty. The Task Force,
therefore, recommended that the final decision on this question needs to be informed by further
deliberations by paying adequate attention to the above aspect.
b) Updation of SECC Data
• Issue arises whether Socio Economic Caste Census (SECC) offer an alternative to
Poverty line. SECC allows schemes to be targeted for each of the inclusion criteria or deprivation
indicator. To an extent, SECC data is more robust and in tune with ground reality than the
traditional poverty line, which is based on consumption expenditure of households – Poverty line
basket (PLB).
• The threshold consumption expenditure is based on a certain assumption of what people

need to meet their basic needs. Since it is normative, it is also subject to debate and controversy.
• Secondly, the threshold is also based on household consumption survey on sample basis
and not a census of each and every household, unlike SECC.
• Thirdly, the SECC data is also extremely granular, with locality and house number as
well as details of family members, occupation, level of education, kind of house, ownership of
selected gadgets, among other things.
• The SECC is therefore useful for identifying potential beneficiaries of social programs
such as affordable housing, electricity, water and toilets but not for tracking overall poverty over
time. The SECC does not collect information on the overall income or expenditure of the
household, which may suggest whether a family is BPL. Even if we started collecting such
information, over time, there is high risk of household responses getting biased since they know
that their responses determine whether or not they would receive benefits under various social
schemes. To maintain the utility of SECC 2011 data, it requires updating in order to capture
consolidated view of benefits delivered, change in socio-economic status and use of updated data
to deliver pro poor public welfare programmes efficiently.

• Thus, the multi-dimensional SECC data could be used for identifying beneficiaries in
various schemes, while poverty estimates are relevant for tracking progress in combating overall
poverty.
c) Setting up Social Registry
• Social Registry is a dynamic information system on beneficiaries and benefits - to

promote inclusion of intended beneficiaries as well as synergies among welfare programmes. It
is being implemented in many countries- Chile, Brazil and Turkey - forerunners in implementing
Social Registry. Sumit Bose Committee had recommended leveraging the potential of SECC
data from simple database to becoming core of a social registry information system. It was
considered that repeated mounting of standalone SECC would be unnecessary drain on public
resources and could be avoided.
• It can be used for effective implementation of multiple programmes by using potential of

SECC and Adhar through development of integrated MIS interface with individual social
programmes. In India, Social registry like systems are presently being implemented in some
states such as Samagra in MP and and Bhimashah in Rajasthan
d) Multidimensional Poverty Index by Niti Ayog
• NITI Aayog has constituted a Multidimensional Poverty Index Coordination Committee

(MPICC) with members from relevant Line Ministries and Departments.
• Experts from OPHI and UNDP, as the publishing agency, have also been onboarded for
their technical expertise. Preparation of a MPI Parameter Dashboard to rank States and UTs, and
a State Reform Action Plan (SRAP) are at an advanced stage of development.
• The exercise is aimed at compelling states to take aggressive poverty reductions measures
by competing with each other. The results are also expected to feed into the UNDP’s
Multidimensional Poverty Index (MPI).

e) Shared Prosperity Goal: Tracking progress of Bottom 30-40%
• In addition to the goal of poverty reduction, in 2013, the World Bank Group has adopted
the shared prosperity goal that defines it as growth of real income of the bottom 40 %. It has
strengthened the Bank’s focus on inclusive growth, the bottom income deciles, and the broad
development agenda that includes inequality. India too could consider tracking the improvements
in the average standards of living of the bottom 30% - 40% of the population over time as a
complement to Poverty Line/MPI.
• We could then track progress in combating poverty by analyzing progress in the average
and median real expenditures of the bottom 3 or 4 deciles of the population over time.
• This approach reverses the conventional approach. Instead of taking a threshold level of
absolute expenditure as the poverty line and tracking the change in the proportion of the
population below it over time, it takes a fixed proportion of the population at the bottom to be
poor and tracks change in the fortunes of this population over time.
FIGHTING EXTREME POVERTY
It is well accepted now globally as well in India that poverty is multi-dimensional and only
through a concerted effort on its various dimensions, a real dent on poverty can be made. Global
evidence indicates that India is on track for the fastest pace of poverty reduction and meeting its
poverty elimination goals by 2030.
A two pronged strategy is in place to eliminate poverty, which lies at the core of India's national
development agenda. Maintaining an average annual GDP growth rate of 8 % in real terms is a
critical element of the strategy for the creation of remunerative jobs for new entrants to the
labour market as well as those facing redundancy in agriculture or other sectors.
• Secondly, targeted programmes aim to directly attack various facets of poverty and help
the poor. They facilitate income growth for the economically disadvantaged by developing
agriculture infrastructure and support services, creating productive assets, and developing skills

and entrepreneurship. Social protection measures and mitigation of risks from natural and other
disasters aim to ensure that unforeseen exigencies do not disrupt the poverty reduction efforts.
• Over the last few years, thrust on the poor and deprived households is reflected across a
range of interventions covering food security, nutrition support, housing for all with basic
amenities, education for all, universal health coverage, road connectivity, social security,
employment, livelihood diversification, skill development, etc.
• Pradhan Mantri Jan Dhan Yojana is ensuring financial inclusion of poor households by
providing universal access to banking facilities, access to credit and insurance cover. Pradhan
Mantri Jan Arogya Yojana (PMJAY) popularly known as Ayushman Bharat Yojana Scheme
aims to provide universal health protection to poor and vulnerable population. Quality homes for
the deprived under the PMAY with basic amenities like LPG, electricity, drinking water, toilet,
etc. are helping to bridge the deprivation gap.
• The thrust on durable assets that generate incomes (farm ponds, wells, goat shed, cattle
shed, housing support, etc.) through individual beneficiary schemes under the Mahatma Gandhi
National Rural Employment Guarantee Scheme (MGNREGS) for the poor households is a key
intervention for faster poverty reduction.
• With over 6 crore households mobilized into Self Help Groups under the DAY-NRLM,
the country is witnessing large scale social capital formation across the rural India. Use of the
SECC 2011 data for beneficiary selection along with the use of IT/Direct Benefit Transfer
(DBT), Aadhaar, geo-tagging, and other governance and financial reforms has transformed the
delivery of benefits to the poor.
• The expansion of all- weather rural roads under the Pradhan Mantri Gram Sadak Yojana
(PMGSY) has strengthened the ability of deprived households to leverage markets to their
advantage. The poor in India are experiencing transformational changes in the way they live and
access various services through digital means such as Common Service Centers (CSCs).

WAY FORWARD
There are two critical issues in the discourse on poverty in India. One relates to poverty
measurement. Second relates to effective poverty elimination. Poverty measures compare people
in a society, in order to assess the extent of unacceptable disadvantages that exist. Yet any
poverty measure is itself imperfect. Imperfections stem primarily from two factors: data
limitations and the diversity of human lives being assessed more so in a vast country likes India.
• Further, perceptions of what defines basic human needs vary widely according to income,
level of development, sociopolitical beliefs and other factors. This is why views on how the
poverty line should be defined vary widely. This makes the choice of a poverty line difficult.
• Poverty lines have to be recalibrated depending on changes in income, consumption

patterns and prices. In India, poverty measurement has repeatedly led to contentious debates on
poverty line. Despite these shortcomings, conceptually having a poverty line and related poverty
estimates help to concentrate the public policy discourse around an agreed set of numbers as well
as to track the progress in combating poverty.
• Over time, priorities have shifted with development in India. Today, aspiring poor seek
betterment in education, health, housing, skills and consumption, and not merely minimum food
and shelter. Therefore, poverty is now not just about basic food to keep body and soul together
but about living standards -sanitation, housing, piped water, electricity, education, health, and
jobs. Poverty line assessment if it were to be done presently cannot be based on minimum
expenditure on subsistence basket as done in the past.
• Further, the current corona pandemic has underscored the criticality of certain
"essentials”, access to quality healthcare, education and awareness, water and sanitation
facilities, adequate nutrition, and the need for living spaces where social distancing can be
practiced. The World Bank has classified India as a lower middle-income country and the
corresponding poverty line would be PPP $3.2 (2011 prices), which translates into roughly a
consumption level of Rs 75 per person per day.

• Over time, India will need to adjust to the new reality of the transition to a lower middle-
income country, in which poverty does not mean living at the edge of hunger but, rather, lack of
income to take advantage of the opportunities thrown up by a growing economy.
• Further, deprivations in different areas are positively correlated with one another. It may
be people who lack resources, also lack education, access to sanitation and clean water and
healthcare. These intersections of deprivation also add critically important dimensions to
understanding poverty, and in directing public policy to tackle it. In India, there is also a growing
recognition for the need for a multidimensional approach to move towards the vision of a
poverty free India.
• Global MPI is already providing useful information on deprivations in various areas and
at disaggregated level. Current project to develop Multi-dimensional Poverty Index (MPI)
spearheaded by Niti Ayog may be expected to provide poverty indices at national, states and
lowers levels of granularity with focus on multidimensionality. While multidimensional and
income measures of poverty capture different and sometimes divergent information, using them
in a complementary manner may provide a more complete view of poverty and better insights for
policy action.
• It is also important to differentiate between chronic poverty and sporadic poverty: the
former, a result of generations of deprivation and the latter, a consequence of a sudden crises or
short-term shock like current Corona pandemic. Studies of poverty have generally focused on the
state of being poor, rather than on the ‘dynamics of poverty’ – movement into and out of
poverty, and the processes and factors that determine this.
• Why are a large number of people in India persistently poor? What enables those who are
poor to escape from poverty? Why do a large number of people who are not poor become poor?
Studying poverty dynamics to answer these questions can bring new understanding of poverty
and well-being.

Second aspect relates to focus on poverty elimination. Crossing a minimum income or
consumption threshold does not imply that the lack of education or health will not force
households back into poverty.
• Evidence shows that India is successfully addressing multidimensional poverty through

diverse range of interventions. Alongside the average level of poverty, some of the important
socioeconomic indicators such as literacy, education, and health have shown considerable
improvement. Global MPI reports indicate what has succeeded and where are the significant
gaps for future policy formulation.
• However, the progress in poverty reduction and improvement in the socioeconomic

indicators in India has been marked by substantial inequalities. Poverty is concentrated both
spatially and among social and economic groups, and those most vulnerable to poverty include
landless labourers, marginal farmers, socially backward classes and people living in remote
areas. Global MPI reports have also highlighted wide disparities across states, districts and social
groups.
• The two-fold strategy of enabling the economy grows rapidly (with high employment
intensity) on sustained basis and attacking poverty and address disparities through social welfare
programmes remains relevant. Ministry of Rural Development’s programmes focusing both on
alleviating the poverty of households through MNREGA, NRLM, PMAY, DDUGKY, and the
poverty of regions through PMGSY, SPRM, SAGY are on right track.
The role of rural infrastructure in poverty reduction cannot be overemphasized. Better

infrastructure promotes the shift from low-productivity casual labour in agriculture to more
productive casual work in the nonfarm sector. It is also key to higher wages and assists in
improving literacy rates and school attendance.
• Thus, the poverty reduction payoffs to higher investment in rural infrastructure especially
in backward poor states are likely to be high. Mission Antyodaya 2020 findings have
comprehensively highlighted the gaps in socio-, economic infrastructure at the Gram Panchayat
level and may be used for interventions that address Gram Panchayat specific gaps.

• Markets and value chains for products can diversify rural economies and bring down
poverty on an even faster scale. Gains in health, education and nutrition outcomes can be
manifold through communitized approach to participatory development involving both PRIs and
community organizations like the Women SHGs.
• At global level also, India’s success in addressing multidimensional poverty is critical for
the realization of the ambitious sustainable development goals (SDGs) that aim to leave no one
behind. As the use of evidence-based policy-making has become widely advocated, it is
important to collect and use accurate data and relevant insights, to drive the design of welfare
programmes as well as ascertain their impact. SECC 2011 has already proved its immense
potential for beneficiaries targeting in several social welfare programmes.
• It needs to be updated at the earliest to avoid exclusion and inclusion errors as data tends
to become obsolete. A dynamic Social Registry would be highly useful to attainment of India’s
poverty elimination objectives. It would help policymakers make evidence-based decisions
by identifying trends and intervention hotspots, which mean public resources officials could be
directed more effectively. The more complete picture provided by the MPI would help monitor
the effectiveness of poverty reduction efforts, to understand which components of
multidimensional poverty are improving, and which are not.

1.3 DETERMINANTS OF POVERTY
POPULATION GROWTH AS A DETERMINANT OF IMPOVERISHMENT
Introduction
Man is the creator of all the wealth, said Karl Marx, and without man, all other resources remain
idle. Thus, man is the central focus point of all development efforts. Man produces wealth and
wealth is produced for the use of mankind. Hence, population of a country is a crucial factor in
the development of its economy.
• Population was one of the most important contributory factors in the ‘early development’
of Western countries. Increasing population provided additional hands to work and additional
pockets to buy the newly produced goods. However, beyond a point, the additional population
becomes a drain on our economy’s limited resources, more so particularly in the case of
underdeveloped countries. It further depresses the existing low levels of living, leaves no scope
for capital formation and adds to ever-growing stream of the unemployed.
• Hence, the rate of population growth has to be kept under check to achieve any
meaningful progress in the overpopulated underdeveloped countries.
Demographic Trends in India
India is the second largest country in the world in terms of the size of population. It is next to
China. India’s population constitutes nearly 15 percent of the total world population while her
geographical area is only 2.4 percent of the world area. India’s national income which is barely
two percent of the total global income clearly shows the tremendous strain of population on her
economy.

The Population Census 2011:
According to the 2011 Census Report, the total population of India was around 1210 million
(121.0 crore) as against 1028 million (102.8 crore) persons in 2001.

TABLE-1

Period of Rapid Growth (1921 onwards):
• From the year 1921, aptly described by the Census Commission for 1951 as the ‘Great
Divide’, the rate of growth became alarming. The net increase of population during the 30 years
from 1921 to 1951 was of the order of 110 million. During the next four decades, i.e. 1951-91,
another 485 million people were added to India’s population.
• This abnormal increase of population in India since 1921 was mainly due to a decline in
“abnormal deaths” from epidemics and famines and the overall decline in the death rate. The
population growth potential in India is high on two counts: first the base population is large and
second, a reduction of death rate without a corresponding decline in the birth rate is highly
improbable.
Average Annual birth Rate and Death Rate in India

Table 2

• Table- 2 indicates that the annual birth and death rate in India during 1951-61 was 41.7
and 22.0 per thousand resulting in a natural increase of 19.7 persons per thousand of population.
During 1961-71, the birth rate remained high at 41.2 per thousand while the death rate declined
to 19.0 per thousand, giving natural increase of 22.2 persons per thousand of population.
Similarly the decade 2001 to 2011 saw a further decline in birth rate and death rate.
• While the birth rate came down to 22.1 per thousand persons, the death rate declined
marginally to 7.2 per thousand. This resulted in a relatively small increase in the growth rate of
population; the national population growth rate being 14.9 per thousand as against 17.3 per
thousand in the previous decade. The addition to India’s population during the decade 2001-11
was around 18.1 crore persons. Reducing the birth rate however, is a much more complex matter
involving radical social adjustment which has hitherto been resistant to change.
Causes of Population Increase
Rapidly increasing population of India is a result of prevailing high birth rates and a large decline
in the death rate in our country. Thus analysis of factors which account for high birth rate and the
factors that have contributed to a large decline in the death rate is to be done.
The main causes for high birth rate are:
• The practice of early marriage is one of the main cause of the rapid increase in
population. This gives wider reproductive period.
• Poverty of the masses in poor villagers is the another reason.
• India’s tropical climate making for earlier puberty, her joint family system, the institution
of polygamy is also responsible for rapid growth of population.
• Lack of conscious family planning had also kept birth rate in India very high.
• The age and sex composition of the population and the fertility of women during the
child-bearing age in India are most helpful for rapid growth of population.

The main causes for decline in death rate are:
• Widespread and Improved medical and health facilities.
• Controlled spread of famines in India due to development of the means of transport and
communications.
• Control on dreaded diseases like malaria and TB and diseases like small pox, chicken
pox etc. have been completely eradicated.
• Improvements in hygiene in both rural and urban areas and supply of pure drinking
water.
• Improvements in overall economic conditions of the masses have contributed to the sharp
fall in the death rate.
It is clear from the above discussion that India is presently passing through a period of
‘Population Explosion’ due to her continuing high birth rate and a sharp decline in the death rate.
Theory of Demographic Transition
• This theory of Demographic Transition explains the effect of economic development on

the size and growth rate of population of a country. The theory refers to the rate of population
growth at various stages of economic development. According to this theory, there are three
distinct stages of population growth with the advancement of an economy which are caused by
the changes in the birth rate and death rate according to the changing socio-economic condition.
I. High birth rate and an equally high death rate that causes slow growth of population.
II. High birth rate and steeply falling death rate which causes population explosion.
III. Birth rate also falls to match the low death rate that slow down population growth rate

Population Explosion – An Obstacle to India’s Economic Development
• India today is grossly overpopulated. The Census of Population 2011 shows that we are
now having over one billion people in India. This means that the country has to support over 16
percent of world population on just about 2.4 percent of total world area. And as country is short
of capital and technology to fully exploit its resources, it means that most of the Indians live in
poverty, face unemployment and suffer from ill health.
• No wonder that in spite of half a century of development, over a fourth of India’s

population lives below poverty line. In the underdeveloped countries of today, increasing
population is more of a hindrance to the development of the economy. It is now universally
agreed that an effective control of population growth is necessary if our development efforts is to
yield any result.
Major Problems Created by Growth of Population in Development of an Economy in India
Following problems arise due to population explosion.
• Increasing population has eaten up much of the additional income that has been
generated in the economy during the period of the Five-Year Plans. As against a eighteen fold
increase in national income, the per capita income has gone up barely fivefold over this period of
five decades.
• Population explosion in India has resulted in a serious food shortage in the country. In
spite of the fact that more than seventy percent of the working people are engaged in agriculture,
Indian people still do not get even the minimum necessary amount of food. Increasing population
with the growing number of children adds more to the unproductive population of the
country.
• In India, due to population growth, by the end of 2009-10, the number of unemployed
persons was estimated to be over 66 million. The present estimate of unemployment in India by

many economists is nearly 80 to 90 million persons. Population growth hampers the growth of
capital formation and reduces volume of savings
• Increase in population reduces per capita income and lowers the standard of living of the
masses; it makes the people less efficient. Rural areas have become the worst sufferers. The
problems faced by the rural areas are lower per capita, availability of land; increased subdivision
and fragmentation of land holdings, disguised unemployment, increase in indebtness etc., which
all contribute to reduced efficiency and poverty in rural areas.
Conclusions
• In India rapid population growth has thus hampered economic growth and this prevented
any substantial reduction in poverty of the masses. To conclude, population explosion aggravates
the poverty, worsens the unemployment situation, reduces per capita income and increases
proportion of unproductive people, hampers capital formation and makes the people inefficient.
Therefore, an all out effort has to be made to reduce birth

1.4 PLANNING AS A DETERMINANT OF POVERTY
• India has implemented a large range of poverty alleviation programmes and schemes, in
recognition of the chronic and multidimensional nature of poverty, the prevalence of a geography
of poverty (its concentration in certain states) and the existence of a sociology of poverty (the
proportion of the poor is higher in certain social groups).
• The main occupational features of the poor are well-recognised: they are concentrated in
agricultural labour and artisanal households in rural areas and among casual labourers in urban
areas. Most are unskilled and food- insecure and lack assets; some are dependent on others.
• The main thrust of India’s policy alleviation strategy has been the use of economic
growth as a driver of employment and income for the poor and also to directly provide
employment and income support to the poor. The large number of programmes and schemes that
target vulnerable groups fall into the latter category. Direct attacks on poverty have provided
wage employment; support to asset building and self-employment; food, nutrition, skills,
education, housing and income support; and subsidies for especially vulnerable groups.
• Meanwhile, programmes with universal coverage, such as rural water supply and
sanitation, rural electrification and rural infrastructure, have also benefited the poor, directly or
indirectly. In recognition of the economic backwardness and concentration of poverty and
deprivation in certain parts of the country, and as the programmes evolved, area-based
interventions were set up, initially in desert and drought- affected areas or regions. This led to a
further typology among poverty reduction programmes, distinguished by their focus on ‘poor or
backward regions’ or ‘regions distinguished by specific disadvantage.’ For instance, the
Drought-Prone Area Programme, the Desert Development Programme and the Hill Area

Development Programme specifically targeted areas that also had an implicit disadvantage in
terms of land productivity, access to infrastructure and development of industry.
• From a number of precursor programmes (Nayyar, 2004) has emerged the Backward
Regions Grant Fund, which aims to support the development of 250 backward districts, with a
specific component targeting SC and ST categories so as not to bypass the poor. The various
targeted programmes, be these development-oriented or aimed at poverty reduction, reflect both
the evolution of approaches and the need for flexibility in the design of schemes depending on
the specific conditions of a region or economic environment.
• Evolution has occurred in terms of not just targeting or coverage, but also institutional
mechanisms for delivering projects or project services. For instance, forest conservation
programmes have moved away from a government- controlled approach to one of ‘joint forest
management,’ in which local people participate and in which management plans recognise the
livelihood needs of forest populations.
DO POVERTY ALLEVIATION SCHEMES ADDRESS THE DYNAMICS OF POVERTY?
• To be effective, poverty alleviation schemes need to address chronic poverty and th

dynamics of poverty. Table below lists some of the major direct and indirect poverty alleviation
programmes and schemes and categorises them into five groups, that is, those pertaining to
employment and self- employment; infrastructure and basic services; nutrition and education;
health and insurance; and programmes for specific groups.
• It tries to identify whether each scheme seeks to prevent entry into poverty, enable escape
from it or ameliorate persistent poverty and improve quality of life. If these schemes had been
adequate and effective, a significant dent would have been made in poverty.
• Why has this gamut of schemes failed to deliver the desired outcomes?
• Are there design flaws? Weaknesses in implementation? Inadequate funds? Errors of

exclusion owing to lack of access to scheme benefits resulting from an inability to obtain BPL
cards by those who deserve them?

• Inadequate provisioning amounts to a denial of services. Is the state evading its
responsibilities in this regard?
• Does non-availability lead to discretionary implementation and manipulation of

programmes and schemes by vested interests? (Arora, 1995).
• Some of these issues are analysed below in the context of the following programmes and
schemes:

• ICDS and PDS from schemes pertaining to nutrition and education, to understand
whether it alleviates hunger, ameliorates persistent poverty and improves quality of life;
• NRHM from programmes that prevent entry into poverty and are concerned with health-
related issues; and

• MGNREGA from schemes concerned with providing employment, raising income and
reducing the impact of poverty through work.
Food is clearly the foremost need of the poor, and those below the poverty line spend a very
large proportion of their earnings on food. India is one of four countries with the highest
prevalence of underweight in children under five (more than 40%). With 42% of the world’s
underweight children and 31% of its stunted children living in India (IFPRI, 2010), this is now a
global concern:
‘A hungry child sees roti [traditional Indian round flat bread] everywhere. A mother told her
child to see the round, white moon in the distance. With hunger pangs gnawing at his stomach,
the child said all he could see was a roti in the distance, as if to say, all he could see was his
hunger for food or roti in everything while access to it was as distant as the moon.’
Deprived children lack access to development opportunities and face serious constraints to their
development. A multitude of social, economic, political and
environmental factors have life time consequences. Micronutrient deficiencies in diet,
anaemia during infancy and maternal under-nutrition lead to poor brain development.
• Low birthweight among newborns has serious adverse implications, including stunting
and reduced intellectual development. This affects nearly one of every three children born in
South Asia (Mehta and Shepherd, 2004; M. Swaminathan, 2004).
• ICDS is one of world’s largest outreach programmes for

early childhood care and development. It was launched on 2 October 1975. It is
centrally sponsored and implemented through the state governments/ UTs. Care and health
services are provided in an integrated manner at the grassroots level through anganwadis. The
programme reaches out to children below six years and to expectant and nursing mothers. Most
children going to anganwadis belong to BPL families and relatively vulnerable sections of the
population.

• However, in view of the high levels of malnutrition among children in India, and
especially among children belonging to poor families, efforts are being made to universalise the
programme.
• The objectives of ICDS are:
1) to improve the nutritional and health status of children below the age of six;
2) to lay the foundation for proper psychological, physical and social development;
3) to reduce incidence of mortality, morbidity, malnutrition and school dropout;
4) to achieve effective coordination of policy and

implementation among various departments to promote child development; and
5) to enhance the capability of mothers to address the normal health and nutritional needs of
children, through proper health and nutrition education to lactating and nursing mothers aged 15-
45.
• The Supreme Court has ordered that ICDS be ‘geographically universalised,’ that is,
there must be an anganwadi in every habitation. A Supreme Court judgement dated 13 December
2006 ordered that the government sanction and operationalise a minimum of 14 lakh centres ‘in a
phased and even manner,’ between that time and December 2008, including identification of SC
and ST habitations for centres as a priority (Saxena and Mander, 2009).
Outcomes and issues needing attention
• Malnourishment levels remain extremely high among India’s children.
• Only just over half of children weighed in anganwadis were of normal weight.

• Meanwhile, there were sharp disparities between states/UTs in this regard. While no
children weighed in Arunachal Pradesh were malnourished, a shocking 95.64% of children
weighed in Uttarakhand were. Even states with a better economic development record, such as
Gujarat and Karnataka, showed close to 60% of children malnourished.
• At the national level, whereas 32.4% and 13.07% of children, respectively, were
moderately malnourished (Grades I and II), 0.4% of children were severely malnourished
(Grades III and IV). The highest levels of severe malnourishment were recorded in the Andaman
and Nicobar Islands and Uttarakhand, followed by Orissa, Jharkhand, Gujarat, Chhattisgarh and
Rajasthan.
• Drèze (2006) notes that Tamil Nadu provides an example of the potential of ICDS, since
96% of sample mothers in the state considered ICDS ‘important’ for their child’s well-being, and
half of them considered it to be ‘very important.’ However, in Chhattisgarh, Rajasthan and Uttar
Pradesh, immunisation services left much to be desired, and growth charts were missing, poorly
maintained or out of date in most cases. In anganwadis of Uttar Pradesh, children were provided
panjiri ‘ready-to-eat’ mixture. In Rajasthan, there was no variety, and many parents suggested
this was the major reason for poor child attendance.
• There was variety in Himachal Pradesh and Tamil Nadu, although in Tamil Nadu a
fortified, precooked ‘health powder’ was mixed with boiling water or milk for children below
two years, and a hot lunch of rice, dal and vegetables freshly cooked with oil, spices and
condiments, with occasional variants such as a weekly egg, was served to children in the three-
to-six age group.
• The FOCUS 2006 survey also found disparities with regard to physical infrastructure,
ranging from independent all- weather buildings with adequate space for ‘play-way learning’ and
separate spaces for storage and cooking in Tamil Nadu, to a one- room anganwadi in Uttar
Pradesh. In Maharashtra, anganwadis were located near primary schools, with a source of clean
drinking water as well as other essential facilities, such as furniture, utensils, storage containers,
toys, charts and related equipment.

• Where anganwadis are located in the home of the centre’s worker or helper, there are
frequent disruptions, as when guests are visiting the family. The rent budget for anganwadis in
the National Capital Territory of Delhi is just Rs 500-750 per month. Unless space is available in
a school or public building, which is rare, anganwadis are housed in small spaces such as house
verandas (Mehta and Ali, 2008).
• Problems with regard to the functioning of ICDS include poor quality of supplementary
nutrition provided; unsanitary conditions in and lack of regular cleaning of public spaces in
slums and jhuggi jhonpris (squatter settlements); poor and unsafe water; and lack of funds for
toys, weighing scales, charts, medical kits, mats, stationery, brooms, etc., which are inexpensive
but important sources of support (Mehta and Ali, 2008).
• With overworked supervisors; scattered geographical coverage; overloading of staff with

non-ICDS tasks; poor supervision owing to non-ICDS-related demands on time; lack of training,
skills and motivation of workers and helpers, it is hardly surprising the programme cannot make
a dent in malnutrition.
• The trigger for change in Chhattisgarh was the mitanin (‘friend’) programme launched in
2002 (in Saxena and Srivastava, 2009). Orissa used a similar approach. The mitanin is chosen by
the local community and trained and supported by a block training team, the auxiliary nurse
midwife and the anganwadi worker. The authors recommend the use of an outreach- rather than a
centre-based approach.
• In Chhattisgarh, for example, mitanins sensitise and counsel the entire family when they
come to weigh children and explain the significance of the malnutrition grades. They also argue
for independent verification of records, as anganwadi workers ‘have too many registers to
complete and are reported to be under pressure to enter “correct” rather than accurate data’
(ibid). Additionally, they recommend packaged foods be banned, involvement of panchayats and
mothers’ groups be increased and access to water and sanitation be monitored.

PUBLIC DISTRIBUTION SYSTEM
Background
• The PDS in India today is a part of the government’s food grains operations, which have
the twin objectives of price support to farmers who produce the major food grains and assured
supplies of food grains to the poor at reasonable prices.
• It is operated jointly by the central and state governments. The central government is
responsible for procurement, storage, transportation and bulk allocation of food grains. The state
government is responsible for distributing the grains to consumers through its network of fair
price shops (FPSs).
• State governments also hold the operational responsibilities, including allocation within
the state, identification of BPL families, issuing of ration cards, supervision and monitoring of
the FPSs. The PDS is a massive programme, often said to be the largest of its kind in the world
in terms of coverage. It comprises about 500,000 FPSs and supplies grains to an estimated 65
million poor households.
• In 2009-10, it provided 23.4 million tonnes of grain to consumers. Out of this, 6.4 million
were provided to the severely poor (Antodaya Anna Yojana, or AAY, card holders, a scheme to
provide access to food for the poorest set up in 2000) and another 10.4 million tonnes to the
remaining poor or BPL card holders.
• The remaining 6.2 million tonnes were purchased by non-poor households (APL car
holders).Total purchases by all households from the PDS made up 94% of the grain made
available. The percentage of purchases in the total allocation made available for distribution was
the highest in the case of APL (97.4%), followed by AAY card holders (95.9%) and then BPL
card holders (91.6%).
• The PDS has evolved over the past seven decades since its origins during the World War
II period and the Bengal Famine of 1943. Food shortages in the 1960s led to a streamlining of

the system, and increased availability of food grains as a consequence of the Green Revolution in
the late 1970s and 1980s saw the system extended to tribal areas and areas with high incidence of
poverty.
• The scheme had an urban bias for several decades, but has become increasingly pro-poor.
A revamp of the system in 1992 strengthened it in backward regions. The Revamped PDS
(RPDS) was launched in 1,775 blocks where area-specific programmes were being implemented,
such as the Drought Prone Area Programme, the Integrated Tribal Development Projects, the
Desert Development Programme and certain Designated Hill Areas.
• PDS infrastructure was improved in these areas, and food grains for distribution were
issued at 50 paise below the central issue price (CIP). Elsewhere, the entitlement was increased
to 20 kg per card from 10 kg. The RPDS sought to increase the effective reach of PDS
commodities and their delivery by state governments at FPSs, while providing additional ration
cards for households left uncovered and addressing requirements like additional FPSs, storage
capacity, etc.
• The revamp also expanded the basket of commodities for distribution through PDS
outlets to include tea, salt, pulses and soap on top of rice, wheat, sugar, kerosene and edible oil.
The PDS saw another major change in 1997, when it was renamed the Targeted PDS (TPDS)
and became more focused on supplying essential commodities to the poor. Grain was made
available to BPL households at 50% of the ‘economic cost’ to the government and to APL
households at the economic cost.
• Prices fixed in July and December 2000 for BPL and AAY households, respectively, and
in July 2002 for APL households, have not been revised since, even though the economic cost to
the government has gone up considerably.
• States/UTs fix the retail price after taking into account factors such as margins for
wholesalers and retailers, transportation charges, levies and local taxes. Under the TPDS, states
were initially asked to issue food grains at a difference of not more than 50 paise per kg over and
above the CIP for BPL households, which in turn was fixed at 50% of the economic cost. Now,
states/UTs can ignore this restriction, except for AAY households, for which the end retail price
is to stay at Rs 2 per kg for wheat and Rs 3 per kg for rice.

• AAY families today are supplied with 35 kg of grain per family per month, up from 25
kg per month in 2000 but at the same 2000 price. The allocation was increased from 20 kg in
2000 to 25 kg in 2001 for BPL households and, along with AAY and APL households, to 35 kg
per month in 2002.
• There has been a steady increase in the number of poor families the PDS covers. State
governments are responsible for identifying poor households to become eligible for BPL/ AAY
cards. However, there is a ceiling on the number of BPL households subsidised using central
funds. This is determined by Planning Commission estimates of poverty in each state and not by
the number of BPL cards each state issues.
• The PDS is supplemented by the midday meal scheme for students in government-run
and - aided primary schools, as well as a few additional programmes that seek to supplement the
nutrition of at-risk people.
The PDS and poverty reduction
• Given its essential character of assuring supplies of basic nutrition, recent initiatives on
food security are seeking to universalise the PDS to the entire population. This push is based also
on the argument that current methods of identifying the poor are extremely weak and that the risk
of excluding poor families from the system is extremely high. Evaluations have shown large
errors in this regard. A study of 16 states (PEO, 2005) found a rate of exclusion of the poor from
BPL card eligibility of 47% in Assam, 33% in Maharashtra, 30% in Bihar and 27% in Orissa.
• The exclusion error was less than 10% in Punjab and Andhra Pradesh. In Tamil Nadu, the
PDS was universal, so there were no exclusion errors. However, the ‘inclusion error,’ implying
provision of BPL cards to the non-poor, was high in Tamil Nadu, Karnataka and Andhra
Pradesh.
• There is also the problem of ‘ghost cards,’ where the number of cards issued exceeds the
number of households. The need to reduce corruption and ensure better targeting is clear. In a

study of the impact of the PDS on poverty, using data for 1986- 87, Radhakrishna (1997) shows
the impact of the untargeted and relatively less extensive approach had very little impact on
poverty. He estimates that, without the PDS, the poverty Head Count Ratio HCR might have
been only 2 percentage points higher.
• However, with better targeting, the impact on the poor may have increased.The current
PDS supports only a part of the poor’s food requirements. Desai et al. (2010), for both rural and
urban areas, found only 55% of BPL and AAY card holders who had consumed rice in the
previous month had bought it at a FPS, and only 13% had bought all their rice there.
• In the case of wheat, 44% of BPL/AAY families bought from a FPS and only 28% met
all their needs through the PDS. Desai et al. also report that 60% of children up to 5th Class
receive midday meals or free grains.
MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE ACT
Background
• MGNREGA guarantees 100 days of unskilled work at the minimum wage to each
household. It was passed unanimously in the Lok Sabha (the lower house of Parliament) on 23
August 2005. It came into force in 200 districts on 2 February 2006 and was extended to an
additional 130 districts in 2007-08. The Act was universalised with effect from 1 April 2008 and
now covers the entire country.
• The Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) is

not just another wage employment programme.
• It is legally enforceable, and changes can be initiated

only through constitutional amendment. It draws on India’s long experience
with wage employment generation schemes

• However, the reasons the poor did not buy wheat and rice from FPSs would likely
include lack of readily available funds; inability to buy more than small amounts at one time and
therefore a need to purchase small amounts frequently rather than the monthly amount all at
once; lack of safe and protected storage space; need to purchase on udhaar (through short-term
debt); inconvenient times and days of opening of the FPSs; and lack of availability of the grain at
the shop when they go to buy their ration.
• Most of these issues can be rectified. Clearly, the effectiveness of the PDS in meeting the
needs of the poor is also determined by the efficiency of the supply system. The programme is
implemented as a centrally sponsored scheme on a cost-sharing basis.
• The central government bears the cost of payment of wages for unskilled manual
workers; up to 75% of the material cost and wages of skilled and semi-skilled workers; and
administrative expenses towards the salaries of programme officers, their supporting staff and
gram rozgar sevak (village employment facilitators) as well as towards worksite facilities.
• The state government bears 25% of the material cost and wages of skilled and semi-
skilled workers; unemployment allowance payable in case the state government cannot provide
wage employment within 15 days of application; and the administrative expenses of the State
Employment Guarantee Council.

Impacts
• What are the achievements of MGNREGS so far?
• In addition to access to work, many of those who work on sites where MGNREGS is
being implemented are the chronically poor. Higher wages, reduction in the need for distress
migration, reduction in indebtedness and investment in community assets in the village are
among the key short-term impacts observed in some districts, as listed below:
• Greater economic and livelihood security during lean periods, as there is a fallback
employment option (Drèze and Oldiges, 2008; Sainath, 2008; Sudarshan, 2010a, 2010b).
• Increase in agricultural wages (CSE, 2008a; Kumar et al., 2010; MoRD, 2008; Singh,
2007).
• Reduction in distress migration (CSE, 2008a; Deccan Chronicle, 2007; Menon, 2008;
MoRD, 2008).
• Reduction in indebtedness (MoRD, 2008).
• Investment in productive community assets, such as roads, water conservation structures,

drought- proofing structures, flood protection, afforestation and plantation (CSE, 2008a; Menon,
2008). Increased participation of women, especially in Rajasthan and Andhra Pradesh (CSE,
2008a; Drèze and Lal, 2007; MoRD, 2008).
• Mobilisation of the poor for livelihood-related activities and strengthening of the process
of participatory democracy through economic decentralisation (Kumar et al., 2010).
• Women finding work convenient as it is close; no job search is needed; and the
government is a trusted employer. This has reportedly encouraged non- working women, widows
and the elderly to participate (Sudarshan, 2010a, 2010b).
• Payment of wages to those working on MGNREGS sites is critical to ameliorating

poverty. However, wages paid are significantly less than the stipulated minimum wage, owing to
application of a schedule of rates and measurement of work. Based on fieldwork in a few areas in

three states, Sudarshan (2010b) points to uncertainty with regard to wage payments, on two
counts.
• First, workers do not know in advance how much work needs to be done in order for
them to be eligible for the minimum wage.
• Second, there are names on the muster rolls of persons who are not actually present at the
worksite.
• And, even though the government of Rajasthan took the initiative of reducing the
prescription for calculating wages under MGNREGA by 30% in October 2007, as women and
old labourers were not able to accomplish their allotted tasks and thus were deprived of the
minimum wage, official data from Abu Road in Rajasthan confirm that wages paid are generally
below the minimum wage
• The track record of different states on implementing MGNREGS varies. Rajasthan’s

success in participation of households is attributed to the social audits initiated by the grassroots
social movement MKSS (Mazdoor Kisan Shakti Sangathan) and the Right to Information (RTI)
campaign.
• This has resulted in high levels of awareness (Ghosh et al., 2008). Rajasthan’s
government showed initiative in introducing revised wage/ productivity norms, so as to increase
actual earnings; later, in early 2009, it introduced regular training for ‘mates’ (site supervisors),
reduced the qualification required for women so as to encourage them to work as site supervisors
and set up a committee chaired by the Minister of Rural Development and including civil society
activists that meets once a month to discuss implementation issues (Sudarshan, 2010b).
• Social audits conducted by CSOs in partnership with the state government, and
digitisation of the entire process, from registration to pay order, are considered key to Andhra
Pradesh’s success (Burra, 2007; Menon, 2008). The state has made a radical move to
institutionalise social audits for all MGNREGS programmes to check corruption (Aiyar, 2007).

• Information pertaining to all card holders and works undertaken can be seen on the
website or at software kiosks across 657 tehsils (Venkateshwarlu, 2007). Sudarshan (2010b)
reports that in Kerala, the minimum wage of Rs 125 is paid to all workers for each day worked
on MGNREGS. This wage is well above the prevalent market wage for women (Rs 70-80), but
well below that for men (Rs 200 or above).
• Regular implementation of MGNREGS has created a shortage of agricultural labourers,

and in turn has led to some upward movement of female unskilled wages. In an assessment of the
official statistics and analyses by various agencies and researchers, Sharma (2009) notes that, as
compared with its previous version, the Sampoorna Grameen Rozgar Yojana, the scheme has led
to an improved share of ST households in employment and improved participation by women.
• The nominal wage rate in rural areas has increased as the scheme has unfolded, but real
wage rates have not. This study also points to large variations in the various outcomes across
states. For instance, women’s participation in employment generated is low in the northern
region. Nevertheless, there have been positive effects on the lives of the poor where the
programme has been implemented properly.
Overall successes and flaws
• The biggest success of MGNREGS is that it has given the right and opportunity to access
work to the poor as well as bringing issues of livelihoods, entitlements and corruption centre
stage. Social audits and reports mention that the programme has instilled a sense of security,
increased transparency and accountability in governance (Aiyar, 2007). Its major flaws are that it
offers ‘hard labour that ends in a wasted body and a surfeit of […] earth embankments’ that may
get washed away with the next rain (Handa, 2008);
• Generating awareness as to the availability of on-demand work and social audits is not
enough. If MGNREGS is not just another wage employment programme, and the purpose is to
‘create much-needed rural assets’ that raise agricultural productivity and create livelihood

opportunities, the next step has to be provision of technical support and skills to use MGNREGS
allocations to build quality assets that are sustainable.
• Works can be identified through convergence with, for instance, forestry departments, so
it is possible to address, in addition to income poverty, ecological poverty facing women in
provisioning water, grass for livestock and fuel-wood (Sudarshan, 2010a).
• In sum, while the many monitoring and auditing reports list planning and implementation
failures and tell us performance differs across villages and worksites; while deviations from
guidelines continue; and while delayed payment of wages and payment below the minimum
wage remain an issue; it is important to note that none of the audit reports mentions lack of
demand for work or villagers not needing the job opportunities MGNREGS creates.
• MGNREGS is self-targeting. There are reports of manipulation by vested interests, but

the major reason for failure to achieve outcomes is design flaws. If MGNREGS is to reduce
poverty, work must not be backbreaking and lead to emaciation and ill-health in difficult
conditions.
• And moving people out of poverty cannot be achieved by allowing just 100 days of work
per household per year. Committing to more effective poverty reduction requires increasing the
entitlement in terms of days; providing work on demand to all adults instead of limiting it to the
household level; and ensuring payment of minimum wages for work done.

1.5 CONSTITUTIONAL ASPECTS OF ANTI POVERTY PROGRAMMES
• Though ‘poverty’ as a term has not been mentioned in the Indian Constitution, the
Preamble, the Fundamental Rights and the Directive Principles of State Policy stand testimony to
the welfare state model. After observing the success of guaranteeing rural wage labour under
poverty alleviation schemes, the National Commission to Review the Working of the
Constitution proposed a constitutional obligation on the State to provide to the citizens ‘Rural
Wage Labour’ as a Fundamental Right and proposed the introduction of a new Art. 21B for this
purpose.
• The judiciary has stated in Basheshar Nath v. Commissioner of Income Tax Delhi, that
“The easiest way of depriving a person of his right to life would be to deprive him of his means
of livelihood to the point of abrogation…Any person…can challenge the deprivation as
offending the right to life conferred by Art 21.”
• Then again, it has been emphasized in Olga Tellis v. Bombay Municipal Corporation,
that “the country had so far not found it feasible to incorporate the right to livelihood as a
fundamental right in the Constitution because it had so far not attained the capacity to guarantee
it, and not because it considered it any the less fundamental to life.
• Advisedly, therefore, it has been placed in the chapter on Directive Principles, under Art.
41, which enjoins upon the State to make effective provision for securing the same “within the
limits of its economic capacity and development”. Thus even while giving direction to the State

to ensure the right to work, the Constitution- makers thought it prudent not to do so without
qualifying it.
• The constitutional responsibility is reflected via two modes: firstly, legislations reflecting
the broader and comprehensive perspective, and secondly, development policies and plans,
showcasing the tailor-made option.
LEGISLATIONS
• Legislations have been formulated with the poor as a focal point for several decades now;
in fact the agenda of the 15th Law Commission specifically stated that its terms of reference
were Law and Poverty which entailed:
• Firstly, examining the laws which affect the poor and carrying out post-audit for socio-
economic legislation and secondly, to take all such measures as may be necessary to harness law
and the legal process in the service of the poor.
• The most prominent of pro-poor legislations is the Legal Services Authorities Act, 1987
that gives statutory effect to the provisions of Art. 39A of the Constitution of India and aims at
providing free and comprehensive legal services to the indigent sections of the population.
Additionally, almost all legislations operating in any field whatsoever, whether it be labour laws,
civil law, criminal law, are bound to have certain provisions dealing with indigent issues.
• Fundamentally, it is through the social laws that a direct impact is ensured on poverty-
related issues. Several legal provisions dealing with issues of caste status, land reforms, child
labour and gender equality are in existence. Relatively recently, the National Rural Employment
Guarantee Act, 2005 was passed providing specific guaranteed wage employment every year to
households whose adult members volunteer to do unskilled manual work.
• Also, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 was passed aimed at ensuring security of tenure and access to minor forest
produce and other related rights for tribals and other traditional forest dwellers. Further

legislations with direct emphasis on poverty are on the anvil; the foremost being, the National
Food Security legislation, providing for subsidized food-grains to the poor.
What Ails the Legislative Approach
• The legislative approach suffers from the inherent pitfalls of democracy. Political
lobbying and the constant friction between the ruling party and the opposition have an immense
effect on the legislations being passed and the form that they take.
• The proposed National Food Security Act has already been diluted in the face of political
pressure.29 Furthermore, delinking food grains security from nutrition security greatly reduces
the intent and efficacy of the National Food Security Act. Critics are of the opinion that even the
proposed allocation of food- grains and the coverage of this legislative proposal are not
sufficient.
• Furthermore, the legislature has on occasion dragged its feet in passing legislations. A
case in point is the Street Vendors (Protection of Livelihood and Regulation of Street Vending)
Bill, 2009 where the Supreme Court intervened and directed the government to pass the Act by
June 2011.
• Lastly, a change of powers of the ruling government sometimes shelves certain

legislations entirely. Furthermore, there are numerous instances where the legislative intent is not
transcended into executive implementation; for instance, a recent study suggests that the key
intent of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 has been completely undermined due to apathy or intentional non-
implementation by the governance structures.
DEVELOPMENTAL PROGRAMMES

• Hardly any Five Year Plan has been passed which omitted to lay emphasis on alleviation
of poverty; what altered though was the mode of accomplishing this agenda. Initially, the
‘trickle-down concept’ was espoused; when this strategy could not realize the set targets
successfully, the need for ‘direct intervention’ in favour of the poor was recognized.
• Though these approaches buttress each other, there was no enterprise to integrate them.
Post the economic crisis of the early nineties, the mode of redressal of poverty mitigation was
reconceptualised. Though none of the phases of the development agenda has been fully
withdrawn, the emphasis on any one particular strategy is being gradually reduced and an
integrated endeavour being adopted with more import on a holistic approach.
• The initial holdup in policy formulation cannot altogether be blamed on the planners. In
the aftermath of independence, India had to contend with multiple variables viz. fiscal dilemmas,
the political mindset and leanings, wars and the international state of affairs.
• Thereafter, the direct interventionist interlude laid stress upon a multi-pronged approach;
it embarked upon crafting an income generating asset base via self-employment and creating
prospects of income transfer through wage employment and infrastructure development.
• Further, area development activities, target group development programmes and

programmes for special groups were also emphasized upon. Land reforms were also an essential
thrust of these programmes. Subsequently, programmes for social security and to provide basic
infrastructure for better quality of life were also initiated. Feedback studies revealed that direct
intervention could not succeed only by enabling the poor; structured schemes had to be
developed through which the poor could assist themselves.
• Moreover it was realized that poverty would have a propensity to lessen by advancing
contact with improved means. With the recognition of this multi-faceted projection of poverty,
there was renewed focus on human development with emphasis on health, education, minimum
needs and basic amenities, including welfare measures raising the social status of the weak and
poor and compensating them for their inadequate access to growth.

• In addition, programmes were conceptualised to make available proper water supply,
sanitation and housing and reduce regional disparities. Poverty alleviation is not merely a passive
redistributive function; it goes beyond simplistic targeted programmes and involves both
capacity- improving and safety-net policies.
• While programmes aimed at accelerating growth and directing its benefits will help to
reduce poverty in the long term, direct redistribution such as providing basic education,
healthcare and employment policies provide short-term safety nets to the poor.
• Thus circuitously, the wheel has come a full circle as the planners are attempting both
macro and microeconomic adjustments and patterning an arrangement operational on the
foundations of both the trickle-down effect and direct intervention along with proactive
voluntary initiatives.
Crucial Landmarks in Development Policies
• The concern with the low efficacy of the anti-poverty programmes transcended into
decentralisation and as a concept has been widely promoted and accepted.
• It was envisioned that a shift in the command base in planning and implementation from
the bureaucracy to a local democratic institution, would lead to improved accessibility.
Improving upon the Community Development Projects of 1952, the 73rd and 74th Amendment
to the Constitution of India imparted statutory status to decentralisation.
• Secondly, the Public Distribution System which evolved in the wake of food grain
shortages in the 1960s was a blend of producer-price support and consumer subsidy and was
promoted as a safety net facility; it was later streamlined and a targeted Public Distribution
System was introduced in 1997 under which families below the poverty line were specifically
addressed.
• Thirdly, policies eliminating child labour and enhancing employment opportunities for
women and disadvantaged sections of the population have also been given high priority.

• Finally, increasing influences of globalization, privatization and liberalization has led the
State to lose some of its pre-eminence as a developmental agency and opened the gates for other
actors viz. global multilateral agencies, international and national NGOs, and private companies.
What Ails the Development Programmes
• The programmes suffer from numerous defects including sub-critical investments,

unviable projects, lack of technological and institutional capabilities in designing and executing
projects, poor targeting of beneficiaries etc. Political leanings and interest groups play a strong
role in the materialization of strategies and implementation of development policies.
• Accordingly, the strategies of development policies change in light of possible

manoeuvring with succession and changes in polity. Besides, the programmes usually are beset
with problems like corruption, improper direction, lack of sectoral integration and undue
emphasis on time-bound target achievement.
• In fact, a relatively recent initiative on the part of the Planning Commission to curtail this
growing trend of unaccountability too died a political death. Highlighting this, the 10th Five
Year Plan states that weak governance, manifesting itself in poor service delivery, excessive
regulation and uncoordinated and wasteful public expenditure is one of the key factors hindering
growth and development.
• Casebooks are rife with instances where the judiciary has had to step in and ensure that
the executive arm does its job properly and ensures sufficient facilities to the indigent. In
People’s Union for Civil Liberties v. Union of India, the fact that starvation deaths had occurred
in Rajasthan despite excess grain being kept aside for famine was agitated. Various schemes for
food distribution throughout India were also non-functional.
• The Supreme Court, noting the right to life, stated “would the very existence of life of
those families which are below poverty line not come under danger for want of appropriate
schemes and implementation”. The Court found failure by the government to implement and
resource various food schemes and ordered specific measures to be effected

• Though efforts have been made to reverse the limitation of the top-down approach and to
enable the people to participate more actively in the implementation of the development
programmes, actualization of financial and administrative powers to these local bodies has been
dismally low. Local democratic institutions are still prone to capture by the village elite and are
generally ineffectual in influencing their individualistic styles of functioning.
• The bureaucracy still maintains the upper hand in expenditure disbursements and the
weakness in the democratic process provides them room to manipulate the welfare schemes and
recipient beneficiaries. There have been instances where the State itself denied to casual
labourers the mandatory minimum pay. The Supreme Court intervened and stated that “such
denial amounts to exploitation of
labour..
• The Government cannot take advantage of its dominant position, and compel any worker
to work even as a casual labourer on starving wages. It may be that the casual labourer has
agreed to work on such low wages. That he has done because he has no other choice. It is
poverty that has driven him to that state. The Government should be a model employer.”
• Paradoxically, even in a regime of decentralized governance, failures or partial success of

such policy shifts find elaborate explanations, but, often the feed back is relegated to a corner in
favour of fresh policy alternatives. In fact, in tune with this, recent government evaluations have
recommended measures to rationalize the multiplicity of schemes and improve their
effectiveness
• Poverty alleviation efforts also suffer from weak civil society action. Though the advent
of the Right to Information Act, 2005 has eased the situation somewhat by empowering the
people, the state of affairs is still a far cry from perfect.

• Besides this, at times, the grim realities of life have to be contented with, wherein
sometimes the impoverished themselves cause obstructions in the path of proper implementation
of pro-poor initiatives; a case in point being Delhi Development Horticulture Employees’ Union
v. Delhi Administration, where the petitioners were employed under a limited period wage
employment scheme for those below the poverty line.
• Afterwards, on the basis of the said employment, they claimed a right to regularization.
The Court held that “this could not be allowed as it would frustrate the scheme itself. They will
do more harm than good by depriving the many of the little income that they may get to keep
them from starvation.
• They would also force the State to wind up the existing schemes and forbid them from
introducing the new ones, for want of resources. This is not to say that the problems of the
unemployed deserve no consideration or sympathy.
• This is only to emphasize that even among the unemployed a distinction exists between
those who live below and above the poverty line, those in need of partial and those in need of full
employment, the educated and uneducated, the rural and urban unemployed etc.”
• In tandem with this are instances where the interest groups who benefit out of poverty,
attempt to prevent, restrict or divert the alleviating effects of such measures. An instance being,
the case of State of Gujarat v. Vora Saiyedbhai Kadharbhai with Somsinh Takhatsinh Rana,
wherein the State Legislature in order to save the poverty stricken debtors from the clutches of
non-institutional creditors, under a debt relief legislation relieved them of their debts to the
extent found necessary and had their properties given as security for their debts returned from the
creditors so that they could eke out their livelihood.
• The creditors approached the court contending that this was an unreasonable restriction
on them, violative of Art. 19(1)(g) of the Constitution, which granted them a right to practise
their profession. The Supreme Court held that “even if social legislations such as the one enacted
are to make a few creditors victims of such legislation in one way or the other, the same cannot

be regarded as an unreasonable restriction which cannot be imposed in respect of the rights
exercisable by the citizens under Art. 19(1)(g).”
JUDICIAL CHECKS AND BALANCES
• The judiciary has by default been charged with the unenviable task of keeping tabs on
both the legislature and the executive as regards the poverty alleviation agenda. Furthermore,
there have been several instances where the judiciary has been forced to take over the mantle of
the other two powers and perform their functions.
• A key development in this regard has been where the judiciary adopted an expansive
interpretation of Art. 21, bringing within its ambit almost all facets of poverty. The judiciary has
rendered judgments focusing on poverty in its various facets, such as the right to food, child
labour, beggars’ rights, debt-ridden farmer suicides, the homeless, street vendors, cycle rickshaw
pliers, pavement dwellers, slum dwellers and ascertainment of below poverty line families.
What Ails Judicial Monitoring
• Sometimes, the expectations from the judiciary are too high; to perform its functions in
addition to correcting the legislative and executive stance, so as to uphold the aspirations of a
population of more than a billion, a substantial portion of which is impoverished, is not an easy
task.
• This task is further burdened by the fact that the executive and legislature are not always
willing to maintain a complementary stand, or might even have separately motivated agenda of
their own. A case in point lies in the continued reports of farmer suicides, which indicate that
farmers are an impoverished lot.
• This coupled with increasing prices of all commodities would imply that there is
shortage. Reports, however, indicate that there is actually a surplus of food grains, with India

having ample buffer stocks. In fact, food grains are deliberately being allowed to rot. Clearly,
there is much wrong in the Government’s management of the food production and distribution
mechanisms.
• Ironically, despite being a democracy, this does not seem much different from the British
management which caused the Bengal famines in 1770 and 1943. Furthermore, there are
instances where the Government even lacked the compunction to give effect to the Supreme
Court’s efforts to rectify the situation.
• In view of such blatant mismanagement, legislations such as the National Food Security
Act would seem to be more of a lip service than to serve any actual purpose. On the other hand,
sometimes the judiciary can be overzealous, or its diktats too onerous to enforce, or of
unascertainable dynamics and criteria.
• An example being the recent judgment of the Supreme Court which states that poverty
could mitigate crime, even murder. While laudable, such a judgment is restricted to a case by
case analysis and subject to the leaning of the judge.
• Lastly, it is not possible for the judiciary to be a universal watchdog. A complementing

public initiative is a necessary requisite. While considerable public support has been forthcoming
there is always scope for more.
FALLOUT AND CONCLUSION
• It is now a recognized fact, that poverty is a multi-faceted phenomenon going beyond the
realms of lack of adequate income; it must be viewed as a state of deprivation spanning the
social, economic and political profile of the people that precludes their effective participation as
equals in the development process.
• This recognition has resulted in restructuring and reorganization of various poverty

reduction programmes. The formidable challenge faced by India at the time of independence was
in the form of a large subgroup of its population being poor. This was an institutional outcome as

well as the colonial legacy. During the last six decades, India’s tryst with poverty has met with
chequered responses.
• It is quite obvious that the institutional interface dictated the performance. It would be
incorrect to say that all poverty reduction programmes have failed. The growth of the middle
class that was earlier virtually non-existent indicates that economic prosperity has indeed been
promising in India, but the distribution of wealth has been extremely uneven.
• In the context of the new liberalized economic policy adopted by the Government, it will
be necessary to formulate a customized policy initiative for poverty alleviation.
• Understanding the changes in the institutional structure is a prerequisite of such policy

formulation. Mere formulation of a large number of innovative schemes and programmes for the
poor may not be adequate; a strong political commitment and a sustainable and healthy
development of the State economy are equally important.
• Vision and sensitization, flexibility and capability to adapt and indigenise,

responsiveness, continuity and sustainability are the fundamental key-structures of efficacious
governance. The policies formulated need to reflect the same in order to be congruent with the
needs of the target group.
• The responsibility of mitigating poverty cannot be that of the Government alone; it

requires the cooperative efforts of the civil society. Optimization of the strategies should be such
that the policies function in an atmosphere of both interdependence and independence
simultaneously, thus creating a synergy for yielding better functional linkages and collaboration.
• Pt. Jawaharlal Nehru had stated that “a society, which does not treat each of its members
as equals, forfeits its right of being called a democracy. To bring freedom in a comprehensive
sense to the common man, material resources and opportunity for appointment should be made
available to secure socio- economic empowerment which would ensure justice and fullness of
life to every man and woman.”

• In conformity with this, The Constitution of India envisions social justice as the arch to
ensure life to be meaningful and liveable with human dignity. The Constitution commands
justice, liberty, equality and fraternity as supreme values to usher in the egalitarian, social,
economic and political democracy. In a developing society like ours, law is a catalyst and
rubicon to the poor to reach the ladder of social justice.

CONSTITUTIONALITY OF CRITERIA OF POVERTY LINE AS A BASIS OF STATE
ACTION
• The 103rd Constitution Amendment Act introducing special measures and reservations
for ‘economically weaker sections’ (EWS) has been perceived as being obviously
unconstitutional. • The strongest constitutional challenge might not be to the amendment
itself but to the manner in which governments implement it.
• There is no foregone conclusion to a potential challenge and we would do well to start

identifying the core constitutional questions that arise.
Special measures
• Article 15 stands amended enabling the state to take special measures (not limited to
reservations) in favour of EWS generally with an explicit sub-article on admissions to
educational institutions with maximum 10% reservations.
• The amendment to Article 16 allows 10% reservations (and not special measures) for
EWS in public employment and does so in a manner that is different from reservations for
Scheduled Caste/Scheduled Tribes and Other Backward Classes.
• The amendment leaves the definition of ‘economically weaker sections’ to be determined

by the state on the basis of ‘family income’ and other economic indicators.
• Also critical to this amendment is the exclusion of SC/STs, OBCs and other beneficiary
groups under Articles 15(4), 15(5) and 16(4) as beneficiaries of the 10% EWS reservation.
• A good point to start the consitutional examination is the Supreme Court’s view on
reservations based purely on economic criteria. Eight of the nine judges in Indra Sawhney
(November 1992) held that the Narasimha Rao government’s executive order (and not a

constitutional amendment) providing for 10% reservations based purely on economic criteria
was unconstitutional.
• Their reasons included the position that income/property holdings cannot be the basis for
exclusion from government jobs, and that the Constitution was primarily concerned with
addressing social backwardness.
Basic structure doctrine
• However, the decision in Indra Sawhney involved testing an executive order against
existing constitutional provisions. In the current situation, we are concerned with a constitutional
amendment brought into force using the constituent power of Parliament. The fact that we are
not concerned with legislative or executive power means that the amendment will be tested
against the ‘basic structure’ and not the constitutional provisions existing before the amendment.
• The pointed question is whether measures based purely on economic criteria violate the
‘basic structure’ of the Constitution?
• It is not a sufficient answer to say that ‘backwardness’ in the Constitution can only mean
‘social and educational backwardness’. Citing the Constituent Assembly debates is not going to
take the discussion much further either.
• It is difficult to see an argument that measures purely on economic criteria are per se
violative of the ‘basic structure’. We can have our views on whether such EWS reservations will
alleviate poverty (and they most certainly will not), but that is not really the nature of ‘basic
structure’ enquiry.
• Providing a justification for these measures as furthering the spirit of substantive equality
within the Indian Constitution is not very difficult. Economic criteria (if seen as poverty) forms
the basis for differential treatment by the state in many ways and it would be a stretch to
suddenly see it as constitutionally suspect when it comes to ‘special measures’ and reservations
in education and public employment.

• Poverty inflicts serious disadvantages and the prerogative of the state to use special
measures/ reservations as one of the means to address it (however misplaced it might be as a
policy) is unlikely to fall foul of the ‘basic structure’ doctrine.
• A challenge to the amendment may lie in the context of Article 16 by virtue of shifting
the manner in which reservations can be provided in public employment. Under Article 16(4),
reservations for backward classes (SC/STs, OBCs) are dependent on beneficiary groups not
being ‘adequately represented’ but that has been omitted in the newly inserted Article 16(6) for
EWS.
• The amendment through Article 16(6) ends up making it easier for the state to provide
reservations in public employment for EWS than the requirements to provide reservations for
‘backward classes’ under Article 16(4).
• In a sense that is potentially a normative minefield for the Supreme Court. On the one
hand, it is confronted with the reality that ‘backward classes’ like SC/STs and OBCs are
disadvantaged along multiple axes and on the other, it is now far more difficult for the state to
provide reservations to these groups compared to the EWS.
• The response might well be that ‘representation’ is not the aim of EWS reservation and
questions of ‘adequacy’ are relevant only in the context of representation claims like those of the
backward classes under Article 16(4).
Questions and challenges
• In many of the responses to the amendment, breaching the 50% ceiling on reservations
has been cited as its greatest weakness. It is hard to see the merit of that argument because the
amendment by itself does not push the reservations beyond 50%.
• While it might be a ground to challenge the subsequent legislative/executive actions, the

amendment itself is secure from this challenge. But even beyond this narrow technical response,
the 50% ceiling argument is far from clear.

• In Indra Sawhney, the majority of judges held that the 50% ceiling must be the general
rule and a higher proportion may be possible in ‘extraordinary situations’. Fundamentally this
argument stems from an unresolved normative tension in Indra Sawhney. While committing to
the constitutional position that reservations are not an ‘exception’ but a ‘facet’ of equality, the
majority in Indra Sawhney also invokes the idea of balancing the equality of opportunity of
backward classes ‘against’ the right to equality of everyone else.
• When governments implement the EWS reservations and push quotas beyond 50%, the
Supreme Court will be forced to confront this normative tension. If reservations further equality,
what then are the justifications to limit it to 50% when the identified beneficiaries constitute
significantly more than 50%?
• The answer to that question might lie in Indra Sawhney’s position that the constitutional
imagination is not one of ‘proportional representation’ but one of ‘adequate representation’.
However, as discussed above, if abandoning the ‘adequacy’ requirement per se is upheld for
EWS reservations, the basis for a 50% ceiling becomes unclear.
• While the constitutional amendment by itself might survive the ‘basic structure’ test, the
hardest test for governments will be the manner in which they give effect to the amendment. The
definition of ‘economically weaker sections’ will be a major hurdle because the political
temptation will be to go as broad as possible and include large sections of citizens.
• But broader the definition, greater will be the constitutional risk. For example, if
beneficiaries are defined as all those with family income of less than ₹8 lakh per annum, it must
necessarily fail constitutional scrutiny. To justify that an individual ‘below poverty line’ and
another with a family income of ₹8 lakh per annum belong to the same group for purposes of
affirmative action will involve constitutional jugglery at an unprecedented level. But then, the
history of our constitutional jurisprudence has prepared us well for such surprises.

MODULE 2 LAW AND DISADVANTAGED
2.1 The Bonded Labour Abolition: Conceptualization, Administrative Processes under the
Act of 1976
Introduction
The concept of bonded labour in India is understood as another form of slavery which is an
amalgamation of inhumane exploitation and discrimination. It originates from underlying socio-
economic structures which can be mainly characterised as the "caste system" wherein the
majority of bonded labours belong to the Dalit or indigenous class of people like the Adivasis. In
the ancient Indian era, there was proximity between the occupational status and the caste of an
individual, the same system continues to be prevalent even today.
The entire mechanism of bonded labour was much more prevalent in the pre-independence
period, following which Article 23 of Indian constitution was drafted which prohibited the
practice of any form of forced labour and made all such practices punishable. Even though there
was a constitutional provision which prohibited any form of forced labour, the parliament failed
to enact a law which explicitly abolished the practice of bonded labour.
Post-independence several states like Orissa (Orissa Debt Bonded Abolition Regulation, 1948),
Kerala (Kerala Bonded Labour System Abolition, 1975) and Rajasthan (Rajasthan Sagri
Abolition Act,1961) enacted state legislations which penalised the practice of bonded labour.
Despite several states penalising the practice of bonded labour, there was no uniform law until
1976 which prohibited and penalised the practice of bonded labour.
The bonded labour system (Abolition) Act, 1976 (herein referred to as the Act) was enacted to
abolish the system of bonded labour to not only prevent physical exploitation of the people
belonging to weaker sections but also to ensure equality and right to life as enshrined under the

Indian Constitution. The Act defines a bonded labourer as "a labourer who incurs, or has, or is
presumed to have incurred a bonded debt".
The most significant feature of a bonded labourer is his loss of power to bargain i.e. lack of
ability to raise a voice against the creditor who subjects him to inhumane and unequal treatment.
When the labourer is unable to reimburse the debt to the creditor in a similar form, then he
renders services on conditions which are not only brutal but also inhuman and discriminatory.
The entire system is a representation of unequal exchange which not only represents severe
violations of human rights but is also a disgrace to the labour's dignity.
The bonded labour system is an outcome of a debt-bondage system under which the debtor
agrees along with the creditor that he would render services either himself or through his family
members for a time period without any form wages.
Constitutional Context of Bonded Labour
Under the Indian Constitution, Article 23(1) prohibits human trafficking and other forms of
forced labour and also provides that contraventions to this article are punishable in accordance
with the law. [3] In India, the scope and content of this article came in for judicial interpretation
in the case of People's Union for Democratic Rights Vs. UOI [4] (Asiad workers case) in 1982.
While disposing of the writ pertaining to the Supreme Court made the following observations:
All forms of forced labour were prohibited under Article 23 of the Indian Constitution.
Remuneration is not a criterion under bonded labour i.e. it is not important whether the debtor is
remunerated for his labour.
Wages below limits as per the minimum wages act would lead to forced labour.

If labour arises out of any form of compulsion or force it would come within the ambit of forced
labour and would therefore be covered by article 23 of the Indian Constitution.
All forms of labour are covered within the ambit of article 23 of the Indian Constitution, even if
the labour voluntarily enters into such a contract with the debtor. Forced labour can arise in
multiple ways like: physical force, force which is extended via a legal provision such as fines in
cases where the labour fails to provide services, and any forms of compulsion or force arising out
of hunger, poverty or destitution.
Apart from article 23, Directive principles of state policy under article 42 and article 43 of the
Indian Constitution also guarantee better working conditions for all. Article 42 provides for
humane working conditions at work and also ensures maternity reliefs for the female employees.
Similarly, Article 43 provides for the state to ensure liveable and good working conditions to
ensure a decent standard of life along with full enjoyment of social as well as cultural
opportunities.
In the case of Bandhua Mukti Morcha Vs. UOI, 1984 AIR (SC) 802, Justice Bhagwati gave a
very liberal, broad and an expansive definition to the bonded labour system in India. The court
went beyond the plain literal definition of Section 2(g) of the Act and broadened its scope while
interpreting the case. As per Justice Bhagwati's interpretation of this case, it was not necessary to
prove any element of loan, debt or advance beyond the reasonable doubt in a creditor-debtor
relationship as they belong to two diametrically opposite sectors of the society.
Since the debtor is usually poor, has lesser access to resources and in need of defence, whereas
the creditor is richer, influential and socially more dominant thus they are bonded in a
relationship which is based on unequal exchange. In this case, the main issue was about the mere

existence of bonded labour in a stone quarries factory. It was alleged by the workers that they
were compelled to migrate from various states and were then forced into a bonded labour system.
The workers also alleged that they lived in inhumane and miserable conditions and therefore
alleged a gross violation of the Act. The Apex court took into account the miserable conditions
which the workers were subjected too and also recognised the right of these workers to live with
dignity.
The entire system of bonded labour lies within the fact that there is an obvious existence of
social inequalities i.e. where one is more affluent than the other which in turn forces the weaker
individuals to depend upon the affluent individuals for their survival. Therefore, this unequal
dependence leads to immense brutalities. Despite having several legislations to protect the
bonded labour, this evil system continues to exist in Indian society. This system needs to
eradicate from the deep roots of our country as it strengthens caste-based discriminations and is
violative of the basic structure of our constitutional equality as is enshrined under Article 14 of
the Indian constitution.
At the same time, it is equally important to address the mental and physical trauma that bonded
labour is subjected too. They are deprived of basic human and fundamental rights which can
cause an immense effect in their overall wellbeing. In the case of Neerja Choudhary Vs. State of
MP, the court held that a mere identification and release of the bonded labour is not sufficient,
rather, after their identification and release they must be rehabilitated otherwise they would be
vastly subjected to poverty, despair and helplessness which would force them to become bonded
labour again. Therefore, to remove this system from the grass-root, rehabilitation of the bonded
labour is of equal importance.
The Bonded Labour System (Abolition) Act, 1976- Salient Features and Criticisms

Salient Features of the Act
The Act provides several safeguards against the system, to protect the bonded labour from
exploitation. Some of these safeguards are as follows:
The bonded labour stand discharged from every obligation to provide any form of bonded
labour.
The Act yielded every agreement/ custom void wherein bonded labour existed.
The Act freed every property which was mortgaged vis-a-vis recovery for bonded debt from its
commencement.
The Act also freed any person who was detained in civil prison in pursuance of a bonded debt.
As per the Act, once a bonded labour is freed, he cannot be evicted from the homestead.
The Act has made the offence of practising Bonded Labour punishable, with imprisonment of up
to 3 years and a fine up to two thousand rupees for any person compelling another individual to
engage in bonded labour.
Offences under this Act are cognizable as well as bailable.
Criticisms of the Act
Even though the Act has successfully provided relief to several Bonded Labourers and has
helped address situations wherein gross violations of human rights takes place, it also has some
loopholes which adversely affect its applicability and efficiency.
Some of the key issues are enumerated below:
The Bonded Labour System (Abolition) Act, 1976 is only a welfare legislation and is not a
labour law. Other labour laws address situations where there is employer-employee nexus,

however, the Bonded Labour System (Abolition) Act, 1976 is the reverse- it scraps off the
existing master-servant relationship.
Post-independence the government took more than 25 years to institutionalise bonded labour.
This shows the apathy government had towards the bonded labour. The reason for such lack of
concern may be due to the nexus between local goons who force individuals into bonded labour
or pay less wages than the statutory mandated and police officials. Also, since most of the
bonded labour come from the lower strata of society, they are bound to face caste discrimination
when dealing with state officials.
Section 10 of the act empowers a district magistrate to look into the rights of bonded labourers
and implement the provisions of the act. Section 11 mandates district magistrate to secure
economic rights of the bonded labour so that the person doesn't live in debt in future. However,
in reality, we see that sometimes there is a close nexus between landlords who abuse provisions
of the legislation and executive magistrate, this results in a much worse position for the bonded
labourer. Also, too much discretionary power is given to the executive magistrate which is not
reasonable. Instead, a committee should be formed which should comprise of members of civil
society, members from SC/ST and tribal communities, judicial magistrates and the executive
magistrate. This committee should look into social welfare and economic interest of bonded
labourers
Section 21 of the act empowers state governments to make executive magistrate as judicial
magistrate of the first class or second and then they can try alleged offences under this
legislation. Again, over here executive magistrates have been conferred with too much power.

Section 22 makes offences under this act as bailable such offences should be made non-bailable
as bonded labour takes away right to life of an individual and directly violates the constitution of
India. The non-bailable offence will further ensure deterrence in society.
Moreover, the real problem lies in the implementation. Failure of implementation of the
provisions of the Act can arise due to several factors like:
Lack of consciousness and knowledge
Lack of the prosecution of offenders
Lack of political as well as administrative will
Monetary, as well as social dependence
Brief Comparison between Bonded Labour and Contract Labour
Contract labours are employed for a fixed-term contract which maybe fixed in terms of time.
This ensures the employee with employment for a fixed duration. The contract could also be
fixed in terms of a project which ensures the employee that his employment is secured till the
completion of a project. Lastly, contract labours can also be employed seasonally, for example-
for agricultural purposes.
On the other hand, bonded labour occurs when an individual owes to some other individual and
there is no scope for repayment. In such instances, the debtor enters into a relationship wherein
he works for the creditor as a way to pay off the loan or debt. The nature of work and the time
duration for such work may or may not be defined. There are no contractual obligations in the
bonded labour system and this could lead to severe and gross violations of human rights.
Recommendations and Suggestions

Every individual is endowed with a right to live with dignity. The bonded labours have not seen
the light of the day and their right to live with dignity is mostly denied blatantly. Even though the
Indian Constitution and the Act provide legislations which provides for various protection and
prohibit the practice of bonded labour, however, the system is very much prevalent even in the
current times due to various implementation failures and other factors. There is an urgent need
for political as well as unconventional recommendations to eradicate this problem from the roots
of India.
One way is to deny the very existence of the problem. Such denial leaves no scope for its
eradication. Therefore, a pro-active role is a must on behalf of the State Government. The state
government must take measures to firstly identify the bonded labours in their territories,
secondly recognise and free them, thirdly provide rehabilitation facilities to them to prevent
relapse and lastly ensure that the offenders are punished as per the provisions of the Act
The current system fails to recognise double victimisation of women belonging to weaker
sections, particularly sexual and physical assaults. A separate provision must be added within the
Act which ensures safety for women and punishes the offenders. Considering, bonded labour is
legally abolished from India- sexual harassment of women at the workplace would not apply.
Therefore the addition of such a provision must be incorporated in the Act.
The police system must be revamped along with sensitising them. This would make them more
approachable for bonded labour. Currently, It is frequently noted that the police gets corrupted
by the offenders who are usually rich and powerful, which worsens the conditions of the bonded
labour.
People belonging to SC/ Dalits/ST and others who belong to the lower section in the hierarchy of
caste must be made an integral part of the civil society. The law alone cannot change the society,
like-minded and progressive people can. By giving the weaker sections position of power they
can get a social as well as a political recognition.

Currently, the monetary fine as a punishment for the offender is merely 2000 INR. This amount
is unreasonably low as the offenders are mostly rich and powerful. The fine should be increased
to reform the offenders which could subsequently decrease the practice of bonded labour.
Impact of Covid-19 on Bonded Labour System in India
The pandemic and the lockdown which India faced earlier has resulted in a massive loss of
livelihoods in the economy. The informal sector remains the worst hit. Many vulnerable
individuals and their families who lost their source of livelihood within the informal sector are in
an urgent need for funds for survival. However, with little or no savings and limited access to
state support, they fall at a greater risk of falling prey to the lenders who provide a credit on their
terms including debt bondage.
Now more than ever, there is a huge risk of workers likely to fall prey to contract debts to
support themselves and their families, thus increasing the risk of debt bondage. Many of these
vulnerable people have previously worked as bonded labour, however, with the sudden
lockdown which crippled their livelihoods, many of them have no option other than to borrow
money at the terms of the creditor and moneylenders to keep themselves afloat.
Even though the Apex Court had advised the NHRC to form guidelines to protect and
rehabilitate bonded labours during the pandemic, however, this seems to be inefficient due to
several factors like: such workers are usually untraceable, moneylenders tend to immorally
corrupt the police officers, and the bonded labour are usually blackmailed by the moneylenders
due to which they hesitate from speaking up against the creditors. It is undisputable that the
informal sector is the worst hit because of the ongoing pandemic and this has led to a massive
increase in the vulnerable people who fall prey to vicious moneylenders for their survival.

Conclusion
Abolition of the bonded labour system has been a constant struggle in India. There are several
problems which have to be addressed and tackled with. However, the two strongest reasons for
the existence of bonded labour system in the current times are firstly, the predominant caste
structure of India and secondly the extreme poverty.
Even though the Act read with Article 23 of the Indian Constitution declares the system as
illegal, there are several issues pertaining to its implementation which makes this system
prevalent even today. NHRC constantly encourages the state governments to conduct surveys
and provide rehabilitation to the bonded labours but the results continue to remain staggeringly
poor due to aforementioned reasons. Till the point the law does not instil its existence even at the
lowest sections of the society, it would be regarded as insufficient, despite having a statutory
recognition.
Therefore, preventive as well as reformative methodology must be followed. The bonded labour
system must severely be condemned and eliminated from the grass-root levels of the society.
Proper implementation of the existing laws and rules could work wonders and can actually make
the Indian society completely free from such forms of oppressive systems which restrict social
prosperity.1
2.2 The Scheduled Caste and the Law
The term “Scheduled Castes” is a legal designation. It was adopted in 1935, when the British
listed the lowest-ranking Hindu casteg in a Schedule appended to the Government of India Act
for purposes of statutory safeguards and other benefits. The concept “Scheduled Castes” is
relevant only in a context of statutory provisions, government programs and politics. Outside this
1
Mahak Tanwar, An Overview On Bonded Labour In India And Laws Related To It,
https://www.legalserviceindia.com/legal/article-5938-an-overview-on-bonded-labour-in-india-and-laws-related-
to-it.html, visited on January 5, 2022

context there are no “scheduled” castes. Rather, there is a diverse population, numbering 64.5
million at the last census, born into numerous communities, each with its own identity, traditions
and problems. While the communities may face similar problems, they are often deeply at odds
with each other. They were “scheduled” by the government and can be legitimately treated as a
single category only when dcaling with aspects of this relationship with the government.
GOVERNMENT P0LICY AND THE DEFINING OF SCHEDULED CASTES
That the government in India has assumed a wide-ranging responsibility for the welfare of the
Scheduled Castes is well known. Both in number of benefits involved and in the magnitude of
the group eligible for them, the Indian system of discrimination in favor of the most backward
sections of the population is unique in the world.
In brief: Seats are reserved in proportion to population in the Union and State legislatures, with
additional provision at other levels of government. Various reservations, often equal to or greater
than the proportion of population, are provided for direct recruitment and some types of
promotional posts in government service; a number of other concessions go along with them.
Reservations are also provided for admission to many higher educational institutions. Financial
assistance is granted under a variety of programs, notably in education. Roughly half the
expenditure for Scheduled Caste schemes under the Five Year Plans is for education, and another
quarter is for housing. The rest in for a welter of other welfare programs which, while small and
scattered, cover quite a wide range of benefits. Finally, to combat social discrimination against
the Scheduled Castes, there is a very comprehensive law, the Untouchability (Offenses) Act of
1955, and some expenditure on propaganda and related schemes. Since the 1955 law reverses the
onus of proof from accuser to accused when the accuser is a member of the Scheduled Castes, it
tends to be operative only for them.
There are also, of course, general development and welfare programs which are aimed at those
categories of population in which the Scheduled Castes are found in significant numbers. These
are intended to benefit the Scheduled Castes along with others. Here, the criteria of eligibility for
benefits depend on the kind of benefits involved. The difierence between these and the special
concessions is, really, that the latter add another criterion of eligibility which protects the

Scheduled Castes' interests by making other persons ineligible. This protective character of the
policy of favorable discrimination is one of its main features.
Another feature ofthe policy is that it is by definition temporary. Be- cause of the possible danger
to national integration and the risk of building what is called a “vested interest in the survival of
untouchability,” all sides have emphasized the temporary character of the benefits. The argument
for the policy is that despite the risks, it is the only realistic way to Proceed, Indian society being
what it is. To impose a legal structure of equality simply perpetuates the inequality, the
argument runs, so temporary inequality in favor of those at the bottom is essential. Caste
concessions provide an administrative shortcut for ensuring that the benefits get through to those
who need them the most; without the protective caste criterion, it is believed, the benefits
would be subject to abuses and diversion into other hands. In addition, the Scheduled Caste
leaders seem to feel that until they are adequately represented in the upper ranks of government
service, they cannot trust officials to administer other types of benefits in good faith.
Who are the Scheduled Castes and under what circumstances were they scheduled? Formerly
known officially as Depressed Classes, they were the Untouchables, now sometimes called “ex-
Untouchables” because of the legal abolition of untouchability. Untouchability is not defined
either in the Constitutional Article which abolishes it or in the law which punishes its practice.
The definitions of “untouchability” most often given in India cover two senses: First,
untouchability is the stigma attached to certain people because of the pollution they convey. It
is a stigma by caste; from birth, not from deeds performed; it lasts throughout life and cannot be
ritually eliminated. The concept of ritual pollution by caste pervades the whole traditional caste
structure, and untouchability, in this sense of the term, is con-ceptually no different in kind. It is
different only in degree and is used for that pollution-by-caste which is so great that the rest of
society segregates the members of these castes and protects itself against them.
In its second sense, “untouchability” refers to the set of practices engaged in by the rest of
society to protect itself from the pollution conveyed by the Untouchables and to symbolize their
inferior status. This is the most common use of the term. Untouchability is rarely defined in a
sentence ; it is usually described in terms of civil, social and religious disabilities.*

But there is much more to the problems and policies than how untouchability is defined. It has
always been assumed that the Untouchables not only have the lowest socio-religious status but
also suffer, as a group, from the worst poverty, ignorance and exploitation; that they are to be
found at the bottom of every scale because in traditional society the various systems are
intimately interrelated and interdependent. Whether or not the assumption is invariably correct,
the entire structure of official protective discrimination rests on it.
Indeed, one way of stating the policy is that it is intended to break down the traditional
correlation on which it is itself based. Some people will avail themselves of the opportunities
more than others will, and they will advance more rapidly in some ways than in others.
Eventually, it is expected, the social status of the castes concerned will catch up with their
advancement in other respects, so that the whole bottom-ranking category will be eliminated
and integrated with the rest of society. Another quite common way of putting the policy, then, is
that temporary statutory recognition is given to the existing separation of the Scheduled Castes in
order to make them unseparate. In much of the public rhetoric on the suliject, all the special
benefits are regarded as means to the removal of untouchability, the benefits being granted on a
caste basis because untouchability is a caste-related phenomenon. There is some conceptual logic
to this last point, but I submit that the historical logic, though not contradictory, was rather
different.2
The policy of protective caste discrimination was, after all, developed by the British. The present
government simply inherited the existing system. It greatly expanded the programs, but made
few substantive changes in policy. And the Depressed Classes were by no means the first to
receive special concessions. Under the British, special interest groups and communal minorities
were granted a number of safeguards or privileges, in eluding representation by nomination or
electoral concessions. In 1906, separate electorates were granted to the Muslims, who claimed
that their backwardness relative to the Hindu majority put them at a disadvantage, and that
therefore safeguards were necessary to assure them their fair share of any power to be transferred
from the British to the Indians. With each devolution of power from Britain, similar claims were
advanced increasingly by other communities as well.
2
Dushkin, L. (1967). Scheduled Caste Policy in India: History, Problems, Prospects. Asian Survey, 7(9), 626–636.
https://doi.org/10.2307/2642619, visited on January 5, 2022

The Depressed Classes were comparative late-comers. Few of them could qualify for the
Franchise, and those who could were politically so weak as to be of negligible importance but for
the sympathetic consideration they received from the British. Under the Montford reforms,
Depressed Class representatives were nominated to the legislatures. Later, when further reforms
were pending, it was evident that additional safeguards were likely to be granted them.
It was in this context that the depressed castes were defined and scheduled and their population
determined. Some provinces and states were already using Depressed Class lists, mainly for
educational concessions, but they had drawn them up using somewhat different criteria. In the
early ’thirties, for the first time, efforts were made to determine criteria which could be applied
on an all-India basis, and this also entailed some discussion of the nature of the problem for
government action. The 1931 census, the Franchise Committee, and the provincial authorities all
discussed the matter at length. They came up with somewhat di8erent lists, which were revised
more than once before being finalized in 1935.
The Scheduled Castes were to be the Untouchable Hindu castes, and these were defined as
“castes, contact with whom entails purification on the part of high caste Hindus.”° The Census
Commissioner, J. H. Hutton, set forth nine criteria to determine which castes were to be
scheduled.° The most important criterion, he said, was whether the caste suffered (1) civil dis-
abilities like denial of access to roads, wells or schools. Five more were religious and social
criteria: whether the caste (2) caused pollution by touch or proximity; (3) was denied access to
the interior of ordinary Hindu tem- ples; (4) was denied the services of “clean Brahmans”; or (5)
the services of the same barbers, etc., who served high caste Hindus; and (6) was subject to the
rules concerning acceptance of water. These six criteria were meant to include castes; the
remaining three were meant to exclude them: the caste was not to be scheduled if (7) an educated
member was treated as a social equal by a high caste man of the same education; or if it was de
pressed only because of its (8) occupation or (9) ignorance, illiteracy or poverty, “and but for that
would be subject to no social disability.”
The criteria were workable enough in many areas, but in parts of the South they broke down
because they would have included too large a portion of the Hindu population. Therefore, the
additional criteria of illiteracy and poverty were applied to select the most depressed. In the
northernmost provinces they broke down for the opposite reason: the lowest castes did suffer

from disabilities, but these were milder and so variable in detail that the criteria could not be
strictly applied without leaving out nearly all of those the authorities felt should be included. So
they were included by the same ad hoc secular criteria, illiteracy and poverty.
A number of the authorities, especially in U.P. and Bengal, expressed dissatisfaction with
Hutton's position. The Bengal Census Superintendent wrote a trenchant critique in which he
objected not only on the grounds of technical difficulties, but especially because the criteria were
Social and religious and if they did not involve civil disabilities “would be entirely irrelevant to
any consideration by government of the problem of the depressed classes.” Social and religious
matters were not then construed as a legitimate government concern, and civil disabilities could
be dealt with by better enforcement of legislation already on the books. It was, the
Superintendent argued, fictitious and inappropriate to define and list the Scheduled Castes by
their ritual status when the only legitimate concern of government was their secular status.
Sir Edward Blunt published his well-known book, The Caste System of Northern India, in 1931.
In it, as an ethnographer, he defined the depressed classes as: those castes who are not served by
Brahmans, yet have shown by their attempts to secure some trivial service from Brahmans that
they are desirous of securing their recognition.*
But around the same time, as a civil servant, he submitted a memorandum to the U.P.
Government in which he defined a depressed class as:
one whose social, economic and other circumstances are such that it will be unable to secure
adequate representation of its political views or adequate protection of its interest without some
form of special franchise concession.
Blunt was tallying aliout the same people, and his definitions suit the different purposes for
which they were issued. The latter definition states the reason that the Depressed Classes were
scheduled for statutory safeguards, and I submit that it was also for this reason that the lists and
concessions were retained at Independence.
GANDHI'S POSITION
If the British dealt with the Scheduled Castes in terms of their secular status, why did they define
them, at least ostensibly, on the basis of their socio-religious status? This point was not made

very clear. Apparently they acted on analogy with the other communal minorities receiving safe-
guards, and these were religious minorities.
Here Gandhi took issue with them. In his famous speech before the Minori ties Committee of the
Second Round Table Conference on November 13, 1931, he said:
Sikhs may remain as such in perpetuity, so may Muslims, so may Euro- peans. Would
“untouchables” remain untoucliables in perpetuity? I would far rather that hinduism died than
that untouchability lived."
Separate electorates and separate reservation would:
create a division in Hinduism which I cannot possibly look forward to with any satisfaction
whatsoever.... I cannot possibly tolerate what is in store for Hinduism if there are those two
divisions set up in every village. Those who speak of political rights of “untouchables” do not
know India and do not know how Indian society is to-day constructed. Therefore, I want to say
with all the emphasis I can command that if I was the only person to resist this thing, I will resist
it with my life.
He did so a year later. Under the Communal Award, the Scheduled Castes would vote in the
general electorate and would also choose a New Scheduled Caste representatives in each
Province by separate electorates. The British would adopt this provision unless the Indians
concerned could agree on an alternative. When Gandhi went on his Edie Fast unto death in
September 1932, he said it was not against the reserved seats but against the separate electorates.
Having conceded the first point he won the second.
The drama of the time is often regarded as a clash of personalities between Gandhi and Dr.
Ambedkar, leading spokesman for the Depressed Classes, and to some extent it was. But the
actual negotiating was done in a kind of all-parties conference, and a number of the caste Hindu
leaders who took part in it or later signed the Poona Pact that emerged might well have ignored
Dr. Ambedkar and the political claims of the Depressed Classes had not the British initiative and
the necessity of saving Gandhi's life forced them to reach a settlement. Under such pressure, it
took only five days to agree on terms for seats reserved in proportion to population and filled by
joint electorates. This basic equation remains in effect to the present day. Gandhi's other

contributions to Scheduled Caste policy can be mentioned only briefly. For him the basic
problem was untouchability, and untouchability was a sin. It was a deeply moral and religious
issue for him, and from the time he first appeared on the public scene and pushed the removal of
untouchability to the forefront of the Congress Party platform in 1921 until the time of his death,
he did more than anyone else to make it a public issue.*
The sin in untouchability was the “concept of high and low,” the hierarchical aspect of caste
wherever it might appear in society, under which degradation was inflicted on the castes
traditionally engaged in the dirtiest occupations. This was the sin of the caste Hindus. Only they
could expiate it, and throughout Gandhi's public career he exhorted them to do so actively and
immediately, without waiting for Independence or legal sanctions. It was they, not the
Untouchables themselves, who must lead the effort, a view which had little appeal for the
Scheduled Caste leaders. Gandhi's Scheduled Caste critics also regarded his term Hari jan
(“children of God” or “God's folk”) to replace “Untouchable” as condescending, and noted that
his followers tended to concentrate their propaganda effort less on the upper castes and more on
urging the Untouchables to give up the low customs believed to degrade them. But Gandhi
himself concentrated his own propaganda on the caste Hindu majority, and his contribution to
the unanimous consensus against untouchability prevailing today in the minds of the educated
public cannot be gainsaid.
In the role he assigned government, Gandhi agreed with the British that the removal of
disabilities was properly a matter of reform within the Hindu community. “Governments,” he
said, “cannot afford to lead in matters of reform,” and for this type of reform entailing a “change
of heart” above all, it would be most undesirable for them to try to. But his policy was one step
removed from the British hands-of( attitude of supporting the status quo. The government, he
said, should act to ensure that it was itself not an obstacle to reform. It should pass enabling or
permissive legislation giving legal recognition to reforms once they occurred. In the Provincial
Ministries of 1937-39, the Congress simply caFried further the existing British policies with this
one exception: some provinces passed modest Temple Entry or Removal of Disabilities Acts in
expression of Gandhi's policy.
THE PRESENT SITUATION

Since Independence, Gandhi's view of the role of government has been discarded. The
government not only can afford to lead in matters of reform, it is obligated to. And it has done so
through several Constitutional provisions and the very thoroughgoing Untouchability
(Offenses) Act of 1955. Government, in fact, is so tar in the lead that the Act to date has had
little effect. Only 2,900 cases were registered under it during its first six years, and of these, little
more than 600 resulted in convictions; most of the rest were either compounded or pending.
Gandhi's view that the reform work should go on outside the government has now taken the form
of official subsidies to voluntary agencies. Educated public opinion is not particularly concerned
with Scheduled Caste matters. No doubt ritual and secular status relationships among castes can
become local issues of some intensity, but these aspects of the problems of the Scheduled Castes
today cannot be said to be important pu6fic issues. Both by design and by default, then, most of
the responsibility today is assigned to the government.
The radical departure from the British and Gandhian policies just mentioned is the only major
change in policy since Independence. It has not resulted in a shift in the overall distribution of
official action programs, however, because of the considerable expansion in other fields. The
main areas of growth by kind of program are in economic, housing and other welfare measures.
But most of these are quite small in size and so variable in detail that they are difficult to assess
in the aggregate. In operation, the three main concerns of the protective discrimination policy are
still education, government jobs and political representation.
By all accounts, educational progress has been substantial. No comprehensive figures on
educational enrollment are at hand, but such data as do exist indicate a considerable increase.
While apparently not more than l % of the Scheduled Caste population receives Scheduled Caste
educational benefits under the Plan in any one year, others receive such benefits under non-Plan
programs, and still others, an increasing proportion, do so under systems where no caste criterion
is operative. There is no information on their relative distribution, so it is impossible to say just
how important the protective discrimination policy is in education today.
In government jobs, the picture is much less sanguine. The only quotas that are filled are at the
Class IV level (attendants, peons) . In the Central services, the Scheduled Castes hold only 1.3 %
of the Class I (senior administrative) posts, 3 % of the Class II (other administrative) posts, and
8% of the Class III (clerical) posts.*" The picture in the State Government services is no better.

Reportedly, Scheduled Caste candidates often past the written qualifying exams and then fail the
oral personality test, where they may perhaps still be suffering from those very class differentials
which the policy of reservations was designed to overcome. In any case, it will obviously be a
long time before their representation in the upper echelons of the administration begins to
approach their 15% of the population. On this, in turn, depends much of their resistance or
receptivity to the idea of doing away with the system of protective discrimination.
The reservation of seats in the legislatures is the only item in the entire system that has a time
limit on it. The initial provision was for ten years and applied to a system of double-member
constituencies. In 1959/60, to no one's surprise, reservation was extended another ten years; in
the following year double member constituencies were abolished (an event about which, at the
time, not only the public but also the press were singularly uninformed and unconcerned) . The
present system of reserved single-member constituencies will lapse in 1970 unless the
Constitution is amended again.
The Scheduled Castes account for one seventh of the electorate. Their geographical distribution
is such that in no Lok Sabha constituency do they form more than a fourth of the voters, and at
the Legislative Assembly level it in only in a few urban constituencies that their percentage goes
much higher than that. Even in some reserved constituencies it drops below 10%. Obviously,
then, Scheduled Caste candidates are dependent on non-Scheduled Caste voters for their election,
and this is a far more important political fact than any dependence which may occasionally
exist the other way around. Some cynics even aver that it has proved more convenient for the
Congress Party to buy 5cheduled Caste candidates than to win Scheduled Caste votes. Be that as
it may, Congress has tended to run stronger in the reserved than the unreserved seats.
Under the double-member system of the first two elections, in the double- member
constituencies alone, Congress won about equal numbers of reserved and unreserved seats. In
fact, the two winning candidates were almost always of the same party, whether Congress or
some other party. The voting system was designed to favor the Scheduled Caste candidates in the
hope that they might be able to win some of the general seats as well. Once in a while this did
happen and they got both seats, but very rarely.

With these exceptions, the double-member arrangement actually worked to their disadvantage
once the voting was over because of the well-founded belief that they were dependent for victory
on their running-mates’ coattails. In terms of power distribution alone, quite apart from surviving
caste preju- dices, they thus had a kind ot second-class status in the legislatures. Now that all
reserved constituencies are single-member, their position in the legislatures is somewhat
stronger, but it remains to be seen whether they can build a strong enough base among the voters
to enable them to survive the possible lapsing of reservations.
CONCLUSIONS
There are two observations to make concerning the problems and prospects of high policy. First,
in discussing the definition process, it was shown that the Scheduled Castes were defined on the
basis of their untouchability but not because of it. Then and now, they are defined on one basis
and dealt with, primarily, on another. It might be objected that this makes very little difference,
since one comes up with the same people either way. It is, in fact, a rather artificial distinction,
so long as they are the same people. But the policy is intended to break just that correlation and
becomes unfair precisely as it becomes successful.
Moreover, even today the distinction is by no means academic for the Buddhists. For them it is a
real one as regards both their sell image and their case for special benefits. Almost all the
converts to Buddhism came from the Scheduled Castes (mainly Mahars under Dr. Ambedkar's
inspira- tion) . Upon conversion they ceased to be Scheduled; they lost the benefits, if their
conversion became known, unless the State governments made special provision for them as
Other Backward Classes or “former Scheduled Caste” persons. If they had a case for protective
discrimination before conversion, they still have it now, especially by the secular nd fioc criteria
so often applied by the back door in originally listing the Scheduled Castes. That they want to
receive benefits as Buddhists rather than as another Scheduled Caste, and that they so often vote
for opposition (Republican Party) candidates, has not helped their case any on a practical level.
But both for them and for the logic of high policy itself, the dilemma is a real one.
Second, as indicated earlier that while there is a case in support of the view that all the special
measures of the government are, directly or indirectly, means to the removal of untouchability, it

would probably be more accurate, on the basis of other portions of that same public rhetoric and
a look at what the government has done, to turn it the other way around and say that efforts to
remove untouchability are but one of the means the government has adopted to advance the
general secular welfare of the Scheduled Castes. Here again, it might be objected that it makes
very little difference what one calls the end or the means if government does the same things
either way. At a pragmatic level, this is quite true. The policy issue arises when one recognizes
that the structure of special benefits is by definition temporary and when one attempts to cope
with ending it.
There are essentially three ways to do this: shifting the concessions to bases other than caste,
letting them lapse altogether, and taking castes off the list of those eligible. In all three cases, it
seems to me, considerations of long-range purpose and strategy become important, at least
conceptually. For example, when, how, and on what basis does the government decide that a
particular caste is sufficiently advanced to warrant its being taken off the list? By conducting
spot checks into the incidence of untouchability? Or by noting its literacy, educational level,
occupational and income distribution, and other indices of its secular condition available from
such sources as the Census? It is submitted that the government is much more likely to do the
latter than the former.
Moreover, a look at the action programs, as distinguished from the offIcial pronouncements,
indicates that the government already deals with untouchability somewhat differently from the
other problems. Nearly all the measures aimed directly at the removal of untouchability do not
involve the award of benefits to members of the Scheduled Castes: they involve subsidies to
voluntary agencies for propaganda and welfare work, grants to municipalities to improve the
living and working conditions of the scavengers and cope with attitudes toward the dirty
occupations, prizes to the villages that do the most to remove untouchability, and so on. These
can go on as long as untouchability does and do not require a list of Scheduled Castes. The only
exception is the Untouchability (Offenses) Act itself, which does require one but could
conceivably be amended.
If there was a good case for adopting protective discrimination in the past, then there is one for
continuing at least portions of it for some time to come. But there are many ways to do this, and
the decisions involved are political or have political implications. At present, political debate on

Scheduled Caste matters is desultory and press coverage meager, yet during the next few years a
political decision will have to be made concerning the future of reserved seats, and this is bound
to have major implications for all other aspects of the system of special benefits. Perhaps with an
eye on the future, the administrative offices most directly concerned show signs of devoting
more effort to data collection, evaluation and planning than they did a few years ago. And the
1961 Census has published Scheduled Caste & Tribe volumes for each State giving detailed
information, caste by caste, district by district. Moreover, in 1959 it was evident that a second
extension of reserved seats would meet with more resistance than the first extension did. In sum
then, the time for deciding on reserved seats in politics is a time for a general review of
Scheduled Caste policy, and it is possible that the review two or three years from now will be
less perfunctory than it was in 1959.
2.3 The Scheduled Tribes and The Legal Order
India holds the unique distinction of being both the world’s largest constitutional democracy and
one of its fastest growing economies. The Indian Constitution stipulates a parliamentary system
of representative government that reflects the will of the majority of the Indian people, but
safeguards the rights of, and creates special protections for, India’s many ethnic and religious
minorities. One such minority are the tribal communities, composed mostly, though not
exclusively of what are known as the “Scheduled Tribes”.
The Scheduled Tribes (“STs”) or adivasis consist of a number of heterogeneous tribal groups that
have historically self identified and been identified by the British colonial and independent
Indian state, as lying outside the mainstream of Hindu society, partly because of their “distinctive
culture and way of life as a group” and partly because of their “geographical isolation”. The
geographical isolation of the STs arose from the fact that the STs lived in hilly or forested areas
that were relatively less accessible to the majority of the population that was settled in the plains.
Unlike the settled agricultural activities of the majority of the Indian population at the time of
independence, the STs were historically engaged in a variety of traditional occupations including
shifting cultivation, collecting minor forest produce, and hunting gathering. Variously described
as “primitive” and “backward”, the STs were considered to have much lower levels of economic

and social development compared to the rest of the Indian population. Embedded within the
characterisation of “tribes” in India, are both evolutionary and historical perspectives, the former
describing tribal identity as deriving from a particular level of economic and social development,
whereas the latter identifying tribes by their aloofness from state and dominant culture at a
particular point of time in history. However, the separation between the tribes on the one hand,
and castes of Hindu society, on the other, has never been a rigid one. Tribal communities have
coexisted alongside mainstream Indian society since times immemorial, with often a blurring of
the boundaries between caste and tribe.
Article 366(25) of the Constitution defines Scheduled Tribes to mean “tribes or tribal
communities or parts of or groups within such tribes or tribal communities” as are deemed to be
Scheduled Tribes (“STs”) under Article 342 of the Constitution. Article 342 vests the President
with the power to declare by public notification “the tribes or tribal communities or parts of or
groups within tribes or tribal communities” as STs for a state or union territory. Pursuant to
Article 342, the President originally made two orders, in relation to the Part A and Part B states,
the Constitution (Scheduled Tribes) Order, 1950, and in 1951, a third order with respect to the
Part C states, called the Constitution (Scheduled Tribes) Order, 1951. Pursuant to these orders,
the President had notified 744 tribes in 22 states in India. These orders were modified in
subsequent years pursuant to state reorganisation. Currently, there are 750 tribes in 26 states and
6 union territories of India. Figure 1 indicates the distribution of tribes across all states and union
territories of India. This indicates the heterogeneity of tribal identity in all these states and across
the country

The relative percentage of the tribal population in India’s total population has gone up over the
last 68 years. The STs constituted 7% of the total population at the time of independence but
today, they constitute 8.6% of the total population, equivalent to 10.43 crore people.

The Constitution delineates special protective provisions for the Scheduled Tribes which
differentiates them from the rest of the Indian population along three parameters. First, the STs
have both individual and group representation within the Indian federal constitutional
framework, as opposed to individual representation for the vast majority of the Indian
population. Article 330 of the Constitution read with the Representation of People’s Act, 1950
provides for reservation of electoral constituencies in tribal majority districts for STs in both
Parliament and state legislative assemblies. The only other group that enjoys the privilege of
separately reserved electoral constituencies in Parliament and state legislatures are the Scheduled
Castes, who are historically disadvantaged communities within the mainstream of dominant
Hindu society.
Second, the Constitution stipulates affirmative action provisions that reserve 7% seats in
government funded educational institutions and government jobs for the STs.The percentage of
reserved seats for STs was allocated in accordance with their proportional percentage in the
population at the time of independence, and is not indicative of their proportional percentage in
the Indian population today. Again, the Scheduled Castes also enjoy this privilege of
proportionate population reservations in educational institutions and government jobs.
Third, Articles 244(1) and 244(2) of the Constitution carve out tribal majority areas from the
geographical land mass of India, that are designated as Scheduled areas in the Fifth and Sixth
Schedules of the Constitution, respectively. Here the Scheduled Tribes are unique because unlike
the rest of the population and unlike even the Scheduled Castes who have group based
representation and affirmative action provisions, the Scheduled Tribes are the only minority
group that have specially recognised rights to land in particular geographic areas.
The Fifth Schedule provides for the administration of tribal majority areas in ten states within
peninsular India that have tribal minority populations. That is, the population of STs in these
states is in a minority, compared to the population of the remainder of the state. The currently
designated Fifth Scheduled areas are in the states of Andhra Pradesh, Telangana, Gujarat,
Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, and
Rajasthan.

The Sixth Schedule provides the broad framework for the administration of tribal areas in the
northeastern states of Assam, Meghalaya, Tripura and Mizoram. Meghalaya and Mizoram are
tribal majority states, whereas Assam and Tripura are tribal minority states. The Schedule
envisages the creation of Autonomous Districts and Autonomous Regions (within the districts) to
be administered democratically by the indigenous tribal population of such scheduled areas as
opposed to the state legislatures. Meghalaya is the only state in the country where the President
has declared the area of the entire state as Sixth Scheduled Area. Map 1 indicates the states that
have demarcated Fifth and Sixth Scheduled areas.

Following the adoption of the Constitution, Parliament and state legislatures also enacted several
laws to safeguard tribal rights to land. These laws prohibit the transfer of land in the Scheduled
Areas from STs to non tribals. States like Sikkim, West Bengal, and Uttar Pradesh that do not
have any designated scheduled areas under the Fifth and Sixth Schedules have also enacted
legislation prohibiting transfer of land belonging to tribals, to non tribals. Moreover, Parliament
has also enacted the Panchayat Extension to Scheduled Areas Act, 1996 to devolve greater
political autonomy to tribals within the Fifth Schedule Areas and the Forest Rights Act, 2006 to
safeguard the rights of tribals and other forest dwelling communities to forestland. The Forest
Rights Act was enacted to overturn centuries of injustice involved in outlawing of forest
dwelling communities, mostly STs, by the British forest laws of the nineteenth and twentieth
centuries. Moreover, Parliament and state legislatures have also enacted a number of laws to
protect the Scheduled Tribes against atrocities.
The special constitutional and legal provisions were not only made in recognition of the
STs’distinct identity and geographic isolation, but also on account of their “underdevelopment”
vis-à-vis the rest of the Indian population and their interdependence with land, especially
forestland. These provisions represented a compromise between competing policy goals of
“integrating” and “developing” the STs on the one hand, and “isolating” and “retaining their
distinctive tribal identity and culture”, on the other.
However, despite these special protective provisions, in a country that is rapidly developing and
is currently the world’s fastest growing economy, the Scheduled Tribes lag behind the general
population on various social and economic indicators, like health, literacy, poverty, and
landlessness. Data from the Ministry of Tribal Affairs (“MoTA”) indicates that while the
national child mortality rate is 18.4 per 1000 live births, the same figure for the STs is almost
double at 35.8 per 1000 live births. Similarly, while the national literacy average in India is 73%,
the national literacy average for the STs is an abysmal 59%.
Poverty and landlessness is rampant amongst the STs. 47.1% of all STs are below the poverty
line in rural areas as compared to 33.8% for the national average, whereas 28.8% of all STs are
below the poverty line in urban areas.18 Inspite of being the only group with constitutional
protections for their land rights, 9.4 % of the STs are landless compared to 7.4% for the national
average.

While STs constitute 8.6% of the total population, it is estimated that they have constituted 40%
of all people who have been displaced from 1951 to 1990, some more than once, due to the
construction of dams, mines, industrial development, and the creation of wildlife parks and
sanctuaries. Only 24.7% of the ST population that was displaced during this period was
rehabilitated. Therefore, it is clear that these groups have disproportionately borne the burden of
economic development. And yet statistical evidence to document the correlation between dams,
mining and other forms of economic activity with the displacement of the STs does not exist.
The above dismal description of the plight of the Scheduled Tribes leads us to question why
despite the existence of special constitutional and legal provisions safeguarding tribal
representation and also the rights of the STs to land and natural resources, as well as special
affirmative action provisions for the STs, they continue to remain the most displaced, most
vulnerable and impoverished of all groups in India.
There is a plethora of secondary literature on the Scheduled Tribes that has focused on questions
of their tribal identity, poverty, vulnerability , displacement, and alienation from the Indian State.
But there doesn’t exist as much literature on the Scheduled Areas, or the specialised relationship
between the Scheduled Tribes and the Scheduled Areas. In fact, we do not even know exactly
how much of India’s geographical landmass is in the Scheduled Areas. Yet land, and especially
forestland is central to tribal identity, culture, and development. Displacement of the STs from
their land does not only make them economically vulnerable, but it also threatens to destroy their
cultural identity as a tribal group. This omission is particularly puzzling given that the STs are
the only group in the country that have recognised constitutional protections for their land rights.
This Report seeks to redress this omission.
Through an investigation of the constitutional, legal and policy frameworks grounding the
specialised protection of the STs, and the administrative and financial apparatuses that effectuate
those protections, as well as analysis of data regarding the current distribution of dams and mines
in the Scheduled Areas, the Report presents some insights on how the STs have been
increasingly marginalised by the processes of economic development.
First, our Report finds that though India was a pioneer in recognising special protections for
tribal or indigenous peoples in the Constitution, the fragmented protections for the Scheduled

Tribes and Scheduled Areas in the Constitution contradict the centrality of land to the identity,
economy and culture of the Scheduled Tribes. The creation of these fragmented protections was
in turn a product of two factors. First, it arose in part from the reality of the tribal situation, in
that even at the time of drafting of the Constitution, many tribal communities were no longer
located within the geographically isolated scheduled areas, while many non tribal communities
were resident there, some for several generations. The Constitution makers had to create
safeguards both for the tribal populations’ resident in the Scheduled areas and those that were
residing outside the Scheduled Areas. Second, it arose from the inherent contradiction in creating
geographically protected areas for the Scheduled Tribes, while at the same time imposing no
limitations on the movement of tribals outside those areas, and no restrictions on the movement
of non tribals to those areas. Indeed, given that the Constitution guaranteed to all citizens the
fundamental right to move freely throughout the territory of India, it is not clear how it could
have imposed such a limitation.
Second, thereis a fundamental contradiction between two narratives. One, that has characterised
the policies of the British colonial state; And the other, those of the independent Indian state. The
first narrative, that we call the “identity based isolation” narrative, identifies the tribals as a
“distinctive group outside mainstream Hindu society both in terms of their cultural traits and
geographical isolation”, who are keen to preserve their distinctiveness and their isolation. The
second narrative called the “development through integration” narrative identifies the tribal way
of life as backward compared to the mainstream Indian population, and seeks to improve their
economic and social indicators to “integrate” or “assimilate” them within the mainstream
population. The Report notes that while both the “identity” and “development” narratives
characterised the drafting of the constiutional protections for the STs, post independence policy
making was guided primarily by the “development” narrative. However, the Scheduled Tribes
have regarded the “development” narrative as both paternalistic and patronising, alleging that
this narrative does not seem to capture the aspirations of the tribal people to “develop according
to their own genius”.
Finally, through an excavation of archival data pertaining to the extent of geographical area in
the Scheduled areas, an evaluation of the shortfalls in financial allocations to the tribal peoples,

along with a plotting of the distribution of dams, forests, and mining in the Scheduled areas
which have been known to have caused the displacement of the tribal peoples, the Report notes
the successes and failures of state policy making guided by the “development” narrative, and
indicates how and why STs continue to be impoverished groups in India.
TRIBAL COMMUNITIES, EXCLUDED AREAS AND THE BRITISH COLONIAL STATE:

DOMINANCE OF THE IDENTITY/ISOLATION NARRATIVE AND THE STATE’S
POWER OF EMINENT DOMAIN FROM 1871 TO 1930
“Criminal Tribes”, “Hill Tribes”, “Eminent Domain”, and the “Scheduled Districts” under late
nineteenth century British rule
The British colonial state’s attempt to classify the Indian population faced many challenges, but
none greater than the problem of classifying the tribal communities. The Report of the
Ethnological Committee, 1868, classified tribal communities in India into the Kolarian
(northern) and Dravidian tribes. Through a comparative study of the customs and dialects of
various tribal communities described as “aboriginal”, the Report concluded that it was
impossible to generalise anything about the tribal communities, since their manner and customs
were peculiar to those communities. Though there were affinities of dialect amongst many of the
northern tribes, the classification of the tribes was based as much on their geographic location as
on their peculiarities of custom. Following this Report, significant legislative efforts were made
to classify and administer the tribal communities.
The Census Report, 1871, originally classified the tribes as “aboriginal tribes”, under the three
categories of “Aborigines”, “Semi-Hinduised Aborigines”, and “hill tribes”. That same year, the
British enacted the uniquely draconian Criminal Tribes Act for North India, which criminalised
millions of tribal communities as “habitually criminal” simply upon their birth in a particular
community, imposing restrictions on the movements of every member of these groups, and
forcing adult males from these communities to report weekly to the local police station. The
“criminal tribes” fell within the category of “semi Hinduised” aborigines and operated on the
margins of mainstream Hindu society. On the other hand, the “hill tribes” who lived primarily in
hilly and forested areas, were geographically isolated from mainstream Indian society. Upto the
decade of the 1870s, the Governor General in Council declared these tracts across the country

piecemeal as “backward areas”, and made special laws applicable to them on his executive
discretion or that of the Chief Commissioner of the provinces. These laws prescribed simple and
elastic forms of judicial and administrative procedures for “simple, primitive, unsophisticated
and frequently improvident” tribal people and sought to protect their lands from the “more
civilised” non tribals and save them from the “wiles of the moneylenders”. In 1874, the British
Parliament enacted the Scheduled Districts Act, which was the first measure to deal with all the
areas declared “backward areas” as a class. The Act formally vested the Governor General in
Council with the power to decide whether provincial laws should be applied to the particular
districts listed in the First Schedule to that Act. However, the British gradually acknowledged
that the term “aboriginal” didn’t quite capture the identity of tribal communities. The
Memorandum on the Census Report, 1881, even as it classified the tribes as “aboriginal”, noted
that the use of this terminology was “dubious”. “Aboriginal” indicated more that these groups
did not belong to the dominant Hindu, Muslim, or Christian religions, rather than having a
unified religion of their own. Indeed, there was little to unite the “hill tribes” with the “criminal
tribes”, and significant differences persisted between tribal groups within each category.
It may be noted that even as the British state created legal and administrative provisions to
“protect” the largely hilly and forested “backward areas”, where the “hill tribes” lived
predominantly, it exerted its absolute control over these areas pursuant to its claim of sovereignty
over Indian territory and its powers of eminent domain. The British state claimed “universal
ownership” over all land within British territory. In doing so, they claimed to have succeeded to
the “claim” and “title” of the “native rulers” who had preceded them. In pursuance of this claim,
the British state enacted a number of laws that gave it enormous powers to reshape and
redistribute property rights in India. Chief amongst these laws was a series of land acquisition
laws, which authorised the compulsory taking of property belonging to private individuals by the
state, forest laws that asserted state ownership of forests and derecognised the rights of forest
dwelling communities, and mining laws which asserted the right of the state to all resources in
the subsoil34. The Forest Rights Policy, 1854, had conferred limited rights on tribals to collect
minor forest produce, but the Forest Rights Policy, 1894, diluted tribal “rights” into “rights and
privileges” to be conferred at will by the British state.

British legislative and administrative efforts towards the “hill tribes” were paternalistic, and
sought to “protect” these tribes through “isolation”, even as the British state exerted increasing
control over their traditional habitats through the forest laws of the nineteenth century in the
exercise of its power of eminent domain. In contrast, the British isolated the “criminal tribes” in
an effort to protect mainstream society from their so called “habitual criminal” activities. Thus,
“isolation for protection based on identity” where the identity of the tribes was distinct from that
of mainstream Indian society was the policy of administration of tribal communities and tribal
regions until the end of the nineteenth century, even as these regions provided fertile terrain for
exploitation of forests and mineral resources by the British state. The narratives of “identity
based isolation”, either for protecting the tribes against “civilised society”, as in the case of the
“hill tribes” or for protecting “civilised society” from the tribes, as in the case of the “criminal
tribes” dictated state policy. Though cohesive internally within each tribe, the tribal communities
were completely heterogeneous and sometimes as distinct from each other, as they were from
mainstream “civilised society” in distinction from which they were identified.3
“Defining Tribe”, “Excluding Hill Tribes”, and “Rehabilitating Criminal Tribes” under early
twentieth century British rule
At the dawn of the twentieth century, for the first time, the British state attempted an organic
definition of “tribe”, as a loose grouping of three different types of tribal communities identified
on the basis of objective criteria and not simply in distinction from dominant Indian society. The
Report on the Census, 1901, identified tribes on the basis of three criteria: religion, profession,
and geographical location. Based on religion, the Report referred to tribal communities as
“aborigines or animists”; on the basis of their geographical location, “hill tribes, mountain tribes,
or forest tribes”; and on the basis of profession, “nomad and wandering tribes, gipsies, or wild
tribes”. The 1901 Census defined “tribe” as “a collection of families or groups of families
bearing a common name which as a rule does not denote any specific occupation; generally
claiming common descent from a mythical or historical ancestor and occasionally from an
animal, but in some parts of the country held together rather by the obligations of blood-feud
than by the tradition of kinship; usually speaking the same language and occupying, professing,
3
Wahi, Namita and Bhatia, Ankit,[2018] The Legal Regime and Political Economy of Land Rights of Scheduled Tribes
in Scheduled Areas of India http://dx.doi.org/10.2139/ssrn.3759219, visited on January 6, 2022

or claiming to occupy a definite tract of country.” This definition of tribe for the first time
included the geographical connection of the tribe and relationship to particular tracts of land.
By the time of the 1911 Census, the British further came to define “tribes” not as a “collection of
families” but as a “social group” in distinction to “caste”. According to the Census, unlike caste
whose basis was “economic or social”, the basis of the tribe was political. Though the members
of a tribe believed that they had a common origin, what held them together was “community of
interest” and “need for mutual defence”. Unlike “caste”, the “tribe” would also freely admit
aliens who “were willing to throw in their lot” with them. The 1921 and 1931 Censuses made
only minor changes to the classification of tribal communities, and the 1941 Census was
disrupted by budgetary constraints during World War II.
The twentieth century also saw the introduction of limited political reforms in British India in
response to the increasing demands for political autonomy from British rule by the Indian
freedom movement. The Montagu Chelmsford Report of 1918, which recommended dyarchy for
India, only mentioned the Scheduled districts to note that the reforms would not apply to them.
This was because the tribal people were “primitive”, and there was no material on which to
found “political institutions”.
The Government of India Act, 1919 divided the backward tracts into two categories: wholly, and
partially excluded areas. Some areas were wholly excluded from the purview of elected
provincial legislatures and fell within the jurisdiction of the Governor acting with his executive
council. In these areas, the provincial ministers were excluded from having any share in the
responsibility of the administration. A system of modified exclusion was applied to the other
backward areas, the reserved half of the dyarchical government being vested with power to
apply, or to refrain from applying any new provincial enactment. The focus of government
policy with respect to these backward tracts was to ensure to these primitive inhabitants, security

of land tenure, freedom to pursue their traditional means of livelihood, and a reasonable exercise
of their ancestral customs.
However, even under these new provisions, the rights of the tribal inhabitants were always
subordinate to the rights of the state under its forests and land acquisition laws. The Indian Forest
Act, 1927, which replaced the Indian Forest Act, 1878, allowed the state to “acquire” lands for
the purpose of constitution of forests very much in the manner of the Land Acquisition Act,
1894. On a parallel trajectory, the British state continued to be preoccupied with the situation of
the “criminal tribes”. Following the enactment of the Criminal Tribes Act, 1871, the penalties
against the criminal tribes had been stiffened between 1871 and 1911. In 1876, the Criminal
Tribes Act was extended to the Bombay Presidency and in 1911, to the Madras Presidency
covering all of British India. The introduction of the Criminal Tribes Act, 1911, was a turning
point insofar as it recognised that crime had declined significantly amongst the tribes and that
they had taken to a more settled life. Apart from protecting mainstream society from the criminal
acts of the tribespeople, for the first time in forty years, this Act also included provisions for
reforming the “criminal tribes” and integrating them into mainstream society. The shift in British
policy towards rehabilitation and integration of the “criminal tribes” within mainstream
“civilised society” continued in subsequent decades of the early twentieth century. The All India
Jails Committee Report, 1919, urged government to do more to rehabilitate and integrate the
“criminal tribes”. In 1924, a new Criminal Tribes Act was enacted which consolidated the
legislative changes made in various provinces.
FROM “EXCLUDED AREAS” IN BRITISH INDIA TO “SCHEDULED AREAS” IN

INDEPENDENT INDIA: OLD WINE IN NEW BOTTLE, OR RADICAL CHANGE?
In 1930, the Simon Commission, sent to India to evaluate the reforms initiated by the Montagu
Chelmsford Report of 1918 and instrumentalised by the Government of India Act, 1919, for the
first time recognised that perpetual isolation from mainstream Indian society was not the long

term solution for protecting tribal communities from exploitation. Instead, the “principal duty of
the administration [was] to educate these peoples to stand on their own feet”, noting that this
process had “scarcely begun”. The Commission’s observations reflected the beginning of a
debate about the future of the excluded areas, between British anthropologists like Verrier Elwin
and W. Grigson on the one hand, and leaders of the Indian National Congress and Indian
anthropologists like G.S. Ghurye, on the other.
The Congress opposed exclusion of the tribes, regarding it as a cynical attempt by the British to
cling onto power in India, and as harmful to the tribes, whose best interests lay in assimilation
with mainstream Indian society. British anthropologists, and later tribal activists like Jaipal Singh
however believed that some sort of isolation – whether temporary or even permanent – was in
the best interest of the tribes, because it allowed them to assert their autonomy from the
mainstream. Nevertheless, the Government of India Act, 1935 pretty much retained the
classification of “excluded areas” and “partially excluded areas” created by the Government of
India Act, 1919. In addition to these areas, the Act also defined certain “tribal areas”, which were
notified as “areas along the frontiers of India or Baluchistan which are not part of British India or
Burma or of any Indian or foreign state.” The “tribal areas” in the Northwest frontier became
part of Pakistan post- independence and need not concern us here.
The British Parliament justfied the decision for creating the excluded areas on three main
grounds. The first ground was one of “culturally distinct primitive identity”, the second ground
was that of “protection from exploitation by the mainstream” and the third ground was
“development” of the tribes, all of which supported the continuation of a policy of isolation of
the “hill tribes”.
The leaders of the Indian National Congress however repudiated these provisions for exclusion
in the Government of India Act, 1935, as “yet another attempt to divide the people of India” and
“to obstruct the growth of uniform democratic institutions in the country”, by a resolution
adopted at the All- India Congress Committee meeting in Faizpur. The Congress Resolution
noted that these provisions were “intended to leave a larger control of disposition and
exploitation of the mineral and forest wealth in those areas” with the British state and to keep the
inhabitants of those areas apart from the rest of India for their easier exploitation and
suppression”. The Congress Resolution articulated an alternative narrative of “development

through integration” that would characterise Indian government policies throughout the post-
independence period.
This “integration narrative”, expounded by Z. A. Ahmad in a 1937 paper called “The Excluded
Areas under the New Constitution”, was premised on the view that the British policy of divide
and rule, had preserved the tribal people in a state of underdevelopment, denying them education
and medical facilities in order to prevent them from developing a political and economic
consciousness. The British had inflicted economic wrongs on the tribes via special forest and
game laws, land laws, excise laws and a number of other enactments, all of which “were hitting
at the very root of the economic life of these people”, “virtually reducing them to the position of
chattel slaves or serfs of tea planters and other European adventurers”. Moreover, the British had
actively strengthened the tribal chiefs and moneylending classes to safeguard their own interests,
vesting them with enormous powers at the expense of the tribal communities. And finally,
British government had failed to take measures to provide extra funds to these areas for the
economic and social development of the peoples and impeded development of local self-
government.
Ahmad proposed an extensive list of policy alternatives for the tribal areas, which involved
political, legislative, and administrative integration of the tribal communities with the rest of the
Indian population; reform of land laws to protect tribal land rights, material development of
tribal areas through provision of economic and social infrastructure, including health and
education facilities.
It is clear that protecting tribal rights to land was central to the Congress agenda, but the
Congress was not prepared to recognise the sovereignty of the tribal peoples to lands in both the
excluded and partially excluded areas. Nor was it prepared to reform the land acquisition, forests,
and mining laws that would enable the independent Indian state to retain the same powers of
control over disposition of natural resources in the tribal areas.
The Congress was consistent in its philosophy of“development through integration” in their
approach towards the “criminal tribes”. The Report of the UP Criminal Tribes Act, 194756 noted
the complete absence of any data to suggest that even 25% of the members of the notified

criminal tribes were involved in a life of crime. Consequently, it recommended a complete repeal
of the Criminal Tribes Act and denotification of all listed tribes. Instead, the Committee
recommended the adoption of a “Habitual Offenders and Vagrants Act” in the province that
would be applicable to all tribes irrespective of caste, class, religion, sex and creed, thereby
abolishing the category of “criminal tribes” altogether. In 1952, the Indian Parliament adopted
this recommendation and enacted the Habitual Offenders Act, applicable to habitual offenders of
any religion, caste, or creed and repealing the infamous Criminal Tribes Act, 1871.
THE CONSTITUTIONAL FRAMEWORK GOVERNING THE SCHEDULED AREAS AND

SCHEDULED TRIBES
From the very outset, the Constituent Assembly was preoccupied with the situation of the tribal
communities and the excluded and partially excluded areas. The Advisory Committee on
Fundamental Rights and Minorities, constituted to represent the interests of all minorities was
tasked with preparing a scheme for the administration of the tribal and excluded areas. The
Committee’s preoccupation with the tribal communities however did not extend to the “criminal
tribes”, who while they experienced legislative reform during this period, did not receive any
special constitutional protections like the “hill tribes”. In line with the Congress’ position, the
Advisory Committee recognised that the solution to the problem of the excluded areas was
“development”, not “isolation”. The Committee recommended that the development of these
areas should not be left to the provincial governments with their limited financial resources and
competing claims. Instead, the Centre should play an active role in making schemes for these
areas and ensuring their implementation by the Provinces.
Within the Constituent Assembly, the debates on the tribal question are characterised broadly by
the narratives of both “identity based isolation” and “development based integration”, with much
greater emphasis on the latter. The narrative of integration encapsulates provisions for political
representation and affirmative action for tribal communities in the form of reservations in
government and educational institutions. On the other hand, the narrative of identity intertwined
with geographic location resulted in the creation of relative autonomy of tribal peoples in the
Fifth and Sixth Scheduled areas.

Nowhere is the contrast between the “identity based isolation” and “development based
integration” narratives stronger than in the views of Jaipal Singh on the one hand, and those of
Shibban Lal Saksena, Brajeshwar Prasad, and K.M. Munshi, on the other. Jaipal Singh, a
member of the Munda tribe from the forested plateau of South Bihar peopled by numerous tribes,
was the only tribal representative in the Constituent Assembly who spoke on the debates on the
Fifth Schedule. Describing the tribals as adivasi, or “original inhabitants” of the subcontinent,
Singh argued broadly in favour of the schedules as well as for reservation of seats in the
legislature and government jobs for the tribals. Singh saw the previous “6000 years” of tribal
history as the history of continuous exploitation and dispossession of the “non aboriginals” by
the “newcomers”–and saw the proposed constitutional provisions as a means to make amends.
In contrast to Jaipal Singh’s views, Shibban Lal Saksena regarded the existence of the Scheduled
Tribes and the Scheduled Areas as a “stigma” and hoped “that the STs and SAs would be
developed quickly so that they became “indistinguishable” from the rest of the population. Thus,
while Jaipal Singh highlights the “tribal problem” as one involving the “development of the
tribal peoples’ according to their own genius in accordance with their distinctive culture and way
of life”, for Shibban Lal Saksena, the problem of the tribals is no different from that of the Dalits
who have been systematically discriminated in Indian society. However, Saksena’s
characterisation is not true because while the “Dalit narrative” is one of “systematic historical
discrimination within the mainstream of caste Hindu society”, the “tribal narrative” is that all
these heterogeneous tribes have a distinct culture and way of life that is outside the mainstream
of Indian society. In other words, Dalits are seeking integration and respect within mainstream
Hindu society which has been denied to them for centuries. But the tribals are seeking
development on their own terms outside mainstream Indian society.
Nevertheless, the difficulty with Jaipal Singh’s characterisation of the tribal narrative is
highlighted by K M Munshi. Munshi notes that the tribal community is not one “conscious
corporate collective whole in this country so that someone can speak in its name or can lead a
movement combining them into a single unit.” Indeed, the problem of heterogeneity and disunity

amongst the tribes has remained a significant problem in articulation of their interests in the
national discourse throughout the course of independent Indian history.
Haunting the Constituent Assembly debates on the Fifth and Sixth Schedules is the spectre of
political disintegration given that the debates took place during the bloodbath of partition. The
fear of political disintegration is articulated by several members in the Constituent Assembly
particularly with respect to the debates in the Sixth Schedule, which provided for a significant
measure of political and administrative autonomy to indigenous tribal populations as compared
to the Fifth Schedule.
As ultimately adopted, Article 244(1) of the Constitution read with the Fifth Schedule provided
for the administration of variously described “tribal majority” and “backward” areas in nine
states within peninsular India that have tribal minority populations, that is the population of STs
is in a minority compared to the population of the remainder of the state. The President of India
can by order declare any area to be a Scheduled Area. According to the Fifth Schedule, these
areas are to be administered by the Governor of the State, in consultation with the Tribes
Advisory Councils to be appointed by the Governor. The Governor has powers to regulate the
application of laws of the State and the Acts of Parliament to the Scheduled Areas and to make
regulations for “good governance” of these areas.
Now, India is often described as a union of states. What that means is that we have a federal
system of government with a unitary bias. We have a parliamentary system of government where
the President and the Governors make decisions mostly on the basis of the recommendations of
their Council of Ministers. The implication of this for how Fifth Schedule areas are governed is
that there is considerable centralisation of power in the tribal areas with Parliament and state
legislatures.

Article 244(2) read with the Sixth Schedule provides the broad framework for the administration
of tribal areas in the north eastern states of Assam, Meghalaya, Tripura and Mizoram. It provides
for a system of scheduled areas called Autonomous Districts and Autonomous Regions (within
the districts) to be administered democratically by the indigenous tribal population of such
scheduled areas. Article 244(2) mandates that there shall be a district council for each
autonomous district consisting of not more than thirty members, of whom not more than four
members will be nominated by the Governor and the rest shall be elected on the basis of adult
suffrage. The Governor shall make rules for the first constitution of the District Councils and
Regional Councils in consultation with the existing tribal councils or other representative tribal
organisations within the autonomous districts or regions concerned. The elected members of the
district council hold office for a period of five years.
The Regional Councils have enormous legislative, financial, and administrative powers with
respect to allotment, occupation and use of land, the management of any forest not being a
reserved forest, the use of canals and watercourses, the regulation of shifting cultivation,
inheritance of property, the establishment of village and town committees, marriage and divorce,
and other social customs. The Regional Councils for an autonomous region and District Councils
within the Autonomous Districts have the powers to assess and collect land revenue, levy taxes
on lands and buildings in accordance with the principles of the state of which such councils and
districts are a part. But the federal and state governments retain powers to acquire land in
exercise of the power of eminent domain. In addition, they have the powers to grant licenses for
prospecting for mining in the Autonomous Regions and Districts, except that the state has to
share royalties with the District Councils as agreed to upon by the state governments. Like in the
Fifth Schedule areas, the President may by notification apply or restrict the application of central
acts, and the Governor may do so with respect to state Acts in the autonomous districts or
regions of any of these states.
Despite these provisions that grant relative autonomy to the tribal peoples, it is clear that the
Constitution does not recognise tribal sovereignty over land and natural resources in the Fifth or

the Sixth Scheduled areas. In line with its predecessor, the independent Indian State has claimed
sovereignty over these areas. There is only recognition of the special status of the tribal
population and state directed laws for their protection.
THE POST-COLONIAL DEVELOPMENT STATE’S TREATMENT OF THE SCHEDULED

TRIBES AND SCHEDULED AREAS:THE DOMINANCE OF THE “DEVELOPMENT
THROUGH INTEGRATION” NARRATIVE FROM 1950 TO 2000
Although both the “development through integration” narrative and the “identity based isolation”
narrative directed the formulation of the constitutional provisions for safeguarding the rights of
the STs in the Constituent Assembly, post-independence, we find that the “development through
integration” narrative dominated policy making with respect to the tribal population.
The Report of the Backward Classes (Kalelkar) Commission, 1955 classified the Scheduled
Tribes and Denotified (ex- criminal tribes) along with Scheduled Castes, women, and other
socially, economically and educationally backward classes as backward classes. It also identified
certain “backward” districts and recommended their classification as Scheduled Areas. The
Committee recommended various measures for the removal of social, educational, and economic
backwardness, all of which were aimed at the integration of all the backward classes, including
the Scheduled Tribes and denotified tribes in society.
A few years later, the Renuka Ray Committee on Social Welfare and Welfare of Backward
Classes, 1959 again defined “backward classes” to mean the “Scheduled Castes, Scheduled
Tribes, Denotified Communities, and other backward classes”. Again, the Commission expressly
recommended that the major objective of all social programmes that were targeted to benefit the
“backward classes” including the STs and denotified communities was their eventual integration
into a “normal community”. The broad priorities for the STs included their “economic
development and communications, education, and public health”. The principles guiding the
welfare services included not “imposing things on tribals” but rather helping them evolve in

accordance with their own genius and through their own social and cultural institutions.
Following a directive in the Constitution, in 1960, a commission was constituted to report on the
administration of Fifth Schedule areas, in particular the functioning of the Tribes advisory
councils, the application of laws to Fifth Schedule areas, and the exercise of the Governor’s
powers in these areas. This Commission known as the Dhebar Commission, after the name of its
chairman, recommended consideration of the following factors in the declaration of any area as a
scheduled area: (a) preponderance of tribals in the population
(b) the compactness and reasonable size of the area;
(c) the underdeveloped nature of the area; and
(d) marked disparity in the economic standard of the people. This Commision for the first time
post independence reiterated the “identity based isolation” narrative based on geographic
location, but at the same time, included the “backwardness” criteria that had been enunciated by
the Kalelkar and Renuka Ray committees, respectively.
The Dhebar Commission recommended that the benefit of the Fifth Schedule should also be
extended to the Union territories. It recommended the inclusion of additional areas of 58,897 sq
km along with a tribal population of approximately 45,00,000 to the Fifth Schedule areas. The
Commission noted its disappointment with the functioning of the Tribes Advisory Councils and
in line with Jaipal Singh’s recommendation in the Constituent Assembly, recommended the
creation of TACs in all states and UTs with powers to advise on and review all matters
pertaining to tribal areas. This was more so in relation to legislation for protecting tribal rights to
land and against exploitation by moneylenders. Finally, the Commission recommended special
financial allocations by the state governments to the scheduled areas. While the recommendation
with respect to special financial allocations by state governments to the scheduled areas was later
implemented as part of the tribal sub plan, the recommendation with respect to the creation of
TACs in all states and UTs was not.
The 1969 Report of the Advisory Committee on the Revision of the List of SCs and STs,
popularly known as the Lokur Committee Report, noted that while the Constitution has not

expressly prescribed any principles or policy for drawing up lists of STs, “primitiveness” and
“backwardness” were the tests applied in preparing the lists in 1950 and 1956 that were notified
by the President pursuant to Article 342. In submitting their revisions to those lists, the Lokur
Committee noted that they had adopted the following five criteria:
(a) indications of primitive traits,
(b) distinctive culture,
(c) geographical isolation,
(d) shyness of contact with the community at large and
(e) backwardness.
Correspondingly, they had excluded from the lists those tribes whose members had largely
integrated with the mainstream population.
Thus, despite reference to the “identity” narrative in the identification criteria of the STs,
“development through integration” remained the goal of the government’s policy objective
regarding the tribal communities in the first two decades post independence. This narrative
dominated the Lokur Committee’s recommendations, because they noted that the more advanced
communities in the ST list should be gradually descheduled, because only then could “complete
integration” be achieved.
In line with the “development through integration” narrative, in 1978, the Government of India
created a multi member Commission for Scheduled Castes and Scheduled Tribes, to conduct
studies on the social and economic conditions of both backward communities. Following a
constitutional Amendment in 1990, the first National Commission for Scheduled Castes and
Scheduled Tribes was set up in 1992 under the chairmanship of Ram Dhan. The NCSC&ST was
charged with investigating and monitoring all constitutional and legal safeguards for Scheduled
Tribes, and to enquire into specific complaintsregardingtheviolationofthesesafeguards and rights,
to participate and advise on the planning process regarding the socio-economic development of
Scheduled Tribes, and to evaluate their progress in discharging any other functions related to the
protection, welfare and development of Scheduled Tribes.

However, following this, there was a growing realisation on part of Parliament and the executive,
of the need to attend separately to the needs of the Scheduled Tribes from those of the Scheduled
Castes and other backward communities. This resulted first in the creation of a separate
department for tribal affairs within the Ministry of Welfare in 1985, and then in the Ministry of
Social Justice and Empowerment in 1998, followed eventually by the creation of a separate
Ministry of Tribal Affairs in 1999.
Even as these changes were happening, in 1994, the Ministry of Rural Development constituted a
select committee of experts led by Dileep Singh Bhuria, to consider the extension of the
provisions of the 73rd and 74rd constitutional amendments, which introduced elected local
governments in the form of Panchayats and municipalities in rural and urban areas, also to the
Scheduled areas. The Bhuria Committee recommended the enactment of the Panchayat
Extension to Scheduled Areas Act (“PESA”), and the Municipalities Extension to Scheduled
Areas Act (“MESA”). In 1996, Parliament accepted the Bhuria Committee’s recommendation to
enact the PESA, but almost twenty-five years after its recommendations were made, MESA has
still not been enacted.
The recognition of the need for separate and focused treatment of the Scheduled Tribes
continued into the twenty first century with the Bhuria Committee Report, 2002, which for the
first time in the post-independence era seriously questioned the dominance of the “development
through integration” narrative with respect to the Scheduled Tribes. It noted that the tribal people
rejected the oft reiterated “dictum” in previous government reports that “objective of tribal
policy should be that the tribal people join the mainstream”. Finding this approach “not only
paternalistic but patronising”, the Bhuria Committee noted that the tribal people were “averse to
attempts, overt or covert that aim at their assimilation.” Instead, they wished to “preserve the
integrity of their culture, and personality.”
The Bhuria Committee Report further stressed the importance of “land and forests” as the two
basic resources of the tribal life support system, which had been “assaulted” by the processes of
“accelerated urbanisation and industrialisation”. The Commission made a series of
recommendations, including maintaining the sanctity of the Scheduled areas, introduction of

prohibition of ST land alienation prohibition laws in urban areas, and their application to non-
agricultural land in rural areas.
TRANSLATION OF POLICY INTO ACTION BY THE POST COLONIAL STATE

THROUGH LEGISLATIVE, FINANCIAL AND ADMINISTRATIVE REFORMS
Land Alienation Prohibition laws Post the adoption ofthe Constitution,the first major legislative
reform introduced sought to safeguard tribal rights to land. Noting the centrality of land to tribal
identity, economy, and culture, and the need to protect the Scheduled Tribes from exploitation
and displacement, during the 1950s-1970s, Parliament and legislatures of all states with Fifth and
Sixth Schedule areas enacted legislation to safeguard tribal rights to land by prohibiting transfer
of land in the Scheduled Areas from tribals to non tribals. States like Sikkim, West Bengal, and
Uttar Pradesh that do not have any designated scheduled areas under the Fifth and Sixth
Schedules also enacted legislation prohibiting transfer of land belonging to tribals, to non tribals.
These protective laws for the land rights of tribals were however arrayed against numerous
displacing laws, including the land acquisition, forests, and mining laws. A CPR Land Rights
Initiative study has shown that there are 102 land acquisition laws in India, including 15 central
and 87 state laws. Moreover, the effects of the land alienation prohibition laws are also countered
by the effect of land reform laws, which protect the rights of non tribals who have settled in
tribal areas for a certain period of time. Since the non-tribal population is more sophisticated than
the tribal population, when laws protect land rights of both, the non-tribal population is able to
use laws more effectively to displace the tribal population.
The Tribal Sub Plan
Pursuant to the recommendations of the Dhebar Commission, within India’s planned economy,
the second major institutional reform was the creation of a targeted plan of financial allocations
and expenditures for the benefit of the tribals. This took shape in the form of introduction of a
tribal sub plan in the Fifth Five Year Plan (FYP) (1974) which provided a platform for targeted
funding to be channelised appropriately for tribal welfare all the way to the village level.
Continued in successive Five Year Plans since the Fifth FYP, the tribal sub plan sought to

supplement the financial allocations made by state governments with respect to tribals and
provide an additional targeted grant for the overall development of the tribal communities. Tribal
sub plans exist for twenty three out of twenty five states in India that have tribal communities,
the exceptions being the states of Meghalaya and Mizoram that are tribal majority states. There
are no tribal sub plans for the union territories that have tribal populations.
The Tribal Sub Plan consists of allocations from the following four sources:
(a) central TSP;
(b) state TSP;
(c) Ministry of Tribal Affairs and
(d) institutional finance.
Whereas the central TSPs of different ministries in coordination with the state governments
support the major chunk of infrastructural development in the tribal areas, state governments
fund the provision of basic amenities to tribal people through the state TSPs. The Ministry of
Tribal Affairs also provides additional resources to close gaps in funding for both infrastructural
development and provision of basic amenities to the tribal people. These funds are provided
through the ‘Special Central Assistance’ to Tribal Sub-Plan (SCA to TSP) apart from Grants- in-
Aid under Article 275(1) of the Constitution for the overall development of tribal people in the
country. Institutional finance includes funds received under a number of different heads,
including, Corporate Social Responsibility funds, and funds from various marketing and
financial institutions set up by the state governments to provide institutional support for
marketing and development of tribal products.

It is also interesting to note from Figure 4 that the relative proportion of Central TSP has come
down from 26.3% to 14.9% during this five year period, while that of the state TSP has gone up
from 71.6% to 81.4%. This trend indicates that tribal development is increasingly dependent on
state funds as opposed to central funds.
From the above review, it is abundantly clear that even though the Constitution envisages a
centralised framework for the administration of tribal areas under the aegis of the President and
the Governors of all the states, the responsibility of financing the costs of progressive changes

for the tribals increasingly vests with the state governments. Consequently, the fragmented
nature of the constitutional protections for the STs is also replicated in the administrative and
financial apparatuses designed to effectuate these protections, thereby reducing the efficacy of
provisions designed to safeguard the rights of the tribal peoples.
Moreover, the allocations made under the TSP fall far short of the recommended allocations
under the central and state TSP as per the Planning Commission’s Guidelines, 2006, that were
further revised in 2014. The total shortfall in the state TSP allocations made to 23 states as
compared to the recommended allocations under the Planning Commission’s Guidelines over a
five year period (from 2011-12 to 2015-16) was INR 52,216 crore. Of this amount,
approximately 87% of the shortfall amounting to INR 45,180 crore was contributed by the Fifth
Schedule area states and the states of Assam and Tripura. See Figure 5.

Figure 6 shows that the total shortfall for the central TSP for the four-year period from 2013-14
to 2016-17 was INR 16,593 crore. Adding up the shortfalls from Figures 5 and 6, it is clear that
both the central and state governments are failing to comply with the Planning Commission’s
Guidelines in discharging their responsibility for tribal welfare.
Our key informant interviews with officials at the National Commission on Scheduled Tribes
and various state Tribal Welfare Departments have indicated that misguided expenditure of
allocated funds in these areas compounds the problem of shortfall of funds intended for tribal
development. This occurs mostly because of a top down approach in the design of tribal welfare
programmes, which is usually done without adequate consultation with the tribal communities
and their representatives, as to their aspirations and requirements.

The Panchayat Extension to Scheduled Areas Act, 1996 Parliament enacted PESA in 1996 with a
view to devolve greater autonomy and local self government to tribal communities in the Fifth
Scheduled Areas. This law was enacted in response to a long standing demand by tribal
communities and activists in the Fifth Schedule areas that they be granted the same autonomy
and self government enjoyed by the Sixth Schedule areas. The PESA attempts to vest statutory
powers with the Gram Sabha specifically in areas relating to development planning, management
of natural resources, and adjudication of disputes in accordance with prevalent traditions and
customs. In pursuance of PESA, state legislatures are required to ensure that the Panchayats at
the appropriate level and/or the Gram Sabha are endowed specifically with powers for
management of land resources among other things. However, PESA was intended only as an
umbrella framework under which respective state panchayat Acts have to be amended to
incorporate the letter and spirit of PESA. A number of states which have adapted PESA under
the statutory time line of one year as mandated by the Act have left a lot of operational issues
subject to rule making powers and state prescriptions.
Moreover, the PESA only applies to Scheduled areas that are classified as rural areas. Our data
shows that 1.05% of the total geographical area under the fifth Schedule areas, equivalent to
3873 square kilometres, falls within urban areas, to which PESA is not applicable. Of the 229
administrative units corresponding to district, taluk and block, that have been classified as
Scheduled areas, 95 administrative units also include urban areas. Thus, the people living in
urban areas in approximately 41% of the administrative units under the Scheduled areas do not
enjoy the benefits of PESA.
The Ministry of Tribal Welfare
For more than fifty years since independence, the Central Home Ministry was charged with the
responsibility of tribal welfare. Though some states had independent tribal welfare departments,
a separate Ministry of Tribal Affairs was not created at the level of the central government until
1999. This inspite of the fact that the debates in the Constituent Assembly had highlighted the
role of the central government in the protection and uplift of the tribal communities. Once
constituted, the MoTA sought to assume responsibility of the NCST, even though the latter was

envisaged to be an independent body which would advise the government on matters of tribal
policy. Since its creation, the MoTA has been the nodal agency for the creation of central tribal
policy in consultation with the NCST and the national commissions created for tribal welfare,
including the Bhuria Committee, 2002 and Xaxa Committee, 2014.
The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006
In 2006, Parliament enacted the Forest Rights Act to reverse more than a century of injustice
against forest dwelling communities, particularly the STs since the enactment of the draconian
forest laws of the nineteenth century. Though expected to undo injustice to tribals, the
independent Indian state’s National Forest policy, 1952, further diluted the “rights and
privileges” of STs in forest areas to “rights and concessions”. It stated that tribal communities
should not be allowed the use of forest produce at the “cost of national interest.” When
Parliament enacted the Forest Conservation Act, 1980, the Forest Department was further
empowered to deprive tribals of their rights to collect minor forest produce and to cultivate forest
lands.
It was not until the National Forest Policy, 1988, that a reversal of this position was attempted.
Noting the uniquely symbiotic relationship between tribal people and forest land, the NFP,
1988,stressed that the primary task of all agencies responsible for forest management, should be
to associate the tribal people closely with the protection, regeneration and development of
forests, as well as to provide gainful employment to people living in and around the forest.
Pursuant to this policy, in the 1990s, the Ministry of Environment and Forests introduced
guidelines for the “Joint Forest Management” policy introduced in several states, which
envisaged joint management of forests between tribal communities and Forest Department
officials.
The efforts to secure tribal people’s forest rights culminated in the enactment by Parliament of
the historic Forest Rights Act, 2006. This Act granted statutory recognition to individual and
community rights of Scheduled Tribes, and other traditional forest dwelling communities, and
gave them a participatory voice in forest management and conservation. The Act recognized

rights of tribal communities to cultivate land in the forests, and also rights to use grazing lands,
collect minor forest produce, and to protect and conserve forests.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and
Resettlement Act, 2013
The power of “eminent domain”, inherent in the exercise of the state’s sovereignty allows the
state to compulsorily acquire property belonging to private persons for a public purpose and
upon payment of just compensation, following procedure established by law. Starting with the
Bengal Regulation I of 1824 and culminating in the Land Acquisition Act, 1894, the British
experimented with a variety of procedures for acquisition of land. The Land Acquisition Act,
1894, originally enacted for the territory of British India was, following independence, extended
to cover the entire territory of India except for the state of Jammu and Kashmir.
This Act remained in force for a period of 119 years although it was amended frequently during
this time. The last amendment to this law was made in 1984. The Land Acquisition Act, 1894,
applied originally only to British India. Like other colonial laws, the application of the Land
Acquisition Act, 1894 was grandfathered by Article 13(2) of the Constitution insofar as it was
not in conflict with the fundamental rights of the people.
Moreover, apart from the laws that dealt directly with land acquisition, a number of other
colonial and post-colonial central and state laws contained provisions for acquisition of land. A
study by the CPR Land Rights Initiative of all Supreme Court disputes on land acquisition has
estimated that there are at least 15 central and 87 state laws of land acquisition.
As mentioned previously, the special constitutional provisions safeguarding tribal rights to land
in the Fifth Schedule areas do not recognise the sovereignty of the tribals with respect to these
areas. Although in the debates on the Sixth Schedule, Dr. Ambedkar, the President of the
Drafting Committee on the Constitution acknowledged that the political and administrative
autonomy guaranteed for the tribal areas under the Sixth Schedule was ‘somewhat analogous to
the position of the Red Indians in the United States as against the white emigrants’80, thereby

signifying some sort of limited sovereignty over the land as “peoples”, the text of the
Constitution makes these areas expressly subject to the land acquisition laws enacted by the
federal and state legislatures of the respective states. Therefore, despite some political and
administrative autonomy for the Sixth Schedule areas, the Indian state retains its eminent domain
powers over these areas. Along with the forests and mining laws, the land acquisition laws have
been the biggest source of state sanctioned displacement of the tribal peoples.
In 2013, the 1894 Act was repealed and replaced by the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“RFCTLARR
Act”). The RFCTLARR Act, 2013 recognises the special situation of the Scheduled Tribes.
Section 42 of the Act mandates that “as far as possible”, no government shall acquire land in the
Scheduled areas. Where such acquisition is done, it must be done only as a “demonstrable last
resort”. In case of acquisition or alienation of any land in the Scheduled Areas, the RFCTLARR
Act mandates that prior consent of the concerned Gram Sabha or the Panchayats or the
autonomous District Councils, as the case may be, must be obtained, in all cases of land
acquisition in such areas, including acquisitions in cases of urgency. The Act further stipulates
that in case of a project involving land acquisition on behalf of a Requiring Body which involves
involuntary displacement of the Scheduled Castes or the Scheduled Tribes families, a
Development Plan shall be prepared, in such form as may be prescribed, laying down the details
of procedure for settling land rights due, but not settled and restoring titles of the Scheduled
Tribes as part of the land acquisition.85 Finally, the Act stipulates that the affected families of
the Scheduled Tribes shall be resettled preferably in the same Scheduled Area in a compact
block so that they can retain their ethnic, linguistic, and cultural identity and these areas would
receive land free of cost from the government for community and social gatherings.
However, the RFCTLARR Act has from its inception been subject to intense political and legal
contestation and has now been amended by several states, including those of Tamil Nadu87,
Telangana88, Gujarat89, Rajasthan90, Maharashtra91 and Jharkhand, to get rid of the
requirements of consent and social impact assessment of proposed projects for large number of
projects. Even as the Act came into force on January 1, 2014, tribal village lands were being
acquired for the Polavaram Dam project in the state of Andhra Pradesh93, without any regard to

the text or spirit of the RFCTLARR Act. Therefore, it is not clear to what extent the RFCTLARR
Act will be able to safeguard the rights of the tribal people.
Mining laws
Like its claim to forest resources under the forests laws, the Indian state has claimed succession
to the British state’s claim to all the mineral resources under the subsoil. Within India’s federal
constitutional structure, the power to make laws with respect to “regulation of mines and
oilfields and mineral development” vests with the federal government.94 But the state
governments are empowered to frame rules and regulations in respect of mining activities and
mineral development, subject to the provisions of List I. This was in accordance with the
structure of the colonial government under the Government of India Acts, 1919, and 1935.
Following the Mineral Policy Conference, 1947, Parliament enacted the Mines and Minerals
(Development and Regulation) Act, 1957, to regulate the mining sector in India, which specifies
requirements for obtaining and granting mining leases for mining operations. Under the MMDR
Act, Mineral Concession Rules, 1960, and the Mineral Concession and Development Rules,
1988, outline the relevant procedures and conditions for obtaining a Prospecting License or
Mining Lease.
Read in conjunction with the land acquisition laws, the mining laws applicable both to Fifth and
Sixth Schedule areas, empowered the state to displace the Scheduled Tribes from their lands. In
1997, following the historic Samata judgment, the NGO Samata, challenged the grant of mining
leases to non-tribal people in the Scheduled Areas of the state of Andhra Pradesh as being
violative of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, of 1959 and Forest
(Conservation) Act of 1980. The Supreme Court held these leases to be null and void, declaring
that “government lands, tribal lands, and forestlands in the scheduled Areas cannot be leased out
to non-tribals or to private companies for mining or industrial operations”. The Court advocated
that mining activity should be taken up only by the State Mineral Development Corporation or a
tribal co-operative if they are in compliance with the Forest Conservation Act and the
Environment Protection Act. It also directed that at least 20% of the net profits should be set
aside as a permanent fund for basic amenities like health, education and roads. In the absence of

total prohibition, the court laid down certain duties and obligations to the lessee, as part of the
project expenditure. The court also held that, 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.”
In 2015, the MMDR Act was significantly amended by the Mines and Minerals (Development
and Regulation) Amendment Act, 2015, which stipulated certain rules and conditions for
issuance of mining and prospecting licenses. In line with the recommendations of the Supreme
Court in the Samata judgment, this amendment also mandated the creation of District Mineral
Foundations (“DMFs”) in all districts affected by mining operations. By a notification dated 16
September 2015, the central government directed states to set up DMFs. As of 10 October 2016,
DMFs have been set up in 263 districts across 12 mineral rich states and an amount of Rs. 3589
crores has been collected. It is however not clear how the money collected by the DMFs will be
spent for the beneficiaries, and who these beneficiaries are.
EVALUATING THE CONSTITUTIONAL, LEGAL, FINANCIAL AND ADMINISTRATIVE

MEASURES FOR PROTECTION OF RIGHTS OF STs UNDER THE “DEVELOPMENT
THROUGH INTEGRATION” NARRATIVE
The previous section delineated the various constitutional, legal, financial, and administrative
measures taken by the independent Indian state for the welfare of the STs in order to reverse the
centuries of injustice against these communities and for their protection and uplift pursuant
primarily to the “development through integration”, and secondarily to the “identity based
isolation” narratives.
Geographical Area within the Scheduled Areas and Percentage of tribal population living in the
Scheduled areas
The Ministry of Tribal Affairs (“MoTA”) or any other department of the Government of India
did not have publicly available up to date data on the extent of geographical area within the
Scheduled Areas or the percentage of tribal population living within the Scheduled areas. The

Annual Report of the MoTA has a state wise list of the Scheduled areas, as provided in the
Scheduled Areas (Part A and Part B States) Orders, and modified subsequently by other
presidential orders. But MoTA does not provide an updated map of the Scheduled Area districts

.
Based on analysis of the PCA data, we conclude that the percentage of Scheduled area vis-à-vis
total geographical area in the country is approximately 13%. Of this, 11.3% falls in Fifth
Schedule area while 1.7% is Sixth Schedule area. Based on this, we calculate the state wise

distribution of the Scheduled Areas. Map 4 shows the percentage of scheduled area as percentage
of the total geographical area of each of the fourteen states that have demarcated scheduled areas.
Other than the Shillong Area, the entire state of Meghalaya is designated as having Scheduled
areas under the Sixth Schedule. The states of Chhattisgarh, Jharkhand and Tripura have more
than a majority of the land area as Scheduled area under the Fifth and Sixth Schedules,
respectively. On the other end of the spectrum, less than 10% of the area in the states of
Rajasthan, Telangana and Andhra Pradesh is designated as Scheduled area. Rajasthan has the
least amount of scheduled area amongst the 14 states with designated scheduled areas.

Further, 6.3% of India’s population is residing in the Scheduled Areas. This includes both the
Scheduled Tribe and non-Scheduled Tribe population. It is to be noted that this estimate doesn’t
include information on Andhra Pradesh and Tripura as we could not perfectly map the Scheduled
Area boundaries of these states with the latest administrative codes. 39% of the total ST
population of India is residing in the Scheduled Areas. A further breakup of these figures for
Fifth and Sixth Schedule Areas is given below in Figure9. Putting these estimates together, we
can infer that on average, 53% of population in Fifth Schedule Area is ST while approximately

60% of the population in the Sixth Schedule Areas is ST. However, it should be noted that these
estimates are slight overestimates for reasons explained earlier in this section. So, under this
caveat it may be possible that in Fifth Schedule Areas on average ST population residing within
them is in minority as this is true for some of the states like Maharashtra and Telangana.
The Constituent Assembly demarcated Scheduled areas as tribal majority areas in India. But, 75
out of 205 administrative regions (districts or sub-districts), that is 37% of all administrative
regions are ST minority areas. This confirms the widespread belief that the Scheduled Tribes
have been either voluntarily or involuntarily displaced from the tribal majority Scheduled Areas.
Overlap of Forested areas with Scheduled Areas
Given the nature of the special relationship between tribals and forests, it must be known the
extent of overlap between forested areas and Scheduled area district wise total forest cover for all
States in India from the Forest Survey of India, 2013. However, we note at the outset that the
figure for the percentage of forest cover lying in Scheduled Area districts, although the best
possible estimate, is an overestimation. This is because forest cover has been calculated at a
district level, not a sub-district/taluk level or villages in terms of which Scheduled Areas are
demarcated. This was because the lowest level at which forest cover data is available, is the
district level.
Based on this analysis, the total forest cover in India is 697,898 sq. km, which is 21.2% of
India’s total geographical area. Map 5 represents the state wise percentage of forest cover in
India. By mapping district wise forest cover to Scheduled Area districts it is now estimated that
38% of the Forest Cover in India lies in the Scheduled Areas districts (123 districts of 640),
which means that the intensity of forest cover is slightly more than two and a half times in
Scheduled Areas districts as compared to other districts. See Figure 10

It was found that on average almost 30% of the Fifth Schedule Area districts and 76% of the
Sixth Schedule area districts are under forest cover. From this we can conclude that the
Scheduled Areas have significantly more forest cover compared to the rest of the country. Also,
within the Scheduled Areas, Sixth Schedule Areas have more forest cover than the Fifth
Schedule Areas. Given the special nature of the STs to forestland, it is unsurprising that the
concentration of forest cover in the Scheduled Areas is just over two and half times than that
compared to the rest of the country. However, since there were no existing estimates of the
distribution of forest cover in the Scheduled areas, our study goes a long way in shedding light
on the geography and topography of the Scheduled areas.

Overlap of Dams in the Scheduled Areas
Dams are widely believed to be one of the biggest causes of displacement of the Scheduled
Tribes. We must attempt to establish the veracity of this claim by identifying the distribution of
dams in the Scheduled Areas vis-à-vis the distribution of such dams in non-Scheduled areas. In
order to create the dataset on the spatial and temporal distribution of dams in India, we relied on
two sources, 1) Water Resource Information Systems (WRIS) and; 2) National Register for
Large Dams (NRLD). Map 6 shows the numeric distribution of dams across various states in
India. This includes both large dams and dams of national importance. Figures 11 and 12 show
the distribution of dams of national importance and large dams in the Fifth and Sixth Schedule
area districts. Around 25% and 37% of Dams of National Importance and Large Dams,
respectively, lie within Scheduled Area districts (123 districts out of 640), respectively,
accounting for a total of 1437 dams.

From the above analysis, we can conclude that 38% of all dams lie within the Scheduled areas,
which implies that the intensity of dams is slightly over two and half times in the Scheduled
Areas.

On investigating the state wise distribution of 1437 dams that are in the Scheduled Areas, it was
found that two thirds of all dams within Scheduled area districts are in the states of Maharashtra
(42.4%) and Madhya Pradesh (25%). Refer to Figure 8.
Both the states of Meghalaya and Tripura have all their dams in the Scheduled Areas but these
are outliers, because almost all the territory of the state of Meghalaya falls within Scheduled
Area, while Tripura just accounted for one dam in our dataset. Among the Fifth Schedule Area
states, Chhattisgarh (96.4%), Jharkhand (67.1%), Odisha (64.8%) and Madhya Pradesh (51.8%)
have a majority of their dams in the Scheduled Area districts. Gujarat (21.7%) has comparatively
the lowest proportion of dams in the Scheduled Area districts. See Figure 14.

Intensity of Mining in Scheduled Areas
Along with dams, mining is widely regarded as the biggest cause of displacement of tribals.
The MMDR Act 2015, classifies the mineral wealth of India into “major” and “minor” minerals.
The Act defines “minor minerals” as “building stones, gravel, ordinary clay, and ordinary sand,
other than sand used for prescribed purposes, and any other mineral which the Central
Government may, by notification in the Official Gazette, declare to be a minor mineral”. The Act
makes clear that all other minerals not regarded as minor will be considered as major.
Based on the data collected from the Annual Report of Ministry of Mines 2016-17, for the year
2015-2016, the total number of major mineral reporting mines were 2100. Out of this, 1463
mines i.e. roughly 70% of mines were in Fifth Schedule Area states. See Figure 15. This estimate
excludes the share of states like Himachal Pradesh, Meghalaya, Mizoram and Tripura since
information for these states was not available.
From the information contained in the Annual Report, we deciphered that the total value of
mineral production for the year 2015-2016 was INR 276,638 crores. The Report specified the
value of “minor minerals” produced during this period, but did not contain information on the

value of “major minerals”. This was computed by deducting the figures for value of “minor
minerals” from the “total value of mineral production” mentioned in the Report.
Our analysis of these mineral production values reveals almost 65% of mineral production is
concentrated in the states that have Fifth Schedule Areas. See Figure 16. Royalty accruals from
these states are as high as 88.5% of the total royalty accruals in India. See Figure 17. Consistent
disaggregated district and sub-district mining data for Sixth Schedule area states was not
available. Moreover, it must be noted, that state wise comparative mining data was available
only at the state level, but as described earlier, except for the state of Meghalaya, Scheduled
areas in the remaining thirteen states are at the level of districts or sub districts. Therefore, any
attempt to correlate the mining data with the Scheduled area districts and sub districts must
necessarily be somewhat of an overestimation. However, such an overestimation does not affect
the overall trend of the data.

From the above analysis, it is clear that the Scheduled area states are bearing the costs of most of
the mining activity in the country and contributing to almost 90% of the royalty accruals to the

central and state governments. Though we do not have district level mining data, a Report by the
Centre on Science and Environment based on information obtained through filing RTI requests
with central and state governments, has identified 50 major mining districts in India.110 By
comparing these districts with the district wise Scheduled area list in our database, we can
conclude that 27 out of the 50 major mining districts in India are Scheduled area districts. That
the STs remain the most vulnerable and impoverished people in the country shows that they are
not beneficiaries of the mineral wealth being generated from areas within which they have
specialised constitutional protections. Clearly, the legal and administrative frameworks relating
to mining in India, have facilitated the displacement and impoverishment of the STs and form a
contrary legal framework to the protective provisions contained in the Constitution.
Evaluating the governors’ reports
According to Article 244(1) read with the Fifth Schedule, the areas notified by the President
under the Fifth Schedule are to be administered by the Governor of the State, in consultation
with the Tribes Advisory Councils to be appointed by the Governor. The Governor has powers to
regulate the application of laws of the State and the Acts of Parliament to the Scheduled Areas
and to make regulations for “good governance” of these areas. Clearly, the Constitution vests
substantial powers with the Governor for the administration of tribal areas in accordance with the
needs of tribal people.
Various commissions including the Dhebar Commission have noted that the Tribes Advisory
Councils in most states are defunct and that there is a need to strengthen their functioning. The
role of the Governor in these states has also received similar criticism and has remained largely
opaque. At the CPR Land Rights Initiative, it was decided to investigate how Governors of states
with Fifth Schedule areas have in the past discharged their constitutional responsibilities with
respect to the tribal people through a study of the yearly reports that the Governors are mandated
to send to the President. However, even though these reports are such important public
documents, it was found that they were not available in the public domain.

See, Table for list of Governor’s Reports marked as received by MoTA and those received.
Through key informant interviews with MoTA officials, it is understood that the Governor’s
Reports once submitted to the President are deliberated upon by MoTA for years and shuttle
between the state governments and MOTA for clarification and follow ups for some time and
only once a report has been completely analysed is it made available in public domain. Some
informants have also highlighted the fact that many archival documents have not been properly
handled during their transfer from the Ministry of Social Justice and Empowerment to MoTA
after the creation of the latter in 1999, and the inability of MoTA to make all the reports
available is possibly because most Governor’s reports are missing from the government’s
archives.
Based on a perusal of the limited number of Governors’ Reports that we could access, it was
found that these reports mostly contain outlines of financial outlays and expenditures, and
various institutional and administrative schemes and measures for the uplift of the STs in
accordance with the “development through integration” narrative. They do not highlight the
specialised protections for STs, in particular their land rights or the role and functioning of the
Tribes Advisory Councils. Nor do they speak about extensive displacement of tribal peoples
pursuant to eminent domain powers of the state, as enforced through the land acquisition, forests
and mining laws. In short, even though the Governor is constitutionally mandated to have the
most extensive charge for tribal welfare of people in the Fifth Schedule areas, the Governors’
reports do not adequately capture the voices of the tribal people in seeking development not
necessarily through integration, but “according to their own genius.
CONCLUSION
India was a pioneer in recognising special protections for her tribal or indigenous peoples in the
Constitution, recognising their cultural, social, and economic identity as distinctive from that of
the mainstream Indian society and that they needed some protection from exploitation by the
mainstream. However, inspite of these special provisions, the Scheduled Tribes continue to be
the most vulnerable and impoverished section of the Indian population. Through a review of the
historical and contemporary policy frameworks that have defined both the “Scheduled Tribes”
and the “Scheduled Areas”, and primary archival data documenting the causes of the
displacement of the tribes through contradictory policy discourses, displacing legislative and
administrative frameworks, and the displacing and alienating processes of economic
development initiated and facilitated by the colonial and independent Indian state, we have
attempted to shed some light on why the STs continue to be the most vulnerable and
impoverished groups in the country.
We conclude that despite the centrality of land to the identity, economy, and culture of the
Scheduled Tribes, the protections for the Scheduled Tribes and Scheduled Areas in the
Constitution were fragmented and somewhat contradictory in conception and execution from the
time of their inclusion in the Constitution. The creation of these fragmented protections was in
turn a product of two factors. First, it arose partly from the reality of the tribal situation, in that
even at the time of drafting of the Constitution, many tribal communities were no longer located
within the geographically isolated scheduled areas, while many non-tribal communities were
resident there, some for several generations. In the interest of doing justice to all communities,
the Constitution makers chose to create safeguards both for the tribal people resident in the
Scheduled areas and those that were residing outside the Scheduled Areas. Second, it arose from

the inherent contradiction in creating geographically protected areas for the Scheduled Tribes,
while at the same time imposing no limitations on the movement of tribals outside those areas,
and no restrictions on the movement of non tribals to those areas. Indeed, given that the
Constitution guaranteed to all citizens the fundamental right to move freely throughout the
territory of India, it is not clear how such a limitation could have been imposed by law.
Thus, even though the Indian Constitution was progressive for its time, both generally in its
recognition of rights for all its citizens, but also in terms of its recognition of protections for
minority rights, including those of the Scheduled Tribes, the incoherence and contradictory
nature of the provisions diluted their effectiveness in safeguarding the rights of the STs.
The Report also finds a fundamental contradiction between two narratives that have
characterised the policies of the British colonial state and the independent Indian state. The first
narrative, that we call the “identity based isolation” narrative, identifies the tribals as a
“distinctive group outside the mainstream Hindu society both in terms of their cultural traits and
geographical isolation”, who are keen to preserve their distinctiveness and their isolation. The
second narrative called the “development through integration” narrative identifies the tribal way
of life, as backward compared to the mainstream Indian population and seeks to improve their
economic and social indicators to “integrate” or “assimilate” them within the mainstream
population. The Report notes that while both the “identity based isolation” and “development
through integration” narratives characterised the drafting of the constitutional protections for the
STs, post-independence policy making was guided primarily by the latter. However, the
Scheduled Tribes have regarded the “development through integration” narrative as both
paternalistic and patronising and alleged that this narrative does not seem to capture the
aspirations of the tribal people to “develop according to their own genius”. In order to have a
coherent strategy for the uplift and protection of the tribal people, we therefore need clarity on
how the “identity based isolation” and “development through integration” narratives can be
integrated in policy discourse and lawmaking, so as to facilitate the design of laws and policies
that can safeguard the rights of tribals and help them develop according to their genius. Needless
to state, the processes of law making must happen in consultation with the tribal communities
and not be a paternalistic imposition on them by the state, where they are not only a minority, but
a very special minority at that.

A contrary legal framework comprising of colonial and postcolonial forest, mining, and land
acquisition laws has further diluted the constitutional protections for the STs. The land alienation
prohibition laws only prohibit the transfer of tribal land to non-tribals. Nothing prevents the state
from acquiring land in the Scheduled areas for its own purposes in the exercise of its power of
eminent domain or assertion of its rights over forestland. The Samata judgment, which has been
observed more in the breach, prohibited the grant of mining leases in the Scheduled areas by
private companies, but not by state mining corporations. Based on the intensity of dams and
mining in the Scheduled areas that we have calculated in our study, we can easily infer that land
acquired in the Scheduled areas for the purposes of construction of dams and mining have
displaced and impoverished millions of Scheduled Tribes.
Our research has revealed that while 90% of all mineral wealth generated in India comes from
the Scheduled area states, this wealth is not channelised appropriately for the benefit of the tribal
peoples. This is especially worrying that there are huge shortfalls in expenditure in the special
financial allocations made for the welfare of the Scheduled Tribes. Our research has also
revealed huge gaps in the study of the Scheduled areas and Scheduled Tribes. By establishing
that 13% of all geographical area of India is in the Scheduled areas, and mapping these areas
according to the latest Census data, we have created scope for further explorations of correlations
with respect to representation of STs, and their impoverishment and landlessness. This is work
that we and others can do in the future.
All of the above is not to say that the struggle for safeguarding the rights of tribal peoples has
been a failure. The decriminalization of criminal tribes; the special constitutional provisions for
representation, affirmative action, and recognising the land rights of tribals in the Scheduled
areas; the creation of the tribal sub plan for special financial allocations for tribal population; the
creation of the National Commission for Scheduled Tribes, and the Ministry of Tribal Affairs;
the enactment of the Panchayat Extension to Scheduled Areas Act, 1996 and the Forest Rights
Act, and the creation of the District Mineral Foundation under the MMDR Act, 2015; are

important constitutional, legislative and administrative steps that have the potential of going a
long way to redress the historic injustices against the tribal communities in India. But only the
effective and coordinated functioning of all these mechanisms can truly safeguard the rights of
tribals in India. And ultimately they may not be enough to protect the tribal communities’
distinct way of life against the hegemonic mainstream, which seeks to “develop” them through
“integration”.
2.4 Unorganized Rural Labour and the Legal Response
Major Causes of Unorganized Labourers :
The following are the major cause of unorganized labourers.
1. Illiteracy:
Domestics are generally illiterate in their native languages and very few are literate in English,
they have no formal education, therefore most of the domestic workers would not be able to read
a contract or sign their own names. There is also little awareness of available rights. Most of the
tribal who are unorganized labourers are living in the country side where no basic educational
facilities are available to them.
2. Rural Poverty:
Unorganized labour is rooted in poverty. In India near about 80% of the total population still
lives in the rural area and nearly 50%. Population subsists below poverty line. Unorganized
labourers have to work against their will or wish because they have to do it for their own survival
and that of their family. In this way they are able to reduce to a great extent the poverty in which
they live and hence satisfy some of the basic needs. Poverty is a complex phenomenon as a host
of factors such as age, sex, education, employment characteristics, wage rate etc. as its causes.

We know that the less educated, the young, the old, household headed by women. Unemployed
and under employers fully employed in low jobs etc. have high poverty rate.
3. Indebtedness :
The unorganized labourers are facing the problems of indebtedness which is more or less a
universal one, which has reached up to alarming situation in developing countries. In the ancient
society the persons belonging to the poor family workers in India were born in debt and died in
debt. This fact is still true, particularly in agricultural sector, despite several remedial measures
initiated by the Government of India.
4. Adult Unemployment :
In our country, unorganized labourers are facing the problem of adult unemployment. Hence, the
children have to come to the rescue of the labour & household whenever the family is deprived
of adult earning due to adult unemployment or inadequate income due to underemployment or
intermittent income due to seasonal employment of adult earners.
5. Low Adult Wages :
Employers are openly violating the provisions of the minimum wages Act, 1948 especially in the
unorganized sector and make payment of wages much below the minimum wage. In order to
preserve, employment the workers have absolutely no opinion but to accept the low wages. In
these circumstances children also can not escape themselves from the clutches of the employers
but join employment to supplement the family income.
6. Industrialization and Urbanization :

India is among the first ten in terms of industrialization but among the poorest in terms of per
capital income. Expensive urban living and low wages compelled the children to take up
industrial employment in order to support meager family income. Due to those compelled
circumstances they have to work even for less than minimum wages so that they may avoid the
situation of starvation in their family.
7. Unsuitable System of Education :
Absence of any provisions for compulsory education is another important cause of unorganized
labour school facilities are also inadequate in our country. In most of the cases, children finding
non availability of school going facilities at initial stage, therefore they want to seek some job as
an alternative. The orthodox poor parents feel that educating the child will not help to feed them
whereas a working child bring money into the home to taken care of certain basic needs.
Constitutional Safeguards for the welfare of unorganized labourers :
We are living in a democratic society in which all are equal before the eyes of law whether he is
rich or poor. Hence every civilized and law abiding person wants to live with honour and dignity
in the society. He lives in for this purpose. It is but necessary that one should be treated like a
human being by his fellow being. Efforts were made from time to time by way of statutory
provisions and otherwise to make a person to lead a decent life. Our constitution of India protects
the unorganized labourers in one way or the other so it is pertinent to give some relevant
provisions relating to unorganized labourers.
Various freedoms have been provided by our constitution to all irrespective of their status.
Therefore the unorganized labourers are also entitled to the following freedoms.
• To freedom of speech and expression.
• To assemble peacefully and without arms.

• To form association or unions.
• To move freely through the territory of India.
• To reside and settled in any part of the territory of India.
• To acquire, hold and dispose of property and
• To practice any profession or to carry on any occupation, trade or business.
Our constitution safeguards very valuable right to life and personal liberty of the citizens of India
including unorganized labourers. It says that no person shall be deprived of his life or personal
liberty except according to procedure established by law. The idea of welfare state envisaged by
our constitution can only be achieved if the states endeavor to implement them with a high sense
of moral duty. The constitution of India imposes duty upon the state to secure a social order for
the promotion of welfare of the people.
1. The state shall strive to promote the welfare of the people by securing and proceeding as
effectively as it may a social order in which justice, social, economic and political shall in for,
All the institutions of the national life.
2. The state shall in particular strive to minimize the inequalities in income and endeavor to
eliminate in equalities in status, politics and opportunities not only amongst individuals but also
amongst groups of people residing in different areas or engaged in different vocation.
• Protection of unorganized labour under Beedi and cigar workers (conditions of

employment) Act, 1966.
• Provisions of the contract labour (Regulation and Abolition) Act, 1970. Vis-a-vis
unorganized labour.
• Socio-legal protection to unorganized labourers provided under the inter state migrant
workmen (Regulation of Employment and condition of service) Act 1979.

• Safeguard provided of the work mens compensation Act 1923 to unorganized labourers.
• The employees state insurance act 1948 Qua unorganized labourers.
• Protective provisions of equal remuneration act 1976 as regards unorganized labourers.
• Protective safeguards to unorganized laboures under factory act 1948.
• Provisions under unorganized workers social security Act 2008.
• Provisions under maternity Benefit Act – 1961.
The various social security schemes for unorganized labourers are :
1. Indira Gandhi National Old Age Pension Schemes.
2. National Family Benefit Scheme.
3. Janani Suraksha Yojana.
4. Handloom weavers compressive welfare scheme.
5. Handicraft artesian comprehensive welfare scheme.
6. Pension to master craft persons.
7. National Scheme for welfare of fishermen and Training and extension.
8. Jansree Bima Yojana.
9. Aam Admi Bima Yojana.
10. Rashtriya Swasthya Bima Yojana.

Protection of unorganized labour under Beedi and cigar workers (condition of employment), Act
1966.
The Act provides following safety and welfare benefits for beedi and cigar workers under the
Act.
i. Clenliness ii. Ventilation iii. Overcrowding iv. Drinking water v. Latrines vi. Washing
Facilities vii. Creches viii. First Aid ix. Canteens x. Working hours xi. Wages for overtime work
xii. Interval for rest xiii. Spread over xiv. Weekly holidays xv. Prohibition of employment of
children xvi. Prohibition of employment of women or young persons during certain hours
xvii. Annual leave with wages xviii. Wages during level period.
Provisions of the contract labour (Regulation and Abolition) Act, 1970. Vis-a-vis unorganized
labour.
The object behind the passing of this Act as to regulate the contract labour and provide certain
protection to them so that they may enjoy their fundamental right guaranteed under the
constitution of India. Therefore the researcher likes to give certain relevant provisions of the Act
which are directly or indirectly protecting the interest of unorganized labourers working in
various forms in our Indian society. According to section 2(b) of the Act under study a workman
shall be deemed to be employed as “Contract Labour” in or in connect with the work of an
establishment when he is hired in or in connection with such work by or through a contractor
with or without the knowledge of the principal employer.4
The appropriate Govt. may, by notification in the Official Gazzette, appoint to contact to whom.
This Act applies shall undertake or execute any work through contract labour except under and
in accordance with a license issued in that behalf by the licensing officer. Subject to the
provisions of the Act, a licensee under sub section (1) of section 12 may contain such conditions
4
Khaparde, S.D.,[2020] Unorganized Labourers: Causes and Constitutional Safeguards, Mukt Shabd Journal,
Volume IX, Issue IV.

including in particular, conditions as to hours of work, fixation of wages and other essential
amenities in respect of contract labour as the appropriate Govt. may deem fit to impose in
accordance with the rules, if any made under section 35 and shall be issued on payment of such
fees and on the deposit of such sum. If any as security for the due performance of the conditions
as may be prescribed.
Welfare Amenities to unorganized labourers under the contract labour Act.
It shall be the duty of every contractor employing contract labour in connection with the work of
an establishment to which this Act applies to provide and maintain.
a) A sufficient supply of wholesome drinking water for the contract labour at convenient
places.
b) A sufficient number of latrines and urinals of the prescribed types so situated as to be

convenient and accessible to the contract labour in the establishment and -
c) Washing facilities.
Socio-legal protection to unorganized labourers provided under the Inter-State migrant work men
(Regulation of Employment and condition of service) Act, 1979.
To safeguard the interest of workmen who migrate from one place to another for employment or
recruited by situated in another state and to protect these workmen from the exploitation
contractors and employers. The inter-state migrant workmen(Regulation of Employment and
condition of service) Act 1979 was enacted.
Migration is a common feature of employment in unorganized industries due to one or the other
reason. This Act has been passed to regulate the working and living condition of those labourers
working in unorganized sector. It applied to every establishment in which five or more inter-state
migrant workmen (whether or not in addition to other workmen) are employed or who were

employed on any day of the proceeding twelve months. It also applied to every contractor who
employees or employed five or more inter state migrant workmen (section 14). Now registration
of the establishment employing inter state migrant workmen in essential (section 16) By
application of the Act the authorities can ensure for basic needs like housing, food protection,
clothing and medical facilities for workmen. By this enactment Govt. tried to eradicate various
problems which usually occur due to migration by regulating employment and condition of
service. The Act also provide for the punishment of the defaulter with imprisonment for a term
which may extent to two year or with fine which may extent to Rs. 2000 or both.
Safeguard provided by the workmen’s compensation Act- 1923 to unorganized labourers.
It is a central act based on british model to provide social assistance in cases of death,
disablements and occupation disease resulting from employment injury. The Act is applicable to
the employment given under schedule II of the Act. The Act imposes unilateral liabilities on the
employer in form of cash payment to the employment injury victims in case of –
a) Temporary total disablement
b) Permanent total disablement
c) Permanent partial disablement
d) Temporary partial disablement
e) Death
f) Occupational diseases
Extent of disablement under the Act has to be assessed in terms of loss or reduction in earning
capacity and in terms of physical capacity. In case of death, case benefit in lump sum is payable
to his dependent as per dates on schedule IV.
The Employee state insurance Act 1948 Qua Unorganized Labourers

The employees state insurance Act is a legislation which aims at bringing about social and
economic justice to the poor labour class of the land. It aims at the labour welfare. But the labour
welfare in an elastic term bringing some what different interpretation in one country from
another according to different social custom, the degree of industrialization and the education
development of the workers.
Benefits Available to the workers under the Act
The purposes of the employees state insurance Act are to provide benefit as details in the Act
particularly in section 46, to the insured persons or their dependents. The Act in the first instance
applies to all factories including factories belonging to the Government other than seasonal
factories. According to section 1(5) . The central Govt. in consultation with employees. State
insurance corporation or the state Govt. with the approval of the central Govt. may with the
approval of the central Govt. may extent different provisions of the act or any of them to any
other establishment or class of establishments industrial, commercial, agricultural or otherwise.
The benefits are provided under section 46. It is in the form of periodical payment to any insured
person. provided his sickness is certified by duly appointed medical practitioner, or any person
having such qualifications and experience as may be specified by regulations of the corporation.
1. Sickness Benefit 2. Maternity Benefit 3. Disable Benefit 4.Benefit Payable upto including day
of death 5. Employer not to reduce wages 6. Employer not to dismiss or punish employee during
period of sickness (section 73)
Protective Provisions of equal Remuneration Act 1976 as regards unorganized laboures
No employer shall pay to any workers employed by him in an establishment or employment

remuneration, whether payable in cash or in kind, at rates less favorable than those at which
remuneration is paid by him to the workers of the opposite sex in such establishment or
employment, for performing the same work or work of a similar nature.

• No employer shall for the purpose of complying with the provisions of sub section (1),
reduce the rate of remuneration of any workers.
• Where in an establishment or employment the rates of remuneration payable before the

commencement of this Act for men and women workers for the same work or work of a similar
nature are different only on the ground of sex, then the higher (in cases where there are only two
rates), or as the case may be, the highest (In cases where) there are more than (two rates) of such
rates shall be the rate at which remuneration shall be payable on and from such commencement
to such men and women workers (section 4).
Protective Safeguards to unorganized labourers under factory Act- 1948.
Factory means any premises including the precincts thereof –
1) Whereon ten or more workers are working or were working on any day of the proceeding
twelve months, and in any part of which a manufacturing process is being carried on with the aid
of power or is ordinarily so carried on, or
2) Whereon twenty or more workers are working or were working on any day of the
proceeding twelve month and in any part of which a manufacturing process is being carried on
without the aid of power or is ordinarily so carried on.
Facilities to be provided to unorganized labourers by the employer.
1) Washing Facilities
2) Facilities for sitting
3) First Aid Appliances
4) Canteens
5) Shelters, Rest rooms and lunch rooms
6) Crèches

Provisions under unorganized workers social security Act- 2008
Unorganized workers social security Act 2008 is an Act of the parliament of India enacted to
provide for the social security and welfare of the unorganized workers (meaning home based
workers, self employed workers or daily wage workers). The Act provides for constitution of
National Social Security Board at the central level which shall recommended formulation of
social security schemes viz life and disability cover, health and maternity benefits, old age
protection and any other benefit as may be determined by the Govt. for unorganized workers, As
a follow up to the implementation of the Act, the national social security board was set up on
18th August 2009.
The social security legislation for predominantly urban and for the organized that currently
available in the country are :
1. Employee’s provident fund and the miscellaneous provisions Act 1952.
2. Employment state insurance Act 1971.
3. Workmen compensation Act 1923.
4. Payment of Gratuity Act 1971.
These legislations specially do not speak of the benefits available to the workers in the
unorganized sector nor do they prohibit coverage of unorganized workers. However they impose
restriction of application to the establishment based on the size of the establishments.
Deployment or engagement of workers in their majority of the working class in the unorganized
sector is not in enjoyment any social security benefit like provident fund, pension, medical or
maternity benefit, disablement benefit and widow pension etc.
Unorganized or informed sector constitutes a privotal part of the Indian economy. More than
90% of work force and about 50% of the national product are accounted for by the informed

economy. The high level of growth of Indian economy during the past two decades is
accompanied by increasing information. There are indications of growing interlinked between
informal and formal economic activities. There has been new dynamism of the informal
economy in terms of output. Employment and earnings. Faster and inclusive growth needs
special attention to informal economy. Sustaining high level of growth are also intertwined with
improving domestic demand of those engage in informal economy and addressing the needs of
the sector in terms of credit, skills, technology, marketing and infrastructure.
Conclusion :
Very few unorganized laboures are somewhat aware about the overall legal awareness acts and
most of them are unaware. So there is a need to make the unorganized labourers fully aware
about the legal acts and their rights, which will be benefited for them by conducting some special
programes and workshops. Unorganized workers to be organized.
Most of the unorganized labourers agreed with the perception that they have better ability to
interact with employer about their rights and welfare facilities. Their skills related to their work
performance at work place have been improved and they have good attitude about their
employer.
2.5 Marginalized Communities and the Law
BEGGARS AND THE EAW
Beggary is an age old problem. In India this problem has assumed a stupendous proportion. In
accordance with the Census of 1971, there were 10,11,619 beggars and vagrants in the country of
which 5,91,501 were male and 4,20,ll8 female. The beggar population in the age group of 60 and
above is about twenty-five per cent who can hardly earn their living and learn any craft. The
problem with this category of beggars can be solved by establishiog permanent liability
institutions so that they may have a shelter for the remaining periods of their lives. There is need
for treatment, training and employment for the remaining seventy-five per cent of beggar
population in accordance with a system of classification. There are different categories of
beggars. They may be broadly divided into four categories:
(i) juvenile;

(ii) able-bodied;
(iii) diseased, old and infirm; and
(iv) physically handicapped and mentally ill.
In the category of able-bodied beggars fall various kinds of beggars like casual beggars, fake
beggars, habitual or professional beggars. The habitual or professional beggars want to evade
work, remain indolent although they are able to eke out a living on their own. They generally
come from rural areas and throng in cities, places of pilgrimage and tourist centres. The lure of
easy life and prospects of employment drive them out of their rural surroundings and throw them
into a plight of uncertainty and helplessness. Thus, this problem is, by and large, of urban nature
and has its roots in the socio-economic conditions prevailing in the country.
The problem of begging by children has, of late, assumed an alarming proportion. The
Government of India has set up a committee in 1968 to go into the problem of kidnapping of
children for purposes of begging. A few case studies in that connection revealed that there were
organised gangs who enticed children to the nefarious act of begging and exploited them for
purposes of soliciting alms from door to door. The committee suggested that stringent measures
should be taken to deal with this problem by amending the relevant section of the Indian Penal
Code. It opined that under section 363A(l) of the Indian Penal Code a minimum sentence of
three years should be provided so as to make the law more effective and deterrent. It went further
to add that the definition of begging under section 363(4)(o) should be amended to make it more
comprehensive in conformity with the anti-beggary legislation of some states. It was also
suggested by the committeee that relevant provisions of the central and state Children Acts as
well as the state anti-beggary legislations might be examined in the context of section 363A of
the Penal Code.5
Begging from a historical perspective:
Since antiquity, human beings have been sympathetic to the sufferings of other human beings. In
the olden days, the number of the needy was very low, and the humanitarian and ethical impulses
of human beings were sufficient to meet the problems of the needy group (Gore et al., 1959).
5
Mohammad Shahid Afroz, Begging for Inclusion: State Response to Beggary in India, International Journal of
Applied Social Science, Volume 4 (11&12), (2017)

Begging is a phenomenon which was hardly present in the primitive societies. It is something
which came into existence in civil society. Even in the early civil societies, there were certain
phenomena which had pre-empted beggary: phenomena such as prostitution, slavery, vassalage,
etc. (Gillin, 1929; Gore et al., 1959). Pande (1986) also holds a similar view. He says that in
ancient India, the members of the social group lived in relative equality. In this kind of a social
system, every member’s disability (biological or social) was treated as a collective affair, and
was provided for by the immediate family of kinship group. Relying on public charity was hardly
present albeit, in a different form, seeking of alms was present in the way the ashram education
system functioned as pupils used to go to households and sustain themselves through collecting
alms.
According to Gillin (1929), begging emerges from social and economic disorganisation. In
Israel, there is no trace of begging until the eighth century BCE when agricultural and pastoral
economy was disturbed by growing commercial activities. Attempts were made for another two-
three centuries to prevent such distress by different means. It is a phenomenon of the later
centuries that beggary can be seen publicly.
In Rome, as the empire started to decay and disorganise, the problem of begging started to grow.
The advent of Christianity gave rise to the belief that one can wash one’s sin by the act of
almsgiving. Monasticism strengthened this belief by propounding that those who took to
asceticism and lived on what people gave them, and those who gave charity were both
benefitting. One because he had taken to asceticism and was living only on what God’s people
had offered him, and the other because he was giving so as holy men could survive. Thus,
Monasticism provided sanctity to begging from both the sides of the giver and the receiver.
Thus, it was man’s deeply rooted desire to free himself from sin that he either took to asceticism
or to give charity (ibid.).
Other religions also teach their followers about being sensitive to the needs and suffering of
other human beings and help them in as many ways as are possible. Charity is one way of
alleviating the sufferings of others, as long as the sufferings arise from material needs. Hence, in
order to help the needy and to ease their sufferings, religions have sanctioned charity. In
Buddhist literature, we find instances of public charity. Buddhist teachings and law of karma
serve as a motivational force for charity. Islam also decrees that every Muslim must give one

fortieth of total wealth annually as zakaat. This is yet another example of importance attached to
charity (Gore et al., 1959).
Further, different events in history such as wars, epidemics or pandemics, as well as economic
disturbances rendered people workless. In such situations, people had no other option but to beg
(ibid.). Pande (1986) puts forth another way of looking at it. While he uses the term ‘social
parasitism’ for living on alms, he classifies three impetuses behind begging:
One, economic necessity due to extreme level of poverty and destitution;
Two, because of religious motivation as in the case of sadhu, sanyasi, darvesh and faqirs; and
Three, hedonistic considerations designed to avoid the drudgery of hard work and industry.
Anti-vagrancy and beggary prevention laws:
Anti-vagrancy and anti-begging laws trace their origins to the England of fourteenth century. It
was a time when feudalism was giving way to capitalist mode of production. In mid-fourteenth
century, the Black Death — one of the most devastating pandemics in human history — killed
about seventy-five million people (Dunham, 2008). This huge loss of lives resulted in shortage of
labour. Also, people saw better prospects in industrial work and migrated from villages to big
towns and cities for better wages. This resulted in a huge shortage of labour in villages for the
feudal class, and demands for better wages increased. In addition to this, movement of labourers
from villages to towns and cities also eventuated (Gillin, 1929).
To tackle the problem of the movement of labour, the first anti-vagrancy law — The Statute of
Labourers — was promulgated by Edward III and his council in the year 1349 CE. It was
enacted by the Parliament in 1378 under the reign of Richard II (Gillin, 1929). This law was also
implemented in order to prohibit people from living in cities without proper housing and,
therefore, criminalising homelessness (Gillin, 1929; Chambliss, 1964; Ocobock, 2008).
Consequently, by criminalising homelessness, what it also did was that it ensured that people
remained in villages and not move to cities. And thus, poor villagers were kept tied with their
feudal lords and the wages were kept low (Chambliss, 1964; Ocobock, 2008). The basic nature

of the statutes remained more or less unchanged for the next one and a half century, and
whatever little changes occurred, they were only to increase the severity of the punishment
(Chambliss, 1964).
During the reign of Edward VI, the law provided that if a person offers work to a vagabond, and
is denied, he can take the person as a slave for two years. Such a vagabond had to be presented
before two judges who got him marked with the letter ‘V’ (vagabond) and presented him to the
person who brought the vagabond to the judges. Absconding once attracted the penalty of being
branded with letter ‘S’ (slave) either on the forehead or the cheek. Running away for second time
was such a felony that the person had to suffer death (Gillin, 1929; Chambliss, 1964).
Later, in the statute of 1508 CE, the focus of the vagrancy statute shifted from movement of
labourers to control of felons; and this change in statute was primarily because of changes that
were taking place in the social structure of England during that period (Chambliss, 1964).
Vagrancy attracted as harsh a punishment as death penalty where the offence was repeated twice,
that is, in the third occurrence of the violation of the statute (ibid.).
As the sixteenth century started nearing its end, the law was reformulated and it allowed
impotent people to beg with a permit from parish officers. Discharged soldiers and mariners also
had the permission to beg but not without getting passes for the purpose. In 1656, the
Cromwellian parliament put a legal framework in place whereby a judge could punish wandering
people as vagabonds and rogues even if they were not begging. These measures also gave the
judge an authority to punish such people who were making music or asking people to hear them
make music (Eccles, 2012).
During the course of the seventeenth and eighteenth centuries many amendments and changes
happened to vagrancy and many were replaced by new vagrancy laws. In 1792, a new poor law
called the ‘Vagrant Act of 1792’ was passed. This new law was enacted to address many
complaints about the existing poor laws not being implemented and also there were voices in
favour of tougher measures (ibid.).
Although anyone could catch a vagrant and produce him before a justice of peace, most of the
arrests were made by constables and thus, the implementations of the vagrancy legislation were
primarily carried out by constables and justices of peace. These constables used to serve without

pay as a parish duty though they got certain allowances. But these constables used to face
criticism for not being as enthusiastic about arresting vagrants as their superiors wished them to
be. The justices of peace also served without pay although they were given wages for the
sessions that they attended (ibid).
Despite the 1792 law having been reformed because of public cries, there still were complaints
that the vagrant laws were abused as public demanded a stricter enforcement and also, tougher
penalties. In all this, the justices blamed the constables for not being alert and dutiful. They
complained that the constables failed to apprehend the vagrants as they were negligent. They
also accused that constables even took bribes from the vagrants and made a good amount of
money. The peace officers said that arresting vagrants wad pointless as the justices always
released them rather than punishing them. The constables, on the other hand, had the point that
the public was not supportive enough so that the streets could be cleared of the vagrants (ibid).
The usual sentences for the vagrants were to be sent to a jail for up to a month or whipped. The
rogue or the vagabond had to be whipped so many times that his body be bloodied (ibid).
In the United States:
Different states of the United States adopted the vagrancy laws of mid-eighteenth century
England, with minor or no changes. In addition, the vagrancy laws of the States were even more
concerned about controlling criminals, undesirables and the unruly than was the case in England.
Controlling criminals and undesirables was the raison d’être of vagrancy laws of the eighteenth
century United States. This is equally true in today’s context as well (Chambliss, 1964). But this
is not to say that the anti-migrant nature of the law had diminished totally because during the
Great Depression, the state of California used the vagrancy law to restrict entry of migrants from
other states (ibid).
In Canada:

In Canada, as in the United States, the vagrancy legislation was entirely based on its English
counterpart. It dates back to as early a time as 1759 CE. The perception about vagrants was that
they were highly problematic to the well-being of the nation. Here also, the primary focus of the
law was regarding vagabonds, criminals, rogues, and other idle and disorderly persons, and about
houses of correction (Ranasinghe, 2010). The nature of the law largely remained unchanged until
the mid-twentieth century when certain amendments were done owing to many shortcomings and
inconsistencies in the law (ibid.).
In France:
In September 1777, an officer of the Royal Constabulary in the city of Rennes arrested three men
who were begging and were not the local residents of the city. After cross- examination, they
were sent to a building which served as a jail and workhouse for beggars. Adams (1990) says
that arrest and incarceration of beggars was routine in early modern Europe. In France, it was
exercised through two enactments viz. the Declaration of 1764 against vagabonds and the order
in council of October 21, 1767 (Adams, 1990).
In India:
In eighteenth and nineteenth centuries, occurrences of repeated famines in India resulted in huge
loss of lives. The effect of these famines was not fully felt until the starving poor left the
countryside – where famines generally originated – in search of food and shelter, and came to
urban centres bringing their plight along (Arnold, 2008).
Because of this movement of famine-struck people from countryside to cities, vagrancy

increased. In the late 1830s in Calcutta, the problem of vagrancy got so much intensified that the
society urged the government to pass a vagrancy act. This public outcry for a vagrancy act was
rejected by the government primarily because of the scale of the problem. But also, the
government did not want to hurt Hindu and Muslim sentiment by enacting a law whereby,
seemingly, religious mendicancy and almsgiving would be prohibited (ibid).

The forerunner to all the vagrancy laws in India is the European Vagrancy Act, 1874 (ibid). But
it was enacted to deal with vagrants of “European extraction” and not Indian vagrants (European
Vagrancy Act, 1874). Thereafter, section 109 (b) of the old Code of Criminal Procedure
prohibited vagrancy. Then, the Indian Railways Act of 1941 proscribes begging in railway
premises anywhere in India (Bhattacharyya, 1977). After this, many state level acts were
formulated and enacted. The first amongst them is the West Bengal Vagrancy Act, 1943
followed by many other provinces such as Bombay, Travancore and Madras (all in 1945) (Press
Information Bureau, Ministry of Social Justice and Empowerment, Government of India, 2010).
The Bombay Beggars Act, 1945 is a precursor to the Bombay Prevention of Begging Act, 1959
(hereinafter BPBA) which forms the basis of the subject of this paper.
A glance at the law:
The BPBA was enacted in the year 1959, with the purpose of preventing people from begging,
and rehabilitating them by imparting vocational skills to people in begging. However, its
objectives, and motives remain questionable since it is inherently punitive in nature because of
the way it define ‘begging’, and the way it functions.
The definitions of begging as given in the Act are as follows:
— Soliciting or receiving alms, in a public place, whether or not under any pretence such as
singing, dancing, fortune-telling, performing or offering any article for sale [emphasis added].
— Entering on any private premises for the purpose of soliciting or receiving alms.
— Exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound,
injury, deformity, or disease whether of a human being or animal.
— Having no visible means of subsistence and, wandering about or remaining in any public
place in such condition or manner, as makes it likely that the person doing so exists by soliciting
or receiving alms [emphasis added].

— Allowing to be used oneself as an exhibit for the purpose of soliciting or receiving alms
(Government of Maharashtra, 1976).
By definition, singing, dancing, performing, fortune-telling, or offering article for sale are
pretences of begging. While the arts and performance industry in the formal sector is flourishing
in the country, when poor people perform on the streets, it is deemed as begging. Similarly, well
known astrologers and god-men are treated as celebrities but fortune tellers soliciting clients on
the streets are deemed as beggars. Sale of goods and articles in the formal space is legitimate
business but people hawking goods and wares on the streets are criminalised by the law. And for
these offences, there are provisions of detention for up to ten years, and in certain cases, life
time. These clauses — along with many others — of the Act are violative of basic human rights,
and therefore, are a matter of concern.
Overview of the Situation:
In the early days of the vagrancy laws of England, if a person who was into begging, did not
have a place to live in the city, was sent back to his native place (Gillin, 1929). This bears a
striking resemblance to the situation in India today. In 2007, inmates from the beggars’ homes of
Delhi were released under the condition that they would go back home. This can be done under
section 5 (5) of the BPBA (Ramanathan, 2008). It strikes as strange that a law of twentieth
century India bears so much resemblance to a law of England which was formulated centuries
ago and was basically meant to control movement and wages of labour. This anti-migrant nature
of the BPBA is tantamount to the curtailment of the right of citizens to move about and live
anywhere in the territory of India (ibid.).
All the anti-begging laws are based on the assumption that individuals choose idleness
voluntarily and also that idleness entails criminality (Goel 2010). Some of the labels attached to
people into begging are “ugly face of nation’s capital”, “obstructers of smooth flow of traffic”,
“trespassers”, and “encroachers on public land” (ibid.). But as has gone in the preceding
paragraphs, vagrancy laws had primarily been formulated to check the movement of labour so
that they remained tied up to their feudal lords; and their wages remained low. The BPBA is a
reminder of the colonial mindset from which we still have not got ourselves free. The people it

criminalises are not actual offenders, rather they are status offenders. They offend by being what
they are, rather than by doing what they do (Ramanathan, 2008). The Act is problematic at two
levels; one is at the conceptual level, the other is at the execution level. First, the assumption that
one chooses idleness of her/his own free will is problematic because hardly any one does that;
and the assumption that idleness leads to criminality is problematic to the same extent (ibid.).
Second, most of the times, there are false arrests, as a committee appointed by the Bombay High
Court concluded:
— The arrest is made of the people who are found on the street in dirty clothes and
wandering. They are not actually found begging.
— Large number of wrong arrests is made which is inhumane and unjust.
— There are no criteria to decide who is a beggar, who is sick, physically handicapped or in
need of economic help (cited in Ramanathan, 2008).
When all the laws define certain actions as crimes, vagrancy laws do not make any specific
action or inaction illegal (Ocobock, 2008) but they criminalise the state of being of an individual.
Throughout history, those who have been arrested for vagrancy have been poor, young, able-
bodied, unemployed, rootless and homeless people.Yet it has been the seeming voluntary
unemployment and mobility of people for which vagrancy laws have been designed (ibid.).
This act targets that echelon of the society which is the most vulnerable group, whose lives are
marred by lack of choices, too much of necessity and often undeserved want. The Constitution
and law are supposed to protect the ones who are less equal than others (Ramanathan 2008) but
what they are actually doing in this case are pushing the already marginalised population to
further deprivation. Beggary primarily is indicative of extreme poverty. It is the absolute failure
on the part of an individual to sustain effectively through certain means of productivity and
livelihood (Sarkar, 2007). The individuals trapped in beggary must be given support so that they
could pull themselves out of it. Merely incarcerating them in Beggars’ Homes only exacerbates
the problem rather than mitigating it. According to D. Seers, “[t]he questions to ask about a
country’s development are: What has been happening to poverty? What has been happening to
inequality? What has been happening to unemployment? If all three of these have become less

severe, then beyond doubt this has been a period of development If one or two of these central
problems have been growing
worse, especially all three have, it would be strange to call the result ‘development’, even if per
capita income doubled” (cited in Sarkar, 2007). And since all the problems mentioned here have
been getting bad to worse, the problem of beggary is also increasing. And if we do not address
the causes of the problem, and involve ourselves only to take care of the effects, it will only
prove to be like an anodyne. The major problem will remain unchanged.
The phenomenon of beggary and the act of begging do not originate from a vacuum. Many
factors and processes are responsible for the fact that someone takes up begging for sustaining
oneself and his/her family. The factors that push an individual, a family, or a group of people
towards beggary are many. Extreme poverty, physical disability, mental illness, old age,
migration, drug addiction, and unemployment, destitution, broken homes, unguided childhood,
debts, natural calamities, death of the earning member in the family, and chronic and pernicious
diseases are many of the reasons which push people into begging. It also needs mention here that
these causes are not mutually exclusive. An individual might face many of these simultaneously
(Mukerjee, 1943; Indian Conference of Social Work 1957; Gore et al., 1959). Apart from these,
there is religious mendicancy. Another very frequent cause of beggary is workers getting
displaced from land. Such workers, when they are unable to find employment or work, are forced
to beg for subsistence (Mukerjee, 1943).
People suffer from a plethora of problems, they start begging only after all the options of
livelihood are exhausted. In such a state of affairs, the State – rather than coming up with
measures to counter the effects of their problems – steps in to criminalise and punish the people
who are guilty of being destitute. Such is the nature of this Act that it criminalises people for
being what they are rather than what they do (Goel, 2010).
All the anti-begging laws assume that people freely choose idleness and also, that idleness is a
potential source of criminality. But begging is a social problem and must not be seen as a crime
(ibid.). By legislating laws such as the BPBA, our legislators have proved that we are still living
in our colonial hangover.

As has been discussed earlier, the BPBA is a statute under which begging is punishable offence
(up to three years of detention in first instance and in repeated cases, may go up to ten years; and
lifetime in some cases) (Government of Maharashtra, 1976). The Act was formulated and passed
to curb the issue of beggary such that people into begging could be rehabilitated by providing
them some vocational training. The training and capacity building would help them in getting
employment. But the way it is implemented and, the way beggar and beggary have been defined
in the Act, make it a very anti-poor act (Tarique and Raghavan 2011). Article 41 of the
Constitution of India states that “the State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in other cases of
undeserved want”(Legislative Department, Ministry of Law and Justice, Government of India
2015). But rather than trying to tackle the larger issues related to beggary, the State is treating its
own citizens as criminals by punishing them under this act; not because they do criminal acts but
because they have fallen through the social safety net and have nothing else to do but to beg in
order to feed themselves and remain alive (Ram Lakhan vs State 2006).
Defenders of the Act argue that at least these people get shelter in forms of Beggars’ Homes. But
these Beggars’ Homes as institutions are nothing less than jails. They label and tag the detained
person as a criminal and keep him/her in detention under the pretext of providing shelter, food
and providing some training (Dhar, 2014).
The State is treating the problem of beggary from the wrong end. The problems enumerated
above should all be first dealt with in order to reduce and check begging. Because as long as
these problems persist in society, beggary would exist. The punitive approach of the Act should
be reconsidered. Taking a punitive approach to poverty and destitution is not the solution. The
BPBA has been in existence and in implementation for more than half a century, but the problem
of begging has not reduced, rather it has increased. This fact in itself ridicules the existence of
this law (Gopalakrishnan, 2002).
Conclusion:

Tragedies push individuals into the farthest ends of social margins before they take to begging. It
has been discussed earlier that many a factors are responsible behind this. The beginning of the
act of begging does not happen overnight. It does not happen in a way where a person gets up
one fine morning and suddenly decides to beg. It is the result of a long drawn-out process. Only
after this process of helplessness, and misery has taken its course that one finally gives up and
starts seeking alms at the cost of her/his dignity. It is often assumed that people who are into
begging take it as a choice. But it is largely a matter of circumstances. To cite an example, in the
aftermath of the U.S. war in Afghanistan, women in burqa could be seen in streets asking for
alms. Many of these women were highly educated — doctors, judges, lawyers, engineers,
teachers. It was a blow of ill-fate that they were begging in order to feed themselves and their
families. Destitution occurs when options are exhausted. But even in instances where begging is
the first resort, there must be some or the other social distress behind this activity (Sharma,
2006).
It is, therefore, a matter of concern that the State steps in with an anti-begging law ignoring these
conditions, sending people in custody. The failure of the State on the front of destitution and
urban poverty is, in itself, a matter of serious concern, but criminalising the most marginalised
population for being poor is even more so. One of the reasons because of which the State is
behaving this way is it wants to hide its failures in dealing with urban poverty, mental illnesses,
disabilities and other socio-economic problems to which the phenomenon of beggary owes its
genesis.
All the discussion that has gone in the foregoing paragraphs suggests very clearly that this act
must be critically evaluated and its existence be reconsidered.
Module 3: Law, Poverty and Gender Justice
3.1 Women, Poverty and the Law
fundamentalism is providing meaningful discourse and participatory structures for women, this
requires not only communicating the discourse of rights, but legitimating the discourse of

secularism. Meaningful participatory structures on a grassroots level must be developed to
adequately compete with fundamentalism.
The dilemma is how to legitimate the discourse of secularism without subjugating women to the
discourse of liberalism. A secular state is essential if women are to be able to make claims
regarding their rights to equality. And yet, we also understand that such claims are inherently
limited — that is, social reconstruction will not occur within the sphere of law alone. A secular
state is perhaps a necessary but insufficient condition for social transformation.
In this paper, we have explored some of the ways in which the legal regulation of women in
India continues to reinforce women's unequal socio¬economic position. We have also considered
some of the debates around the role that law can reasonably be expected to play within women's
struggles to overcome their subordination. Our objective has been to reveal the contradictory
nature of legal regulation of women — that is — the extent to which law is both a site of
oppression and, at the same time, an important site of struggle. Thus, it is important for feminists
to continue to engage with law — to work, for example, for legislative reform and enforcement,
while recognizing that neither reform nor enforcement of the law alone will fundamentally alter
the social relations of women's oppression.
3.2 Atrocities against Women
1. INTRODUCTION
Violence against women is partly a result of gender relations that assumes men to be superior to
women. Given the subordinate status of women, much of gender violence is considered normal
and enjoys social sanction. Manifestations of violence include physical aggression, such as blows
of varying intensity, burns, attempted hanging, sexual abuse and rape, psychological violence
through insults, humiliation, coercion, blackmail, economic or emotional threats, and control
over speech and actions. In extreme, but not unknown cases, death is the result. (Adriana, 1996)
These expressions of violence take place in a man-woman relationship within the family, state
and society. Usually, domestic aggression towards women and girls, due to various reasons
remain hidden.

Cultural and social factors are interlinked with the development and propagation of violent
behaviour. With different processes of socialisation that men and women undergo, men take up
stereotyped gender roles of domination and control, whereas women take up that of submission,
dependence and respect for authority. A female child grows up with a constant sense of being
weak and in need of protection, whether physical social or economic. This helplessness has led
to her exploitation at almost every stage of life.
The family socialises its members to accept hierarchical relations expressed in unequal division
of labour between the sexes and power over the allocation of resources. The family and its
operational unit is where the child is exposed to gender differences since birth, and in recent
times even before birth, in the form of sex-determination tests leading to foeticide and female
infanticide. The home, which is supposed to be the most secure place, is where women are most
exposed to violence.
Violence against women has been clearly defined as a form of discrimination in numerous
documents. The World Human Rights Conference in Vienna, first recognised gender- based
violence as a human rights violation in 1993. In the same year, United Nations declaration, 1993,
defined violence against women as “any act of gender-based
violence that results in, or is likely to result in, physical, sexual or psychological harm or
suffering to a woman, including threats of such acts, coercion or arbitrary deprivations of liberty,
whether occurring in public or private life”. (Cited by Gomez, 1996)
Margaret Schuler has divided gender violence into four major categories;
1) Overt physical abuse (battering sexual assault, at home and in the work place)
2) Psychological abuse (confinement, forced marriage)

3) Deprivation of resources for physical and psychological well being (health/nutrition,
education, means of livelihood)
4) Commodification of women (trafficking, prostitution)
2. CHILD
Female Foeticide and Infanticide
Technologies like amniocentesis and ultrasound used in most parts of the world, largely for
detecting foetal abnormalities, has been used in large parts of the Indian subcontinent for
determining the sex of the foetus so that it can be aborted, if it happens to be a female. The
information of the sex of the unborn was being extensively misused.
To prevent female foeticide and to restrict this misuse, the Prenatal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act was passed on 20th September 1994. The Act forbids
the communication of the sex of the foetus, but the enforcement of this act is not easy (Negi,
1997:26).
Medical Termination of Pregnancy Act (MTPA) 1971 allows abortion if the doctor is of the
opinion that the continuance of the pregnancy would endanger the life of the pregnant woman or
involve grave injury to her physical or mental health; or there is substantial risk that the child
would suffer from disabling physical or mental abnormalities. The anguish caused by pregnancy
as a result of rape, or as a result of failure of any device or method used by a married couple for
the purpose of limiting the number of children, may be presumed to constitute a grave injury to
the woman’s mental health. If the pregnancy is twelve weeks old, the opinion of one registered
medical practitioner is sufficient; for pregnancy of between twelve and twenty four weeks, the

opinion of two registered medical practitioner is required. The matter is thus purely between her
and the medical practitioner and even the husbands’ consent becomes unnecessary. In reality,
however, a woman’s’ right to abortion is very restricted and mostly it turns out to be a family
decision. Various court judgements have held that aborting a foetus without the husbands’
consent would amount to cruelty under the Hindu Marriage Act and hence a ground for divorce.
(Ramaseshan, 1998: 46). The procedure gets rampantly misused with the collaboration of the
medical fraternity, as an alternative in the case of couples who do
not opt to practise family planning methods and who want to do away with the unwanted child
(Negi, 1997:26).
The earliest known legislation against female infanticide was enacted by the British Government
in 1870. Prior to this, there were regional regulations established by the British, such as the
Bengal Regulation of XXI 1795 and Regulation III of 1807, that declared that infanticide
amounted to murder. The Infanticide Regulation Act of 1870 was passed nearly a hundred years
after the British discovered it officially. This Act acquired the compulsory registration of births
and deaths to enable verification of female children a few years after birth (Negi, 1997:24).
Since Independence, the Constitution of India contains certain provisions that guarantee the
welfare and development of children. The Indian Penal Code also has defined infanticide as
murder. While the deliberate act of causing a miscarriage or injury to the new born child,
exposure of the infant and concealment of births are covered under Sections 312 to 318 of the
I.P.C, the intention of preventing a child being born and causing bodily harm to the infant are
covered under I.P.C Section 315. Section 317 makes the concealment of the birth and secret
disposal of the dead body an offence (Negi, 1997: 24).

Miller categorises infanticide as a fatal form of child abuse. There are more passive forms of
infanticide like neglect, sustained nutritional deprivation, delayed health care for female infants
or, in other words, an unequal allocation of household resources detrimental to the health of the
girl child. In fact, the passive forms of infanticide remain unrecorded as infanticide by health
workers and sociologists. (Negi, 1997: 3)
Female infanticide and foeticide has occurred not only in several cultures across history, but is
known to occur in contemporary societies as well. Several scholars have documented female
infanticide for the period of British Colonial rule. In the period since independence, the practice
has been reported as occurring in many parts of the country including Tamil Nadu where the
practice was not known to exist before independence(Chunkath et al, 1997). The first recorded
instance in India, dates to 1789 when Jonathan Duncan, a British Resident at Benares, Uttar
Pradesh State, North India, detected the practice among a Rajput clan. The British passed the
Infanticide Regulation Act in 1870 and subsequently, a special Census was taken in 1881 in the
Western Provinces and Oudh to detect female infanticide. (Negi, 1997: 4)
Evidence from the British records and other historical sources shows that the practice was
confined to Northern and Western regions of the country including present day Rajasthan,
Punjab, Uttar Pradesh and Bihar. By contrast, female infanticide in Tamil Nadu is essentially a
post independence phenomenon (Chunkath et al, 1999: 4).
In South India, the practise of female infanticide existed among the Toda tribe of Tamil Nadu.
The only factual evidence to prove that it still exists among them, is the sex ratio data in the
Nilgiri District of Tamil Nadu. The data that Chunkath and others analysed confirmed that, the
practise of female infanticide is widespread in Dharmapuri, Salem and Madurai Districts. They
arrived at this conclusion after preparing a table on, distribution of Blocks by number of female
infanticide deaths, as per PHC records. They observed that there is a contiguous cluster of blocks
where female infanticide occurs and what should be a cause for particular concern is that the

phenomenon is spreading from the core area to a much wider neighbouring periphery area and
beyond (Chunkath, et al, 1997: WS25).
Dowry, given at the time of the daughter’s marriage, has influenced the status of women. The
daughter is considered to be a liability as her contribution to the family is temporary upto the
time she is married and sent to another family. Dowry is not the only transaction as far as the
daughter’s marriage is concerned. Krishnaswamy, 1988 has mentioned about a series of
ceremonies in South India, Tamil Nadu, associated with the girls in the family. Gifts in cash and
kind to the husband’s family during ceremonies connected with pregnancy, childbirth and
ceremonies for piercing the ear of the girl child and so on. (Negi 1997: 15) It is the inability to
meet the dowry-related demands from the in-law’s family, that is a major cause for female
infanticide. (Negi, 1997: 16)
The fear of sexual abuse of the girl child is also a cause for female infanticide. The husbands’
inability to do anything against the practice of sexual abuse of his wife by his father is due to the
fear that he would lose his share of the property from his father. The father-in-law due to his own
child marriage loses interest in his wife and finds it more convenient to find a bride for his son
and to have his “sexual fulfilment” through her. Mothers, sometimes, kill their babies as an act of
‘mercy’ that they may be saved from future excesses by husbands in the form of domestic
violence (Sherwani, 1998). They feel justified in killing their girl child so that she is saved from
all the suffering she may have to undergo all her life (Negi 1997:19).
Harris-White (1997) has cited poverty as one of the reasons for female infanticide (Negi 1997:
12). According to the survey done by Chunkath and others, the occurrence of female infanticide
is widespread among the poorer and socially disadvantaged community including the thevars,
vaniyars and scheduled castes (Chunkath et al, 1997: WS27). In contrast, Adithi & Community
Services Guild (1992) has mentioned several communities, including the wealthy Gounder
community, the landed caste in Salem District, Tamil Nadu, also practice female infanticide
(Negi 1997: 12). George and others (1992:1155) in their study point out although the Gounders,
live in remote villages, they own a significant proportion of land and are in the upper social

stratum of their villages, in the North and South Arcot Districts in Tamil Nadu. It has been
proved through various studies that the practise cuts across all classes and caste.
Child marriage
A girl child is twice vulnerable for being a child and a girl. Discrimination against them begins
even before their birth and continues as they grow. Their psychological, physicaland economic
dependence on the family makes them vulnerable to violence and child abuse within or outside
the family.
Since 1872, the following efforts have been made to legalise the minimum age of marriage. The
Civil Marriage Act of 1872 was passed as a result of the efforts made by Raja Ram Mohan Roy,
before which, a provision of the Indian Penal Code rendered the consummation of marriage
before the girl attained the age of 10, punishable with life imprisonment. Social reformers of
19th and 20th century tried to counteract child marriage as they felt it was marring child’s
educational, physical and economic progress. Noted social reformer Har Bilas Sarda, from
Ajmer District, Rajasthan authored and piloted a Bill in British Legislature to stop child
marriage, which, in course of time became law. The Child Marriage Restrain Act of 1929
(popularly known as Sarda Act) which fixed the minimum age for boys at 18 and girls at 15,
extended only to British India (Rajan, 1997: 31). The Act did not prohibit marriages nor did it
declare these marriages invalid or illegal (Saxena, 1999). With the codification of the Hindu
Law, the Hindu Marriage Act passed in 1955 made the minimum age of marriage for girls at 15.
In 1978, a further revision was made in the minimum legal age. With this last amendment, the
law was finally brought nearer in line with the accumulated scientific medical evidence showing
that the adolescent girl is at grave risk of her health, as also that of her children, until she has
reached the age of 18 at least. Alongside, the minimum age of marriage for boys also underwent
an upward revision to 21 years (Chhabra et al, 1986: 2).
However, it did not empower the police to prevent the marriage by arresting a person without
warrant or magisterial order. Under the amended provision of this Act the jurisdiction was given
to metropolitan magistrates or to judicial magistrates. They have been empowered to try any case
related to child marriage. Anybody including social organisations, the police or the any person

can make a complaint to the police or to the magistrate directly. Acting on a complaint, any court
can itself make inquiries. However in practice this whole process is so complicated and so time
consuming that by the time these authorities are in a position to take preventive action the
marriage is already over and all proof of such a ceremony obliterated. Further, Section 12 of the
amended Child Marriage Restraint Act empower the magistrate to issue injunctions prohibiting
marriages in contravention of this Act, but before issuing injunction the affected parties have to
be given a notice to enable them to present defence. An injunction issued without this notice is
not valid. This procedure is so time-consuming that marriages in contravention of this Act are
completed before the court can pass an order preventing them. The court cannot even issue a
general direction that marriage of a child shall not be solemnised within some particular time
limit, say eight months or two years. The punishment under the amended Child Marriage
Restraint Act remains mild, i.e. only simple imprisonment extended to three months and a fine of
Rs 1000. According to the provisions of Section 5 of the Act whoever performs, conduct or
direct child marriages shall be punishable (Saxena, 1999).
Ancient Hindu religious manuals like the Manu Smriti and Grihayastra set the age of life
partners at 13 for girls and 16 for boys. In the Vedic period early marriage of girls began to gain
approval and it became obligatory to have a girl married before she attained puberty. The age
was lowered still further in the Brahminical period, resulting in the abuse of children (The
Statesman, 1998). In India, 37.48 per cent of the total districts have a mean age of marriage
below the legal age of 18.

The phenomenon of child marriage prevails all over the country. According to Chattopadhyay,
1986, the phenomenon of marrying off minors persists in almost every caste and community of
Rajasthan. This practice prevails in Gaduliya Lohars of Central, Western and South Eastern
Rajasthan. It also exists among the Muslim converts and among higher castes of Pushkaran
Brahmins.
According to Saxena, 1999, during the Akha Teej or Akshaya Trithiya, the most auspicious day
for marriages, practically everywhere in Western Rajasthan - Bikaner, Tonk, Jhalwar, Jodhpur
and Jaisalmer, marriages are performed en masse. Every street, house, tractor and even buses
seem to reverberate with music and marriage guests. But in all marriages the bride and the groom
are children, some just two or three years old and some babies barely able to walk. These brides
and grooms are carried by their parents or are perched on a thaliv and taken around the holy fire
for performing the most important ceremony of their life (Saxena, 1999).
In communities like Dakot, Dhobi, Jatava, Kasai, girls are married between the age group of 11
to 13, and in case of boys it ranges from 14 to 16 years of age. The number of minor children
married in a mass marriage, in Rajasthan was reported to be 25000 in 1984 and 30,000 in 1983,

40,000 in 1985 and unofficial sources confirmed no decline in 1986 (Chattopadhyay, 1986). On
29th April, 1998 the day of Akshay Trithiya, National Human Rights Commission (NHRC)
deputed a senior officer to Bikaner and Jodhpur to report on the actual state of affairs. According
to a Senior Superintendent of Police (SSP) from the Commissioner’s Investigation Division, who
was witness to the event, says several marriages were solemnised with great celebration and
gaiety and without any obstruction from the authorities or members of the public. (Hindu, 19th
Aug. 1998). Nair sites an example of Dumma Village in Deogarh District, Uttar Pradesh where
almost all girls become brides before attaining the age of 10. There is not a single girl unmarried
above 12 years of age in the village (Nair, 1995).
The child-brides or grooms do not understand the solemnity of these ceremonies, but for elders it
is the safest and most tested way of keeping property and money within the family and innocent
children become pawns in family business (Saxena, 1999). According to Nair (1995), the
phenomenon of child marriage is linked to poverty, illiteracy, dowry, landlessness and other such
social evils.
There are several social factors that have contributed to the prevalence of child marriage. The
girl is considered to be a burden of the household and thereby she is married in an early age.
Marriages between cousins is common in South India. Sometimes marriages are settled even
before the birth of the child. In Rajasthan communities like Balai, Bhangi, Bolal, Chamar, Dholi,
Gujars, Malis and Meenas believe, that marriage can be performed in childhood days irrespective
of their age and maturity. Sometimes betrothal takes place before the pair is born, commonly
known as ‘kotha tharpana’ (Chattopadhyay, 1986). This custom ensures that the girl is secure as
she has been married within the clan.
Child Sexual Abuse
Sexual abuse is defined as “all sexually oriented conduct, commentary or gestures, intentional
and repeated, not desired or accepted freely by their object, for whom it is an imposition, a
humiliation or attack on their dignity”. (Diaz, 1996) (Adriana Gomez, 1996)

The term abuse includes physical as well as non-physical acts. There is enough evidence to
suggest that it often receives wider familial sanction. It is institutionalised in various forms,
ranging from long hours of labour, often within and outside the home, denial of food, neglect of
ailments and verbal abuse to physical violence by the husband and sometimes other family
members. Far more difficult to acknowledge are problems caused by the narrow definition of
sexuality as a means of perpetuating control over their minds and bodies in a conjugal
relationship. (Fourth World Conference on Women, Beijing, 1995)
Legally child sexual abuse is interpreted as ‘rape’ of a child who is below 16 years of age and
rape as defined in Indian Penal Code is penetration without her consent. However, in Indian law
has interpreted and defined rape as penile-vaginal penetration. This definition is inadequate as in
most of the child sexual abuse cases, Sakshi has worked with, there has been no sexual
penetration (Sakshi is an NGO working in Delhi). Child sexual abuse is the physical or mental
violation of a child with sexual intent. Thus Narang, 1998 defines child sexual abuse as follows:
• An adult exposing his/her genitals to a child or persuading the child to do the same.
• Adult touching a child’s genitals or making the child touch the adult’s genitalia
• An adult involving a child in pornography which includes exposing a child to

pornographic material.
• An adult having oral, vaginal or anal intercourse with a child
• Any verbal or other sexual suggestion made to a child by an adult
• An adult persuading children to engage in sexual activity (Narang, 1998: 20)

In most cases, the abuser is known to the child family friend, sibling, relative, servant, teacher
and so on. There have also been cases where the abusers have been very close relatives - father,
grandfather, brother and uncle (Narang, 1998: 21).
The abuser is usually an older person who is in some position of trust and/or power vis-a- vis the
child. Even though both men and women can sexually abuse a child, most abusers are male. The
abuser violates a relationship of trust with the child. They may use tricks or threats to persuade
the child to take part in a sexual activity. The abuse generally takes place in the child’s home or
the abuser’s home. Given that the abuser is often known to the child and usually has both access
to as well as authority over the child, the abuse does not commonly involve physical violence
and generally continues over a long period of time. The abuser uses threats or blackmail to warn

the child against telling any one about the abuse. This may be the primary cause for the child’s
silence (Narang, 1998: 21).
Child sexual abuse is on the increase because of the responses to it and towards the victims. One
of the response being denial of its existence and disbelief: Many people deny any existence of
child sexual abuse especially within a family. The concept of Indian families is perhaps the most
sensitive and revered. Therefore, it is difficult to believe that sexual abuse in the families really
happens. For them, if at all the concept of child sexual abuse exists, it is limited to a particular
class. The popular belief is that it is very rare and happens only in low class families (slums).
Even if some people believe that child sexual abuse exists, there is denial publicly as it is
difficult for them to deal with the fact that it is prevalent in our traditional Indian families.
Due to ignorance, denial of its existence, and inability of adults to deal with the subject, the child
is met with disbelief when he/she finally summons up the courage to confide in
someone about the experience and trauma of being sexually abused. Thus the child is forced to
suffer in silence giving the abuser greater power over the child.
Sexual abuse is shrouded in shame and secrecy. Sexual organs or any reference to sex is
considered to be shameful. Children are not given proper answers when they ask questions about
sexual organs. They get the messages that certain body parts are dirty and they should never be
talked about. So, when a child is abused, there is total silence. The child knows that there is
something wrong going on, yet the child does not have the language or the words to express it.
There is loneliness because the child cannot talk about it to anybody and does not know whom to
approach. This hampers disclosure and thus the abuse continues.

In families where parents/relatives accept and realise that a child has suffered sexual abuse, the
child is forced into silence given the culture of privacy, family prestige and family unity. The
child generally does not receive much support from the family as they do not want the matter to
be disclosed and the family name exposed. Thus the abuser is not confronted and the child is
encouraged to ‘forget’ the traumatic experience. The child and her future are sacrificed for the
image of the family.
A healthy environment is a family situation where family communication is clear, direct and
specific and rules are flexible. Children can freely approach elders or adults with questions or
concerns about sexual experiences in the full knowledge that the adults concerned will address
these issues with the child’s welfare in mind. In this situation no trusted older individual violates
the child’s person and the child feels the freedom to say no to potential abusers and report the
incident with full confidence that he or she will be protected. Families in which incest occurs
often appear to be like any other family. However, they are riddled with secrets and
psychological stress. Incestuous families tend to be closed, inward families lacking in any real
emotional connection to people outside the family. These families often have a history of
problems for several generations, which increase the potential for incest. Frequently the mothers
of abused children were themselves molested as children. Many victims assume that being
dominated and treated poorly by the offender is just a fact of life and not something to be
challenged. However it is vital to note that, while family influences may contribute to incest, the
dysfunction itself cannot cause an individual to become sexually abusive. However, the situation
makes it easier for the symptoms to play themselves out. The offender is the sole person
responsible for the abuse (RAHI, 1998: 6).
According to Singh Dhiraj, most often children do not have the language to describe sexual
activity. It is difficult for a child to articulate his or her experience. Moreover, they are extremely
traumatised as they try to make sense of what has happened to them. Hurt and fear of disclosure
or punishment are the initial responses that prevent a child from speaking out. Hence it is very

important to cultivate openness within the immediate family where the children can confide in
their parents without the fear of ridicule or reproach.6
Parents can look for certain telltale signs and reactions to find out how safe their children are,
says Singh,
• The child tries to stay away from friends and people he was close to earlier. This could be
due to guilt that has flooded his little conscience.
• He or she may seem depressed. Depression itself may not be easy to gauge in children
but it is translated into more expressible emotions such as being irritable, withdrawn and listless
• The child may resume bed-wetting if he or she has stopped it. Sometimes he or she can
get incontinent while awake.
• He or she may avoid a particular individual and show fear when forcibly made to come
face to face with this person. This person could be abuser or someone who looks like him.
• Difficulty in concentrating or failing tests at school
• Sudden use of sexual language and swear words.
• Sexual exploitation or exploration of other children.
• Irritation in throat and bladder infections.
• Sexually transmitted infections.
Child Prostitution and Trafficking
6
Saravanan, S., Violence against women in India. A Literature Review. Delhi, Institute of Social Studies Trust (ISST).
(2000)

The UN Special Rapporteur on the sale of Children, Child Prostitution and Child Pornography
defines Child Prostitution as the sexual exploitation of a child for remuneration in cash or in
kind, usually but not always organised by an intermediary (parent, family member, procurer,
teacher, etc.) (Bruce, 1996: 9).
Thus the violence against the girl child acquires a new dimension in the sale of young girls
below the age of 18 for prostitution and trafficking. To curb this, the Suppression of Immoral
Trafficking Act, later modified to the Prevention of Immoral Trafficking Act has been passed.
Prostitution in India is a Rs 40,000 crore annual business. It has been estimated that 30% of the
sex workers are children, who earn Rs.11,000 crore. This has been reported by a study by the
Centre of Concern for Child Labour (CCL). ( The Times of India, 10 Nov 1998). At present the
number of child prostitutes in India is between 270,000 and 400,000, with the number of children
in “commercial prostitution” increasing at the rate of 8-10% per annum.
The practice of child prostitution is in blatant contravention of the UN Declaration on the Rights
of the Child, endorsed by the “National Policy for Children” of the Ministry of Social Welfare,
Government of India.
Principle 9 of the Declaration states: The child shall be protected against all forms of neglect,
cruelty and exploitation. These shall not be the subject of traffic in any form.”(Rozario,
1988:57).
Poverty and deprivation, coupled with a low status in society for girls is a primary factor for
child prostitution. It is well known that prostitution exists in the Third World because of poverty
(Grant,1996). According to a UNICEF Report, children are often required to work to supplement
their meagre incomes. (Hindustan Times, 28 Oct 1996). Thus in a country like India, child
prostitution in most cases stems from child labour. Prostitution is often viewed as an avenue
providing easy money, which seems attractive for families steeped in poverty.
Dr. K.K.Mukhpadhyay from Delhi School of Social Work, University of Delhi, in his
presentation based on surveys he conducted for the Government of India, said that young girls in
India were taken away from their parents in poor backward and drought affected districts of the

country for purposes of trafficking. These were also states with gender inequality and low
literacy rates. The trafficking network was well organised in these areas. He found in his survey
that about eighty per cent of the girls who were in this profession entered it as children and due
to difficult circumstances, such as poverty, illiteracy, ignorance, and deception. The increasingly
consumerist society only further complicated the situation. Children are often hired out or sold
by their families to agents who may or may not reveal the true nature of the work offered. The
agent may promise a job as a domestic servant or factory worker at a wage many times higher
than is customary in rural areas. A sum which is large in the eyes of the family, may be handed
over to them, and the child is obligated to work to pay off the debt. Some young girls are
deceived by young urban boys who go to villages. The biys conduct fake marriages with these
girls, bring them to the cities and sell them to the brothels (Mukhopadhyay, 1995:7).
On the economic front, it must be noted that development policies and patterns of development
promoting tourism, industrialisation, rural to urban migration particularly of males generate a
demand for commercial sex. In such a situation, the developing countries bear the brunt of the
problem. Economic disparities within countries, and between countries and regions fuels the
demand for trafficking from low income to high income areas. In addition, population mobility
has been facilitated by globalization and liberalization as they have opened borders and relaxed
controls. (Trade in Human Misery,1998) Such a scenario gives a spurt to tourism which leads to
‘sex tourists’ from the West journeying East with the purpose of exploiting children. Goa has
become one such haven for paedophiles and people indulging in child prostitution. According to
unofficial estimates, there are at least 400 minors in the locality involved in the trade. Further,
there is no respite in the situation as the existence of minors is often hidden on receiving a tip off
about the raids. There are also instances of the arrest of 25 odd girls and their being summarily
released subsequently, once their ages have been found to be above 18 (Menon, 1997.)The
exploitation is shown in the fact that a girl below the age of 16 is available for Rs 300- Rs 500,
justifying for Goa the name of ‘India’s Bangkok’ (Rai, 1997).
Men who travel to the Third World for ‘sex with children’, argue that there is nothing new in
going abroad to escape the moral strictures at home (Grant, 1996). This phenomenon is further
enhanced by the growing demand for very young girls with a premium on virgins. According to
Ms. Prasanna, a research scholar with the Department of Criminology at Madras University, the

fear of AIDS often makes the Western ‘sex tourist’ to seek virgins. Such a demand is catered to
by large markets in Bombay and Hyderabad also (The Hindustan Times, 5 Oct 1994).
Child prostitution in India is further aggravated by the presence of social conventions and myths
prevailing in society. It is popularly believed that sex with a virgin is a cure for venereal and
other diseases. Moreover, a reason for the rise in child trafficking can be attributed to the myth
that having sexual intercourse with a child would protect the client from AIDS. This was stated
at a workshop organised by UNICEF on “The Rights of the Child” (The Hindustan Times, 28
Aug 1997). With the low levels of education and literacy, such myths are only perpetuated. It is
well known that the female sex is further disadvantaged due to the inadequate educational and
employment opportunities, gender disparities in access to opportunities and the lack of social
safety nets (Trade in Human Misery, 1998).
Social conventions play an important role in the continuance of the phenomenon of child
prostitution. These include child marriages, polygamy, dowry and social stigma against single,
unwed, divorced women and girls who have been sexually abused (Trade in Human
Misery,1998). Children, especially young girls, in these circumstances are especially vulnerable
to the prostitution racket. There have been instances of girls being driven into the sex trade
following traumatic sexual experiences during childhood, including rape. If, in the case of
Shahida of Kozhikode , it was the violence inflicted by her father’s younger brother followed by
molestation by her cousin and then rape ( The Hindustan Times, 2 Oct 1998), Lakshmi’s tale of
woe began when she was raped by her step father at age 8 and her further sexual exploitation for
food when she left home (Uniyal,1998). Prostitution thus becomes a viable option for children
who have been abandoned, for those from disrupted families and for those who are financially
supporting their families.
The prevalence of traditional and religious practices in some communities that consist of
dedicating girls to gods and goddesses serve to encourage child prostitution (Trade in Human
Misery, 1998). The evolution of the Devadasi cult can be traced to a period earlier than the entry
of Aryans in India. The cult appears to be a relic of the Dravidian matriarchal society. It exists

today in India with many regional variations (Shankar, 1990:54). This social convention
condemns nearly 5 to 10 thousand girls every year to a life of sexual servitude (concubinage) and
subsequently into prostitution. The devadasi girls form 15% of the total women in prostitution in
India. In the border districts of Maharashtra and Karnataka states, their percentage in prostitution
is nearly 80%. The striking fact is that all of them have entered prostitution in an extremely
organised manner. This process involves first making the girl a devadasi and then legitimising
her entry into prostitution with the help of ‘religion’ (Gilada, 1990: 66). The practice receives
sanction from mythology and was once supported by feudal land owning systems. Social
backwardness is the most closely linked factors to both devadasis and prostitutes (Gilada,
1990 :67). It is known that ethnic minority, “scheduled castes” and “other backward classes”,
indigenous people, hill tribes, refugees and illegal immigrants are particularly susceptible to the
racket (Trade in Human Misery, 1998). Interestingly, the “signs” used to identify the chosen
child (who is then dedicated to the goddess Yellamma) are those of ill health - white patches of
eczema, leprosy and even mental retardation. Researchers now speculate whether prostitution
was one lucrative way of making use of such otherwise “worthless children” (Aiyar, 1997).
Among those involved in child prostitution, it is the street children who are most vulnerable to it.
According to Dr. A.B.Bose, advisor in the Planning Commission, the problem of street children
is primarily the outcome of four circumstances - poverty, non- existence of a supportive social
and economic structure, rapid urbanisation leading to chronic housing shortage and the growth of
slums and an oppressive home environment (Kanth, 1994).
The prevailing situation is aggravated by the lack of awareness of legal rights, the exploited
situation of the victims and the absence of a channel for seeking redress. In the presence of the
growth of trans-national crime and expansion of drug trafficking networks, weak law
enforcement mechanisms, exploitation by corrupt law enforcers and officials are the order of the
day (Trade in Human Misery, 1998). On paper, prostitution per se is not illegal and hence there
are loopholes in the law that ensure a person goes scot-free even if he sells a minor girl to a
brothel, provided there is a stamped receipt (Nigam, 1993:23).

The erosion of traditional family systems and values and the pursuit of consumerism encourages
sale of children (Trade in Human Misery, 1998). The National Commission for Women
identifies sexual glorification by the electronic media as one of the prime reasons for minors in
prostitution (Prabhudesai, 1997). In 1991, the Central Social Welfare Board conducted a study
on Child Prostitution. Among the causes of entry to prostitution, economic distress accounted for
41%; desertion by spouse = 24.5 %; deception = 11.9%; social customs = 5.35%; family
tradition = 5%; kidnapping and abduction = 2.25%. The study also indicates that many of the
young girls join, emulating the example of girls who have joined the trade and as a consequence
are living well (D’Cunha, 1995: 22).
It has also been shown that most prostitutes are forced to remain in their professions due to
police highhandedness and the clout of local henchmen (Jha, 1998). This makes chances of
rescue and rehabilitation very slight.
It has been found in 1994 that India has four lakh child prostitutes. According to Mr. K.T. Suresh
of the Bangalore based NGO “Equations”, about 20% of India’s 2 million prostitutes are below
the age of 15. Bombay city alone is believed to have 40,000 child prostitutes. The flesh trade in
India is liberally replenished from Nepal, which is believed to contribute an estimated 20,000
young girls every year (The Hindustan Times, 5 Oct 1994). The survey conducted by the Central
Social Welfare Board in 1991-92 in the cities of Bombay, Calcutta, Delhi, Madras, Hyderabad
and Bangalore shows that 15% are below the age of 15 at the time of entry and 25% are minors
in the age group of 16-18 years (Pioneer, 8 June 1994).
However, among the various studies conducted, there does appear to be some discrepancy in
their findings. A study on prostitution in Delhi has challenged the findings of a report by the
National Commission for Women on child prostitution. While the NCW says that children form
60% of the prostitutes in the Capital’s main sex market at G.B. Road, the study by Jan Shakti
Vahini figures it as low as 7% (Indian Express, 20 Dec 1998).

On a similar note, very few cases of child sex workers have been reported in the state of Kerala.
However, according to the study conducted by Loyola College of Social Sciences on “Girl
Children in Prostitution”, this does not imply their total absence; it merely indicates that locating
them is difficult (Chadha, 1998).
Violence against prostitutes is of two kinds, argued Mr Dasgupta, and relates to violence at the
workplace. Girls are sold by their parents or procured by abductors. A good number, about 25%
to 30% are known as chukris in Calcutta. These women who are sold by their parents or
husbands are severely beaten and tortured into submission. As a rule they have to pass on all
their earnings to the keepers and any deviation from this norm is also countered with violence.
Lack of space accounts for the presence of keepers in a big way. However those with a place of
their own face yet another problem: Goondas (toughs) forcefully seek entry into the women’s
houses and assume the role of the pimps. They live off their earnings and, in case of resistance,
get violent. Data revealed that clients were the least prone to use violence. Mr Dasgupta’s study
showed that 75% of women in the prostitution industry are from West Bengal, of whom a third
are from Murshidabad, Birbhum and Burdwan or the Radh area. The Radh are a has traditionally
sent girls to Calcutta for prostitution. What is important here is the prevalence of child marriage
and child widows. When they returned to their parent’s home, as they were considered burdens,
they were sent off to Calcutta to work as housemaids or prostitutes. Earlier, these women came
from Kulin Brahmin and Kayastha families, nowadays they are from all castes (Dasgupta, 1995:
21).
Child Labour
Patil .B.R has defined child labour in two dimensions. If the purpose is to prevent child labour
and to provide compulsory education, child labour would mean and include, all those who are
below the age fourteen and who are neither in school nor in employment. If the concern is to

withdraw children from all kinds of jobs and employment - whether hazardous or non-hazardous
- and to bring them into main stream of the human society through education, training and
rehabilitation we need to define child labour in a very different manner. One such definition is:
the children, who have not completed the age of fourteen, employed for wages or no wages in
occupations and employment, whether carried on by the employer or by the family or by self
(including a bonded child labour), that interfere with their childhood and education and are
injurious to their health and physical, intellectual, spiritual, moral and social development. Neera
Burra has divided child labour into four categories - those who work in factories, workshops and
mines, those who are bonded, street children and children who form part of the familial labour
force areas (Karlekar, 1999: 11). Gupta has classified the child labour into five types, Child
workers with their family; those working in home or cottage industry; those working in a factory
or factory type production unit, commuting daily to the work site; Child workers not staying with
their families; children sent by parents to work away from home (includes sold and bonded
children); children who run away from home; destitute children, who have no home or parents.
Children engaged in begging and prostitution are part of organised criminal exploitation of
children (Gupta. M.C, 1996:26).

Although the following table gives an estimation of the recorded child labour by census of India
1991, this is only a tip of the ice-berg, as several micro studies have proved the figures to be
much higher.
Child abuse includes sexual aggression, beatings as well as extracting hours of labour from
children who should be in school or at play. According to Laskar, 1999, child abuse can be
economic, physical or psychosocial. The most vulnerable children in the society, according to
him are the child labourers, street children, bonded children, child prostitutes, child refugees,
child soldiers, jailed children, unaccompanied children, orphans or beggars. In the domestic
scenario many children are exploited and this generally does not get focused. A large number of
children are forced to work in hazardous workshops or factories and are exposed to multiple
health hazards.

Since schooling is not compulsory for any age group in India, there are no restrictions on when
children can enter the labour force. Traditional Hindu notions of social rank and hierarchy are
subtly incorporated into the ways educated Indians distinguish between education for children of
those who do manual work than those who are in services, that is, middle class employment. The
National Human Rights Commission (NHRC) has itself felt revolted that officers consider it
necessary to permit a ‘small justice’ in the form of child labour to promote the interests of
earning foreign exchange in the export market. In fact the Government policy seems to promote
the employment of children. Small scale industries are legally permitted to use child labour
directly or to subcontract with the so called family owned workshops.
There is no statutory protection for children in factories which employ not more than 10 workers.
The government’s support to cottage industries and the small sector promotes the employment of
children in unregulated hazardous work. And through its centres for training children as weavers
in the carpet industry, the government competes with schools to attract children. Government
officials are frank in saying child labour helps sustain the otherwise uneconomic small industries
by keeping the cost down so that the carpet, gems and brass-ware industries can expand their
exports (Kuldip Nayar, 20th Dec 1997, The Hindu).
The child labourers are exposed to several kinds of physical hazards and even sexual harassment.

In the absence of any stricter laws or any provisions for compulsory primary school education,
less than half of India’s children in the age group of 6 to 14 do not attend school. Either they are
found at home caring for the cattle, collecting firewood, working in fields or engaged in cottage
industries, tea stalls, restaurants. Some even work in factories doing extremely hazardous jobs.
Some find employment as household workers in middle class homes. Some even end up as
prostitutes or bonded labourers. Unfortunately nothing worthwhile is being done to improve the
conditions of these children (Sardar Nayeem, Pioneer, 29th November 1997).
The Centre for Concern for Child Labour (CCFCL), a Delhi Based NGO, in a study has divided
the girl child in the domestic sector into two categories - one who did household tasks and the
other who was engaged in outdoor economic work. The study revealed that middle or upper

middle class families with small children preferred to employ young girls because, the help from
them, in that case not only came ‘cheap’ but was also considered safe. The study observed that
like all other women workers in the informal sector, the child domestic workers are subjected to
sword of false allegations (The Hindu 24th Oct, 1997). Working in inhuman conditions, often for
a pittance, children are abused at work and within homes where their earnings become the
property of the parents. Not unexpectedly, child labour has become an emotive issue resulting in
a sense of moral outrage in the international community and the boycott of products using any
form of labour. However banning child labour is a simplistic response to a much deeper problem,
which lies embedded in structures of power, availability of alternatives and schooling as well as
the overall immiseration of at least a third of the population. For those children who do not work
for wage but contribute to the family workforce, leisure, education and anything remotely
regarded as the rights of the child need to be defined keeping in mind the cultural specifications
of notions of childhood, play, learning and consequently exploitation and abuse (Karlekar, 1999:
11).
Dr Neera Burra argues that the general argument favouring child labour gets justified by poverty
or that children are put to work at a young age to learn the required skill or the traditional craft.
Further Dr Burra mentions that child labour gets justified in less hazardous workplaces but the
question is, what is the definition of hazardous? She quotes the example of a domestic servant in
Hyderabad who was beaten up mercilessly by his employers. A child may be working in a non-
hazardous environment, but might be subject to violence. The neighbour who saved him with the
help of a women’s organisation later got him enrolled in a school. Studies from Bidi industry
show that children are mortgaged for money; the Supreme Court Commission of 1983-84 on
children rescued from the carpet industry documented atrocities such as not allowing them to
urinate and being hung upside down and beaten for making errors in weaving.
State Development Corporation had come up with a scheme for young women who would be
taught weaving. However what has actually happened is that young girls instead of women were
employed under this State-funded programme, and that too at the cost of having left school.
These young girls are so young that they balance on their toes so as to reach the thread. They

would be on their toes for hours together. Possibility of sexual abuse also could not be ruled out
(Burra, 1995:16).
According to Choudhary, it is the poor life situations in families that bring children into labour
force.
Studies show that child labour is on the increase, particularly for those who work as marginal
workers. According to Choudhary, the increase of girls has been dramatic in both rural and urban
areas (Karlekar, 1999: 11).
According to Maxim Gorky, traditional factors may be a cause for child labour. School- based
education was meant for the privileged class. This tradition prevails even today among some
segments of the have-nots. Many are not aware of the disadvantages of non- schooling. The
children first join their parents to work and slowly get absorbed in the labour force.
Stronger than tradition, he says is the factor of chronic poverty which is responsible for the
prevalence and perpetuation of child labour. When disease, other forms of disability or
unemployment upset the balance of the family budget, there may not be an alternative except to
send the child to work. Poverty and child labour thus beget each other and tend to reinforce
themselves in families and communities.
The most important cause ,according to Chandra, is widespread of absolute poverty due to which
they are forced by the parents to seek employment. Disease and other contingencies may need
extra money and the employment of children is resorted to an easily accessible method to earn
money.
The problem of child labour is inter-related to the problem of the inadequate wage of adult
worker, which compels children to work, in return for compensation and the employer takes
advantage of this weakness by providing work to them on low wages (Chandra, 1997:41).
Associated with poverty is the existence of large families. Large families with comparatively less
income cannot give protected and encouraging childhood to their children. If a family is limited

and well planned, there would be no scope for sending their children to the labour market and the
children could be educated. Illiterate and innocent parents think just contrary to this. Thus, if
parents have a small family size, they can provide all facilities to their children which are
necessary for their mental, physical and social growth (Chandra, 1997:42).
According to Maxim Gorky, child labour and non-schooling has a significant linkage among the
poorer sections of population. According to him a child is willingly sent to school in the age
group 6 to 9 because at this stage he/she is more a nuisance at home than an asset, but as he/she
crosses this age limit, the positions reverse. The child can now work at home or earn something
outside. This is especially true of girls who have to assist the over-worked mother at home. In
many far-flung areas of the countryside, schooling facilities are scarce and inaccessible and
parents do not feel motivated to avail them for their children. Many children are forced to stay at
home as their parents cannot afford the prescribed minima of uniform, books and stationery.
Schooling is perceived as something that would deprive them of the income. Against the
backdrop of schooling, child labour thus has a double appeal; it saves the parents from spending
on child’s education, and is a reckonable source of income to the family. Educated
unemployment highlights the futility of education.
Gupta (1997) has mentioned disintegration of family as a cause of child labour. This could occur
due to separation, divorce or death. He also mentions the low status of women in the house as a
key factor of child labour. This is because she does not get the job or income she deserves, she is
under paid and badly exploited. A mother or elder sister will not like the child to work if she
earns enough to support the family or to supplement the family income (Gupta; 1997: 29)
According to Raj, the most common explanation for child labour is that parents are very poor
and cannot afford to send their child to school. In places where schooling is free, the explanation
given is that the family is so poor that they need the money every family member, including the
child, can earn. If child labour is stopped the family will become poorer. Many factory owners
who employ children argue, “why blame us? We do not force the children to come. It is the
parents who send their children willingly to work rather than to school since they need money”.
Child labour exists primarily because there are people willing to use children for a profit. A child
is paid much less than an adult worker and so is cheaper to the employer. Children are more

likely to be obedient and less likely to organise themselves into labour unions and create trouble
for the management. A child’s’ mind and body can be moulded for performing repetitive tasks.
According to Chandra, with the advent of industrialisation, the tendency among the employers to
have quick and more profits at low costs has increased. Hence, in every country there is
employment of children in large numbers in factories, who are paid very low wages, are
subjected to excessive hours to work, and are made to work in terrible conditions (Chandra,
1997, 42).
Some of the other reasons for child labour mentioned by Chandra is the absence of scheme for
family allowance. He says there is conspicuous absence of schemes for family allowance, as can
be given to family so that people may maintain an adequate standard and may not be forced to
send their children to the labour market. This type of scheme comes under the social security
measures which is in practice in many developed countries.
In addition to the above causes, Chandra (1997: 42) has also mentioned bleak employment
opportunities, lack of physical and mental fitness (due to malnutrition), sheer encouragement to
take up jobs instead of going to school, inadequate inspection mechanism to check child labour
and slow process of protective legislation as reasons of child labour.
Lal (1997: 58) has also mentioned migration as a cause for child labour. In search of job poor
rural parents migrate, which leave no scope for education of their children. In this process
parents face various problems like unemployment, under employment, lack of shelter, and so on,
which force the parents to send their children to work.
3.3 Institutionalised Abuse
Domestic Violence
Physical violence as well as explicit forms of aggression are used by the more powerful in the
household as methods to ensure obedience of the less powerful and therefore related to power
dynamics in a household. At every stage in the life cycle, the female body is both the objects of
desire and of control (Thapan 1997).

Domestic violence includes not only inter-spousal violence, but also violence perpetrated by
other family members. Generally, an important part of the power relationship between spouses
and their families relates to dowry and its ramifications (Karlekar, 1995).
There is a wide societal tolerance for wife-abuse, which is very often even considered justifiable
under certain circumstance: Disputes over dowries, a wife’s sexual infidelities, her neglect of
household duties, and her disobedience of her husband’s dictates are all considered legitimate
causes for wife-beating. It is only when the torture becomes unbearable or death appeared
imminent that most women appeared illing to speak out (Karlekar, 1995).
Glass defines domestic violence as “anything that is experienced as fearful, controlling and
threatening when used by those with power (invariably men) against those without power
(mainly women and children)” (Ravindran, 1991).
Domestic violence includes, harassment, maltreatment, brutality or cruelty and even the threat of
assault - intimidation. It includes physical injury, as well as “wilfully or knowingly placing or
attempting to place a spouse in fear of injury and compelling the spouse by force or threat to
engage in any conduct or act, sexual or otherwise, from which the spouse has a right to abstain”.
Confining or detaining the spouse against one’s will or damaging property are also considered as
acts of violence (Bedi K, 1999).
Domestic Violence in the Marital Relationship:
Ahuja (1998) and Visaria (1999) have recently conducted studies on ‘domestic violence’ within
marital relationship. The findings of their study have been discussed below.
Domestic violence has been defined as “ all actions by the family against one of its members that
threaten the life, body, psychological integrity or liberty of the member. (Anthony and Miller,
cited in Adriana Gomez, 1996)
In identifying factors leading to wife beating, both Visaria and Ahuja, in their survey, have tested
the co-relationship between wife beating and education. According to Visaria’s (1999) survey in

Gujarat, illiterate women face more violence than literate women. Relationship between abusive
behaviour and level of education has been found to be statistically significant (Visaria 1999:12).
Illiterate women and those with education up to primary level (class 4) tend to be more subjected
to violence as compared to those who had received education beyond the primary level.
However, one has to keep in mind that the percentage of literate women in Gujarat is overall
only between 20% to 50%. In one district, Banas Kantha in Kutch, the total percentage of literate
women is even lesser than 20%. In contrast a study by Ahuja (1998) shows that there is no
significant relationship between beating and educational level of the couple. Educated women
are beaten as much by their husbands as those who are illiterate or less educated. About one-
fourth of the batterers (24%) in Ahuja’s study were those who were moderately educated and
about one-fourth (26%) were highly educated. However, he added that men whose educational
attainment is low, are more likely to beat their wife than men who are better educated. Study
findings of Ahuja shows that although women of all ages are victims of wife-battering, a larger
number of victims (72%) are among those with an age difference of unto 10 years between
spouses. According to the survey findings of Visaria (1999), women who experience domestic
violence early in their marriage, continue to be subjected to it even with increase in age. His
findings point out that family structure, the presence or absence of children, and the size of the
family have little co-relation with wife battering (Ibid.:157). The study also points out that family
income, husband’s occupation and employment of women are not co-related with wife-
battering. According to survey findings of Visaria (1999) joint family tends to offer women some
protection or acts as a deterrent to husbands using physical force to subdue them.
The forms of violence commonly found by Ahuja (1998) were slapping, kicking, tearing hair,
pushing and pulling, hitting with an object, attempting to strangulate and threatening. Forms of
psychological abuse were also found to exist, for instance, verbal abuse, sarcastic remarks in the
presence of outsiders, imposing severe restrictions on freedom of movement, totally ignoring the
wife in decision-making processes, making frequent complaints against her to her parents,
friends, neighbours, and kin much to the embarrassment of the wife. Some of the reasons given
by the women were financial matters, behaviour with in-laws, back-biting, talking to any male

without the liking of the husband, asking for money, preventing him from drinking and husbands
personality traits.
Some of the worse forms of violence has been reported by Visaria in her study (1999), for
instance, beating with sticks or iron rod, knives, utensils, blades and ladles, throwing women
against objects or bashing their heads against the walls, burning of breasts and vagina. In
addition, sexual assaults in the form of both hitting women in the vagina by kicking or forcing
her into sexual intercourse were reported by nearly 10% of the women. Some of the women who
had become victim of this form of violence indicated that injury in their private parts cannot be
noticed by anyone and they would be too ashamed to talk about it to others. A couple of women
also hinted that men know that their wives cannot report such punishment even to their own
parents or seek medical treatment due to a sense of shame. Some of the reasons given by women,
in the survey done by Visaria is, meals not served properly, economic constraints, financial
matters, men wasting money at tea stalls, drinking of alcohol, men feeling that women are paying
less attention to the children and vis-à-vis, men feel women have a lot of free time and so on.
One of the main cause why domestic violence prevails and continues is the lack of alternatives
among the victims. Women and children may be economically dependent on abusers. Elderly
people and children may feel too powerless to escape. Language or cultural barriers may isolate
victims from seeking help.
Victims generally feel, it is better to suffer in silence than to be separated from loved ones. They
keep hoping for improvement, but it is normally observed that, without help, violence gets
worse.
Victims may also feel helpless, guilty or worthless. They may feel ashamed of the poor quality of
the relationship. Abusers may fear the consequences of seeking help, unaware that continuing as
before may be even more dangerous.
Family members may be unaware of the help that is available from the local agencies. They may
also be unaware of their legal rights.
In India we have no provision for protection of a complainant, not even under the Prevention of
Dowry Act. A woman who has complained of harassment goes back to the very people against

whom she has complained. What security can she possibly feel in such a situation, and how can
she continue to act on her complaint? She obviously continues to be victimised often paying the
ultimate price (Bedi K, 1999).
Many complainants are faced with eviction from the family home, are cut off without
maintenance, and are unable to follow the complaint precisely because they have no means to do
so.
Frequent, unexplained injuries, reluctance to seek medical treatment for injuries or denial of their
existence, fear in the presence of certain family member/s, social isolation, disorientation or
grogginess, especially in elders indicating misuse of medication and decline in physical
appearance and personal hygiene indicating increased isolation and a lack of desire to continue
living are some of the indicators of violence (Aravamudan G, 1995)
3.4 Trafficking in Women: Devadasi System, Sati, Dowry
Dowry Harassment and Bride Burning
Dowry is a transfer of property from the bride’s family to that of the bridegroom, at the time of
marriage (Negi,1997: 14). According to the present practice, dowry usually subsumes material
gifts and cash paid to the bridegroom and his kin. This practise continues even after marriage
(Paul; 1993). The dowry given at the time of marriage is not the only transaction as far as the
daughters marriage is concerned. There is a series of ceremonies associated with the girls in the
family. The practice of giving gifts to the husband’s family in cash and kind and rituals
connected with pregnancy, childbirth and ceremonies for piercing the ear of the girl and so on
(Negi; 1997: 15). The gifts are no longer a token of affection from parents to the daughter, but
instead an elaborate demand from the marital family (Negi; 1997: 16).
The commonest elements of dowry in India include gifts for the bride such as clothes, jewels and
other house-hold and luxury goods like a refrigerator and kitchen utensils and so on. These are
ideally treated as the bride’s streedan (wife’s property) and form the nucleus of the conjugal
estate. Dowry also includes gifts for the son-in-law and other luxury items like scooter, VCR,
VCP, and such other gifts for the bridegrooms’ parents and other relatives. Over and above, it

includes hard cash paid as contribution towards the marriage expenses. In some cases, dowry is
also paid as compensation for the expenditure incurred on the education and other training of the
groom. The bridegroom’s parents usually keep this money. Some state that this is kept by the
parents as security against the bridegroom staying separately after marriage.
According to Chatterji, the practice was a means of giving gifts to the daughter during the
marriage, so that the couple can start a life on their own and to compensate her share of the
property, as she is otherwise excluded from inheriting parental property (Chatterji; 1992: 7).
The Dowry Prohibition Act 1961 was amended in 1984, 1985 and 1986. Dowry deaths constitute
a special category of death that was for the first time defined in a section introduced into the
Indian Penal Code (IPC) In 1986, Section 304(B) stipulates that death of a woman within seven
years of her marriage by burns or bodily injury with evidence of cruelty or harassment by her
husband or his relatives in connection with a demand for dowry is ‘dowry death’ and punishable
with imprisonment for not less than seven years.
Three years prior to this, Section 498(A) was introduced in the IPC. This states that ‘any form of
cruelty, whether it is from a husband or the relative of a husband, to a woman is an offence that
is punishable with imprisonment up to three years’. Cruelty, as defined in this section, includes
‘any wilful conduct that could cause mental torture, physical injury, or drive the woman to
commit suicide, whether in connection with any unlawful demand for property or not’.
The first part of Chapter XVI of the IPC (Sections 299 to 311, which are offences affecting life)
can also be invoked in case of dowry death or suicide. Under sections 299, 300, 301 and 304(A),
culpable homicide, murder and death by negligence are crimes. Section 302 lays down
punishment for murder: death sentence or imprisonment for life. Sections 113(A) (presumption
as to abetment of suicide of a married woman) and 113(B) (presumption as to dowry death) were
added to the Indian Evidence Act and can be invoked in cases of dowry murder or suicide. The
Code of Criminal Procedure (mainly sections 174 and 175) lays down the procedure and
principles of investigation into a crime (Menon; 1999).
Despite a list of legislation protecting the rights of women, most importantly the prohibition of
giving and taking of dowry under the Dowry Prohibition Act 1961, women in India are tortured

physically and mentally and even killed or driven to suicide by their husbands and in-laws for
not bringing sufficient dowry.
Dowry related violence against married women by the families they marry into is a phenomenon
that is on the increase in the country. The following table gives an indication of the increase in
dowry related violence against women. However this data is only a tip of the iceberg, as most of
these cases do not get reported unless it reaches an extreme case of death.
In an investigation done by Vimochana, (a Bangalore based NGO), the category of dowry deaths
in a technical sense only include those cases that had been booked by the police under the
relevant sections of law. The accident cases that have been closed for want of evidence, however
are largely due to stove-bursts or kitchen accidents (Menon; 1999: 66). There are rarely any
eyewitnesses who are prepared to give evidence against the murderers as the crime is committed
within the four walls of a home and those who are present inside are those who are committing
the crime. According to Menon (1999), the large number of these deaths is an indication that the
law is not a sufficient deterrent for those who commit these crimes. The following are some of
the reasons why these gruesome murders are registered under accidents. There are pressures on
the woman to conceal the truth about the reality even if they are on the verge of dying. Her
husband’s family often threatens to harm her natal family or her children if she does not declare
that it was an accident. Relatives and family members of her natal family also sometimes remain
silent, as they fear the husband’s family. The victim’s dying declaration, which is supposed to be
taken in private by the policeman in the presence of a doctor, is invariably a public procedure.
While on one hand the family does not want to get involved in the time-staking and laborious
process of legal proceedings, on the other hand the police do not take interest to penetrate this

community resistance to look for evidence of what really could have happened (Menon,
1999:69).
According to Damodaran, exposure to the media has resulted in an increasing trend towards
consumerism. People cannot afford the luxuries that are thrust upon them through advertisements
targeted at the urban population. They see dowry as an avenue to fulfil their otherwise
impossible dreams (Negi; 1997: 15).
The interplay of pre-capitalist values and modern forces with the accentuation of the free market
economy and the consumer culture in the era of unequal development have thus become a part of
the complex and contradictory fabric of our present-day society. The traditional values of the
necessity of marrying a girl for spiritual merit and the modern system of calculation and other
considerations of the groom’s family in a milieu of inequality and insecurity have brought to the
surface a sense of competition and manipulation to the advantage of the bridegroom (Paul;
1993:37).
According to Paul the treatment of a daughter-in-law depends very much upon the quantum of
dowry she brings along with her before, during and after the marriage ceremony (Paul; 1986:
26). However there have been cases when the status of the girl’s parents has reduced after the
marriage, or there is a loss in the business and the girl is ill- treated in the husband’s house
thereafter. The dowry normally continues for many years after the marriage. Often, the dowry
brought by her is taken away after marriage. In times of financial problems in the husband’s
house, her jewellery and dowry items are normally the first to be sold.
For some people, paying dowry at their daughter’s marriage is an investment for fetching high
dowry through their son’s marriage. Some others, including women discuss on ‘marriage with
high dowry’, with pride. Generally, marriages with pomp and show is preferred. The girls too
think it is their right to take dowry with them when they go to the husband’s house. People
believe that the effective way of equipping women is to resort to dowry in arranging a marital
alliance. Another feeling among the mothers-in-law is that when she herself brought dowry from
her house at the time of her marriage, why shouldn’t she take dowry for her son. According to
Menon (1999), dowry related crime is motivated mainly by greed.

Sexual Harassment at Work
According to Mac Kinnons (1979) sexual harassment of working women is primarily a problem
faced by women, that men rarely face this problem and therefore it should be considered a form
of sex discrimination (Sikri, 1999: 128).
Sexual harassment as defined by the court stipulates:
• “Such unwelcome sexually determined behaviour (whether directly or by implication) as

physical contact and advances,
• A demand or request for sexual favours, sexually coloured remarks,
• Showing pornography and any other unwelcome physical, verbal or non verbal conduct
of sexual nature”.
Burt (1980) says “unwanted sexual overtures”, has the virtue of parsimony but necessarily
concerns intentions and motivation, not just overt behaviour. Defining sexual harassment as
unwanted sexual overtures has the same problem inherent in defining rape as unwanted sexual
relations. In practise the woman has to prove that the sexual relations or the sexual overtures
were unwanted (Sikri, 1999: 128). The male colleague will go out of the way to prove that the
woman is of loose character (Ibid. 40).
According to Quinn (1977) defining sexual harassment means setting boundaries on the term and
differentiating sexual harassment from expressions of sexual interest. Not all expressions of
sexuality in the workplace could possibly be called sexual harassment. Men and women do meet
dating partners and future spouses at work. Some people may even enjoy sexual jokes and
flirting that can be ego enhancing and enrich their fantasy life.
National Commission for Women has laid down the code of conduct at work place to prevent
sexual harassment of women, which has been sent to all Government offices, Ministries, and
Universities with the hope that employers would become more sensitive towards women. The

guidelines highlight that it shall be the duty of the employer to prevent or deter the commission
of any act of sexual harassment at workplace would include unwelcome sexually determined
behaviour by any person either individually or in association with other persons such as eve
teasing, unsavoury remarks, jokes causing embarrassment, innuendo and taunts, gender based
insults or sexist remarks and unwelcome sexual overtones in any manner, touching or brushing
against any part of the body, molestation or displaying pornographic or other derogatory pictures
or sayings (Hindu, Sept 16, 1998).
Recommendations to the National Commission for Women based on the view that the definition
of sexual harassment is deficient and that “sexual favours……sought by homosexual or lesbian
employers of the same sex” also be included (Hindu, April 26, 1998).
The Court places an obligation on employers in both the public and private sector to “take
appropriate steps to prevent sexual harassment” and “provide appropriate penalties” against the
offender. The criminal law should be resorted to where the behaviour amounts to a specific
offence under the Indian Penal Code. The Court also recommends that a complaint made by the
victim and that such a committee should be headed by a woman, and not less than half its
members should be women (Hindu, April 26, 1998). However this guidelines does not specify
any time limit for drafting the code.
The Court provides that the employer is responsible for drafting codes to prevent sexual
harassment in the workplace. If the power to evolve these codes is to be in the hands of the
employer, then given the conservative sexual climate in which we live, what is to prevent the
employer from producing a code that encourages gender segregation in the workplace. The codes
could be formulated so as to discourage gender interaction in the workplace, or encourage the
establishment of same sex schools and universities instead of co-educational institutions. Perhaps
more specific guidelines are required which provide that such sex segregation is not an
appropriate response for dealing with sexual harassment (Hindu, April 26, 1998).
In many cases, it has been found that the committees within the organisations were set up only
when there were serious allegations of sexual harassment. Many working women point out that,
even if there is an enquiry committee, does anyone really bother to find out what happens to the
victim when the enquiry is going on? She is an object of curiosity, sympathy, disdainful glances

or simply isolated by her colleagues. The situation at home is worse. Instead of sympathising
with her plight or standing by her, the attitude is one of distrust and suspicion or often
humiliation and shame (Sikri, 1999: 40). The work environment where sexual harassment occurs
has hierarchy, norms, rules and constraints that profoundly affect the way people behave in that
setting. In particular, the formal rules and informal norms of managers affect both the managers
and their subordinates. The top management has the power to influence the employee’s work
habits, style of dress, recreational interests and social behaviour. When the top management
tolerates or condones sexual harassment of employees, the standard reverberates throughout the
organisation (Sikri, 1999: 129)
Certain individuals use their positions of relative power to engage in sexual interactions. This
type of behaviour clearly constitutes sex discrimination (Hindu, April 26, 1998). Male ego
problems, sexual perversion, sexual obsession, widow-hood, pornographic materials and media
portrayal is said to be some of the reasons for their harassment.
Lawyers facing sexual harassment at work:
A survey conducted by Sakshi, a Delhi based NGO, in a few major cities reported that 65 per
cent of women lawyers interviewed were always or often subjected to, or had observed, verbal or
physical sexual harassment from other lawyers. The harassment would take various forms
according to the survey. They include use of stereo-typed role characterisation, sexual innuendo,
devaluation of women’s work, use of obscene or vulgar language, and comments on appearances
and character. The bar report narrates two incidents. In one case, a woman lawyer was openly
punched by a male colleague in the High Court premises for refusing to join him for a cup of
coffee. When she tried to report the incident, a senior member of the bar dissuaded the police
from registering it, on the ground that “it would tarnish the reputation of the Bar”. Forty-eight
per cent of the women lawyers surveyed also stated that they had heard or experienced remarks
or jokes that were demeaning to women (Rameshan G, Hindu, July 19, 1998).
In a survey done by National Commission for Women of 1200 women, nearly 50 per cent
complained of gender discrimination and physical and mental harassment at work. While 40 per
cent of the women said they “usually ignored” such provocation, 3.54 per cent said they reported

these to their supervisors, 7.8 per cent to their colleagues and 1.24 per cent to the police. About
10 per cent said that they protested against such behaviour while 9 per cent said they warned the
offenders. At least 20.17 per cent of the respondents said that no investigation was done on their
complaints while 1.5 per cent said police harassed them again instead of making the enquiry.
A majority of the respondents 84.97 % were not aware of the supreme court judgement given in
August 1997, for specific protection of women from sexual harassment at work (Bhatnagar.R.,
August 19, 1998)
Sale of Wife
In traditional farming communities, women helped in farming and bridegrooms paid a bride
price to her parents. In the past this used to be a token amount. If a widow or a married woman
chose to enter into a live-in relationship with another man, the latter in turn paid the first husband
the amount he had spent at the time of the marriage. This system has, in the last decade become
completely distorted with women being sold and resold for astronomical sums and the
panchayats and police turning a blind eye to these goings on. With the bride price sometimes
running into a lakh or more, ‘nata’ brokers have mushroomed around Kotah, Bundi, Deoli,
Ajmer and Tonk districts of Rajasthan,whose only job is to keep an eye on prospective women
and force them to enter into a nata because the local brokers earned a hefty commission out of
this deal. The kind of money at stake can be gauged from the fact that one of the fathers admits
to having spent Rs 62,000 in bringing her back.
Realising the selling and reselling of girls had reached rampant proportions, a Deoli based NGO,
‘Women’s Rights Committee Against Atrocity’ conducted a survey in Sandla and Bhanvarthala
villages in Tonk District of Rajasthan and came up with some disturbing conclusions. Of the 517
households surveyed, the survival rate of marriages in the backward classes during the last five
years was less than 50 per cent and in some cases as high as 70 per cent (Rashme Sehgal, The
Sunday Review, June 13th 1999, Pg 3).

Nata exits also in Rajgarh district of Madhya Pradesh. It is the practise of the sale of the women
to men in return for a handsome price. The largest beneficiary is the father of the girl who uses
her to gain a neat sum. Closely connected to the issue of sale and resale of women is the custom
of child marriage. Unless a boy is committed to child marriage, he cannot indulge in nata. Men
are prepared to pawn their goats, cows and buffaloes and in well-to-do households, even gold
and silver to get a woman. In all these transactions the woman is never in the picture - she
accepts the deal as part of her womanhood (Chandrasekhar, 1996).
Indira Pancholi, the Co-ordinator of the committee believes, “no household has remained
unaffected, there is an unsuccessful marriage in every household here.”
The Panchayats have turned a blind eye to this jostling around. They are accused more often than
not, of siding with the husbands and are blamed for pushing up the nata rates. The jhagda money
is decided upon in presence of the Panchayat with the amount being written on a document
called Kagli. “Husbands are selling their wives to get more money and the Panchayats are doing
nothing to protect these women”, points out the Jaipur based women’s rights activist, Kavita
Srivastava. She cites an instance of Lalibai, an anganwadi worker, who was harassed to enter
into a nata after her husband’s death. She refused and had to seek intervention of social activists
to escape harassment.
According to a Jaipur based DIG (CID), Sudhir Pratap Singh “ lack of education and total
ignorance of inheritance rights amongst women are the reasons why this practice has continued.”
Indira Pancholi, the Co-ordinator of the committee believes, “the inability of a bride to return to
her marital home would be a triggering factor, especially in cases of atta satta agreement where
two families exchange children in marriage when they are quite young. After marriage, the boy’s
family reciprocate by not sending their son to bring the bride. Entire villages are at war with each
other.” For instance, Simla Ram, from the village Nappa Ke Kheda of Rajasthan is facing
rejection from her college going husband who does not want an illiterate wife. Village custom
demands that the husband either comes down himself or sends someone to fetch her. Four years
into the marriage, Simla is still waiting to be escorted to her husband’s home. Simla is
completely against nata. She says she would like to settle down only with her husband.

Marriages in villages have come under pressure for other reasons as well. Dowry and modern
lifestyle demands, including incompatibility, are reasons cited for marital breakdowns and
consequently the sale of women.
Eve Teasing
Eve teasing is an act of terror that violates a woman’s body, space and self-respect. It is one of
the many ways through which a woman is systematically made to feel inferior, weak and afraid.
Whether it is an obscene word whispered into a woman’s ear; offensive remarks on her
appearance; an intrusive way of touching any part of a woman’s body; a gesture which is
perceived and intended to be vulgar: all these acts represent a violation of a woman’s person, her
bodily integrity. Eve teasing denies a woman’s fundamentalright to move freely and carry herself
with dignity, solely on the basis of her sex (Hindu, August 2, 1998).
Some acts of eve-teasing mentioned by girl students interviewed are; indecent remarks, singing
obscene songs, hitting, touching or pinching in crowded places, snatching dupatta and in some
cases even forced kissing, mailing anonymous love letters and exhibiting male genital in front of
women. (Ashraf, 1997 : 89).
Eve teasing by itself is not an offence under any law, but Sections 294 and 349 of the Indian
Penal Code cover substance of eve teasing. Sections 294 punishes “whoever, to the annoyance of
others (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene
song, ballads or words in or near any public place” is liable to be punished with imprisonment or
with fine. The section is very wide in nature and a person can be hauled up even if the acts
forming part of the substance of the offence are addressed to the public at large, provided this
cause annoyance. Clearly a girl or a woman who feels annoyed by any obscene song or words
can take recourse to the provision of the section and put up a complaint before a police station.
The offence is cognisable, i.e. a police officer can arrest the offender without a warrant but it is
bailable (Ashraf;1997)

A graver form of eve teasing is accompanied by the use of gesture indicating threat or use of
force. ‘Criminal force’ has been defined under Section 349 of Indian Penal Code. According to
this section ‘a person is said to use force to another if he causes motion, change or cessation of
motion to that other person’. In such a case also, action can be taken against the person using it.
The punishment is such cases are imprisonment for two years or fine or both. The offence is
cognisable. Thus, simple eve teasing accompanied with gesture to use force are punishable under
the existing provisions of the Indian Penal Code. (Ashraf; 1997: 89).
A graver form of eve teasing is accompanied by the use of gesture indicating threat or use of
force. In such a case also, action can be taken against the person using it
Stereotypically, men are conceived of as natural prey to uncontrollable lust. Women therefore
have to protect themselves at any costs. In an ironic twist of responsibility, women then bear the
burden of guilt for an act of violence against themselves. This is the basis for the second typical
response to a violation of women’s bodily integrity: to exhort women to censor their movements
and appearance.
Another misconception believes that men who abuse women are rowdy lower class elements. In
fact, men who violate a woman’s space and body do not belong to any particular social group or
class. Eve teasers are there in the family, the neighbourhood, in one’s classroom and place of
work.
What is perceived as male lust in our culture represents a desperate and frantic inability to
communicate with women. This inability often translates into acts that hurt and terrorise.
Consider the fact that popular representations of romance, as in film, clearly link up eve teasing
to love. This not only naturalises abuse as love, but also legitimises male power over women. In
the larger cultural context the man - woman relationships is simply not open to free, unfettered
discussions of romance and sexuality. In such a context, communication between the sexes
necessarily suffers.
There is an influence of the cinema and cheap literature in which sex permeates. The current
advertisements trying to promote sale of under garments, towels bed-sheets, etc. by indecently

exposing the female anatomy also lead to degeneration of women as a commercial commodity in
the mind of man.
There is a rush to the urban area in search of adventure and employment. Away from the
restraining influence of the families, the youngsters look for excitement and thrills which they
seem to get in acts of eve teasing. Infliction of pain on the eve acts as a stimulant to their sex
desires (Hindu; 1998).
There is also a lack of fear of punishment or adverse publicity or social disgrace. The police with
its insufficient strength and preoccupation with other problems of law and order and courts with
their proverbial delays and intricate legal procedures fail to bring most of the perpetrators to
book (Ashraf, 1997: 93).
There are no particular places where eve teasers congregate. In this sense, no place is really
“safe” and inviolate for women. Roads, buses, train, cinema halls, parks, beaches, even a
woman’s home and neighbourhood may be sites where her self-worth is abused. It does not
matter if a woman is alone, with a friend, in a group, or sometimes even with another man.
Segregating the spaces that men and women occupy only compounds, not solves the problem
(Hindu; 1998).
VIOLENCE AGAINST THE OLD
Singh (1998) defines elder abuse as ‘harm to an elder person caused by someone in a position of
trust, who may have control over the victim. This includes material abuse such as financial
exploitation, physical abuse, such as pushing, physical assault, psychological abuse, such as
chronically threatening, swearing at or insulting the older person, and neglect or failing to
provide necessary help such as meal preparation, housework or personal care.
In the past few years, the aged have frequently been the target of gang robberies or brutal killing
by servants or outsiders (Mitu; 1998). Old are attacked frequently due to their inability to put up
a fight. Elders normally have to face up to the facts that, their energy and authority is eroding. To
add to their woe is the death of any one of the spouse.

Widows have to be dealt with specifically, as the death of a spouse for a woman in any age is a
tragedy in itself, because of the norms and tradition and the manner in which she is treated after
the death of her husband.
Violence against Widows
Closely linked with Sati and harassment of widows, is the custom of child marriage producing
number of child widows, but not child widowers. Widow remarriage is not common and not
sanctioned by society, however men were allowed to remarry. Sati idealised as sitting on the
funeral pyre of the deceased husband; and those widows who did not go through this had to
make themselves physically unattractive and absent from public functions. Widows are called
inauspicious and are avoided, whenever possible (Lopataz, 1987: 13). Sati according to Giri
(1999), was recommended after 500 AD in the dharmashastras and spread across the country
around 1000 AD.
There are three kinds of widows. One is a young girl with no children, a woman who becomes a
widow after some years of marital span and has children. The third is case of a woman who is
widow of 50 years and above of age (Ahuja, 1996: 84).
Giri (1999) mentions three options for a widow woman according to orthodox tradition;
(i) sati, (ii) ascetic widowhood or, (iii) remarriage. Widows are expected to lead an ascetic life by
the society with restrictive codes of dress, diet and demeanour and of social ostracism from the
religious and social life of the community. She is expected to remain in perpetual mourning, and
give up eating ‘spicy food’, in order to cool her sexual energy, and remain celibate, devout and
loyal to her husband’s memory (Giri; 1999).
According to Dreze J. (1995) the well being of widow is not just a question of economic
security, but also one of dignity, self-respect and participation in society. Many widows in the
Chen sample suffered from different forms of social isolation, psychological abuse or emotional
distress. According to Dreze J. (1995), the social marginalised of widows was frequently found
to take one or more of the following forms:

Rumours and accusations: Widows are often accused of being responsible for their husband’s
deaths, regarded as sexually threatening, and generally considered as inauspicious by the society
(Dreze; 1995: 2443). Widows are also accused often of immoral realtions (Srivastava; 1999)
Enforced dress and behaviour codes : Many widows are under strong pressure to observe
restriction in codes of dress, appearance and behaviour. Some of the traditional restrictions (eg,
shaving of head) have become quite rare, even among the upper castes, but others (eg, not
wearing ‘bindi’ or kumkum) remain widespread.
Social ostracism: A widow is often excluded from the religious and social life of the community,
due to her perceived in auspiciousness.
Physical violence: violence against widows primarily takes the form of sexual harassment
(young widows being considered as sexually vulnerable and/or promiscuous) or property related
violence (because widows are seen as unwanted claimants on ancestral, property). Emotional
harassment: Sarcastic remarks in the presence of others, verbal abuse, beating and illtreatment of
her children are some of the forms of emotional harassment. There have also been reports of
houseowners sexually abusing widows who are living alone and cannot pay rent. (Basu; 1999)
Not all widows, according to Dreze J. (1995) face these type of mistreatment. Many older
widows who live with their sons (and their families) enjoy their respect and love. Some older
widows are happily integrated in their daughters households. If is young widows who are most
vulnerable to mistreatment, unless they have the support of their parents or brother. (Dreze, et al,
1995: 2443).

Percentage of total widows to total female population is 6.5 for women and 1.94 for men. The
percentage of women widows is much more than men from age group 40 onwards to 80+. The
highest male female difference (47.81%) is in the age group 70 to 74, where the percentage of
female widows is 66.51 and male widows is 18.70%.
Some of the essential factors that account for high levels of deprivation among Indian widows
include limited freedom to remarry, insecure property rights, social restrictions, on living
arrangements, restricted employment opportunities and lack of social support. (Chen & Dreze,
1995: 2438).

Patrilocal Residence: The system of patrilocal residence, which has the effect of isolating
women, is a fundamental source of gender inequalities in many parts of rural India and also plays
a crucial part in the deprivation of widows. Patrilocality in the narrow sense refers to the norm,
prevalent in most Hindu communities of India, according to which a woman has to leave her
parents home at the time of marriage to join her husband in his home. In a broader sense,
especially in most Hindu communities of North India where marriage rules dictate marriage
outside the clan and village. If could also result in drastic alienation from her parental family.
(Chen, et al, 1995:2435).
In North India, widows are expected to remain in their husband’s village, and most of them do
so. At the same time they are unlikely to receive much support from their in- laws. On the
contrary, the relationship between a widow and her in-laws is typically quite tense (property
rights being one of the most common sources of tension). Widows are thus denied both the
freedom to leave their husband’s village, and the support they need to live there happily. (Dreze
& Sen, 1996:174).
Limited freedom to remarry, in some communities, particularly in northwest India, ascriptive

leviratic unions (e.g. between a widow and her brother-in-law) remain quite common. Elsewhere,
the standard pattern is that most childless widows remarry, but only a small proportion of
widowed mothers does so (Dreze & Sen, 1996:174).
Out of 562 respondents in the Chenix sample of widows. 510 women had lost their husbands and
did not remarry; 35 women, who had lost their husbands, remarried and then became widowed
again by losing their second husbands, and 17 women who had lost their husbands, remarried,
and were still married at the time of the survey.
In the Chen sample of 562 ever-widowed women, 13% in North India had remarried compared
with only 6% in South India. The lower probability of remarriage in South is due in part to the
practice of levirate in the North. The issue of remarriage, according to Srivastava (1999), is
linked to property issue. Widow remarriage is not allowed so that part of the property does not
pass into another family’s hands. Some section of the population encourage leviratic
relationships (where the widow marries the brother of her deceased husband), to ensure that the
property stays with the family. In cases where she gets into a ‘nata’ (live-in relationship with

another man), the relationship is formalised by the village community and she loses right to her
first husband’s property. She has a lower status in a ‘nata’ than a remarriage.
Employment restrictions: Aside from these general restrictions, widows face specific difficulties
in seeking gainful employment opportunities. These include: lack of access to indivisible
productive assets owned by the deceased husband’s family (e.g. wells, ploughs and bullocks):
weak bargaining power vis-à-vis male partners in economic transactions, frequent absence of a
literate member in the household: limited access to institutional credit, and, particularly in the
case of widows with young children, the burden of domestic work (Chen and Dreze, 1995:
2442).
Social restriction of living arrangements: One of the clearest and most important findings of
Chen’s and other studies is the overwhelming dependence of widows on themselves and their
own sons. The proportion of widows who live in households headed either themselves or by one
of their sons are well over 85% in the Chen sample. The proportion of widows who live in a
household headed by a brother-in-law or parent-in-law is below 3% and the number of widows
who live in a household headed by a brother of the father is also below 3% (Chen and Dreze,
1995: 2442).
Legal inheritance rights: Formally according to contemporary Indian law, a widow has an
unequivocal right to a share of her husband’s property, including his land. This is in addition to
the legal rights she has irrespective of her marital status to a share of her parents’ property. Field
studies, however, indicate that these legal rights are comprehensively violated, and that a large
majority of widows have very limited and insecure property rights. This deprivation of property
rights not only represents the loss of a potential source of independent income, but also
diminishes the bargaining power of a widow vis-à-vis her in-laws, sons and other potential
supporters (Dreze & Sen, 1996:174).
Modernisation: Singh (1998) has mentioned urbanisation and modernisation and consequently
the erosion of the traditional form of care of the elderly people, which was prevalent in India like
joint family. There is an emotional estrangement between the young and the old in nuclear
family.

Lack of loyal servants: Even if the old has money to fend for themselves, many are unable to do
so due to the lack of loyal domestic servants (Singh 1998).
Indicators: Some of the other indicators of violence against the old and widow could be
symptoms of withdrawal. Mental deterioration, cessation of activities, felling of inferiority,
inadequacy and frustration.
Old and widows are victimised by relatives, informal care providers, house-owners, friends or
formal care-givers in institutional settings. They are abused almost by anybody who has power
over them.
3.5 Rights of Transgender LGBT: Changing Discourse
Since the colonial era, laws criminalising same-sex conduct as well as gender expression have
sought to curb the right of lesbian, gay, bisexual, transgender (LGBT) persons to freedom.
However, recent times have seen a more powerful use of the constitutional framework to
articulate, contrary to the criminal law, the rights of LGBT persons to freedom. A battle is now
taking place between the old criminal law frameworks which shackle LGBT lives and the new
constitutional interpretations which seek to confirm the inherent dignity to which LGBT persons
are entitled. The rights of these individuals now stand precariously poised between empathy and
contempt.
This chapter will map this oscillation between empathy and contempt by discussing five
emblematic cases. Two of them encompass the situation of LGBT people in colonial India, and
the remaining three pertain to the contemporary era. They span the period between 1884 and
2014, and the stories hidden within their interstices tell us how the law confines LGBT people in
terrifying and tragic ways but also how they challenge those confines in inspiring ways.
Two cases (Queen Empress v. Khairati and Nowshirwan v. Emperor), which date from India’s
colonial history, presage patterns of persecution of LGBT persons in present-day India in
important ways. They speak to Khairati’s and Nowshirwan’s aspirations for a better world in
terms of the freedoms they sought, but which were denied by the law. The three contemporary
cases (Naz Foundation v. NCT Delhi; Suresh Kumar Koushal v. Naz Foundation; and National

Legal Services Authority v. Union of India) are relatively well known and embody the politics of
hope for a better future as well as its betrayal.
Khairati and the question of gender identity
The decision of Queen Empress v. Khairati in 1884 is the first reported case of the use of Section
377 against a person described by the court as a ‘eunuch.’ The ironically named Justice Straight
was called upon to adjudicate whether a person who was arrested by the police on grounds of
habitually wearing women’s clothes had committed the offence under Section 377. The medical
examination of Khairati, according to the judicial record, showed that Khairati had ‘syphilis and
exhibited signs of a habitual sodomite, had indeed committed the offence of sodomy’. The
sessions court judge noted:
The man is not a eunuch in the literal sense, but he was called for by the police when on a visit to
his village, and was found singing dressed as a woman among the women of a certain family.
Having been subjected to examination by the Civil Surgeon … he is shown to have the
characteristic mark of a habitual catamite – the distortion of the orifice of the anus into the shape
of a trumpet and also to be affected with syphilis in the same region in a manner which distinctly
points to unnatural intercourse within the last few months.
Justice Straight decided that while he ‘appreciate[d] the desire of the authorities at Moradabad to
check these disgusting practices’, he was unable to convict Khairati, as ‘neither the individual
with whom the offence was committed, nor the time of committal nor the place is ascertainable’.
Although Khairati was acquitted in the end, the key point to note is the violence to which she
was subjected during the entire legal and police process.
One should note the gratuitous violence of arresting a person merely because their gender does
not match their biological sex. It can be conjectured that the arrest itself would not have been
made with courtesy and civility as Khairati was considered to be a person engaged in what
Justice Straight called ‘disgusting practices’. This effectively put her outside the ‘human pale’,
and one can only imagine the nature of the arrest. After it, she was subjected to an anal

examination by the civil surgeon. The violation of bodily integrity and assault on her dignity
emerges vividly.
All in all, the figures of authority were complicit in weaving a discourse based upon an attitude
of disgust towards Khairati, who transgressed the norms of gender and sexuality. The civil
surgeon’s anal examination found that the shape of the anus indicated that sodomy had been
committed. The district authorities of Moradabad found the practice of singing dressed as a
woman sufficient to arrest Khairati, and Justice Straight, though he acquitted her, supported the
authorities’ desire to ‘check these disgusting practices’. The silence in the judgment is the voice
of Khairati herself. It can be inferred that Khairati, though born a man, identified as a woman and
lived her life as one. The fact that she never denied having ‘dressed and ornamentated as a
woman’ can be interpreted as an indication of how important her chosen gender was to her. In
spite of the fact that Khairati had been arrested, subjected to an anal examination, and found not
to be a eunuch but to possess male genitals, her chosen identity survived all her tormentors’
efforts to criminalise what to her must have appeared ‘natural’. It was her gender transgression
that implicated Khairati as a potential criminal under Section 377, a reality that she never denied
but continued to stubbornly own. Her insistence on her chosen gender gave Khairati a dignity
that was difficult to obliterate.
Khairati’s case points to the fact that the person of transgressive gender is largely absent in the
colonial legal record. The fragment that records Khairati’s travails speaks to the question of a
larger absence from history of the lives and stories of those who were persecuted on grounds of
their gender identity. Khairati’s story also points to the work to be done to find and tell the story
of how the law in colonial India was used for persecution based on gender identity.
Nowshirwan v. Emperor: calling a new world into being
In a 1935 decision from Sind, a province of Pakistan, Nowshirwan Irani, a young Irani
shopkeeper, was charged with having committed an offence under Section 377 with a youth aged
about 18 called Ratansi. The prosecution story was that Ratansi visited the appellant’s hotel and
had tea there. Nowshirwan asked Ratansi why he had not come to the hotel for a while, and was
told that Ratansi had had no occasion to do so. The latter then went to the pier to take a boat, but
on finding he had no money, came back to Masjid Street, where he saw Nowshirwan standing on

the road a short distance from the hotel. Nowshirwan asked Ratansi to come to his house, and
when he did, he locked the door and started taking liberties with the young man, who did not
welcome the overtures and wanted to leave. Nowshirwan removed his trousers, loosened
Ratansi’s trousers, and made the youth sit on top of his organ. Ratansi got up from his lap, but
not before Nowshirwan had spent himself, wiped his organ and put on his pants. The reason this
incident came to light was that Solomon, a police officer, and his friend Gulubuddin saw the
incident through the keyhole, marched in, and took Ratansi and Nowshirwan to the police
station. The judge was not convinced by the prosecution story that Nowshirwan had forced
Ratansi to have carnal intercourse. He believed Ratansi had been made to pose as a complainant
and as a result made hopelessly discrepant statements. The judge was not prepared to rely on the
evidence of the eyewitnesses, Solomon and Gulubuddin, whose conduct he found strange.
Further, the medical evidence could prove neither forcible sexual intercourse (the prosecution
story) nor an attempt to commit the act of sodomy. In the judge’s opinion, ‘as the appellant had
not even if we take the worst view against him gone beyond a certain stage of lascivious
companionship, I do not think he deserves to be convicted for any of the offences with which he
was charged or could have been charged’.
The story of Nowshirwan and Ratansi seems to be one of sexual desire acting itself out between
two men of different class backgrounds. The limited material present in the appellate decision
gives us a clue that even the judge was convinced the nature of the relationship was consensual.
As the judge noted: ‘Moreover the medical evidence militates against the story of a forcible
connection on the cot [and] the appellant who is a fairly hefty young man having intercourse in
the manner stated originally. There is not the slightest symptom of violence on the hind part of
the lad.’ He concluded: ‘If he was in the house of the accused behind locked doors, I have not the
slightest hesitation in believing that he had gone there voluntarily’.
The story of desire secreted within the judicial narrative seems to be that Nowshirwan and
Ratansi knew each other and that the former made the first move on that fateful day. He asked
Ratansi why he had not come to the hotel for some time. Ratansi left after finishing his tea, only
to come back in the same direction. When he returned, Nowshirwan was waiting on the road and
asked him to come to his house. They seemed to have some sort of prearranged code by which
they signalled to each other the desire to meet, and subsequently they went to Nowshirwan’s

room. However, owing to the misfortune of their liaison having been witnessed by an over-
zealous policeman or a policeman with a grudge, what should have been an intimate act between
two consenting parties in their bedroom became a public scandal.
The prosecution sought to twist a consenting act between two men into a story of Ratansi being
forced to have sex with Nowshirwan. The former was coerced by those around him into posing
as a complainant against the very person with whom he had earlier had a consenting sexual
relationship. The fact that it was consenting did nothing to exculpate Ratansi from becoming a
victim of judicial ire. Indeed, the judge reserved particular fury for him.
In the judge’s words, Ratansi ‘appears to be a despicable specimen of humanity. On his own
admission he is addicted to the vice of a catamite. The doctor who has examined him is of the
opinion that the lad must have been used frequently for unnatural carnal intercourse.’ In the
course of appreciating the medical evidence, the judge noted: ‘There was not the slightest
symptom of violence on the hind part of the lad’. Thus, the story of an encounter between two
people of the same sex who desired each other, was reduced in the judicial reading to an act of a
perverse failed sexual connection. The use of terms like ‘animal-like’ and ‘despicable’ placed the
sexual act within the framework of moral abhorrence. One has to read between the lines of the
judicial text to hazard a guess as to the nature of the intimacy between Nowshirwan and Ratansi.
The two knew each other and had possibly met before in Nowshirwan’s room, which might
possibly have been a space where the coercive heterosexism of the outside world could be
forgotten for the brief time that they spent with each other. That short interlude might have been
a moment when they imagined a world not yet born and a time yet to come, when their desire
would be accepted without a murmur. This imaginative realm of impossible desires was what
was rudely interrupted when the policeman, Solomon, spied through the keyhole.
It can be surmised that Solomon had noticed their previous meetings, hence he was on the alert
to take action on that eventful day in Sind in 1935. Solomon stands for the compulsory
heterosexism of the larger world or what Oscar Wilde would have called the ‘unnatural virtue’ in
which the world abounds, which will give no space for the expression of any intimacy that
challenges its own laws. It was this fragile experiment of creating a ‘little community of love’
(Liang and Narrain, 2009), outside the bounds of law’s strictures and societal norms, that society
was attacking via Solomon, giving it the judicial imprimatur of a ‘failed sexual connection’. The

tragic story of Nowshirwan and Ratansi speaks to the absence of a certain vocabulary. The
language of love and intimacy, longing and desire, and the expression of spontaneous bodily
affection, find no safe habitation within the terms of the law which degrades such experimental
creation of new forms of intimacy. Its language has an impoverishing effect as it strips the
physical act of the rich emotional connotations of human intimacy and reduces it to a ‘perverse
failed sexual connection’. By stripping the act of sex of its multiple meanings, it produces
Nowshirwan as a subject of the criminal law.
One could look at Nowshirwan and Ratansi as being unwitting frontiersmen in the history of the
battle against Section 377 and as being among its first recorded tragic victims. In another
register, Nowshirwan and Ratansi stand in for Oscar Wilde and Lord Alfred Douglas, with
Ratansi not just forced to become a witness against Nowshirwan but also to deny a part of his
own being in terms of his role in creating that ‘little community of love’. Just as Oscar Wilde
was betrayed by Alfred Douglas, who described his lover as ‘the greatest force for evil that has
appeared in Europe during the last three hundred and fifty years’ (Murray, 2000, p. 221), so too
was Nowshirwan, in his hour of greatest need, betrayed by Ratansi who became the complainant
against him. Their story exemplifies the perversities of a law that turns lover against lover and
converts an act of intimacy into the crime of carnal intercourse.
Nowshirwan’s story remains emblematic of the ethical and moral poverty of the judicial
discourse, even though it grappled with homosexual expression for more than 158 years. It is
important to note that despite the Indian Constitution coming into force with the language of
equality, non- discrimination and dignity, the judiciary in the postcolonial era continued to
characterise homosexuality with terms such as ‘unnatural’, ‘perversity of mind’ and ‘immoral’.
The ethical language of dignity and rights was never perceived as applying to LGBT persons
(see Narrain, 2008).
Naz Foundation v. NCT Delhi, 160 Delhi Law Times, 277.: the promise of hope
The first time the judiciary moved outside the range of responses outlined above was 158 years
after the Indian Penal Code came into force and 59 years after the Indian Constitution did so. The
social context pertaining in the late 1990s and the beginning of the new century differed
dramatically from the one that existed at the time of Nowshirwan’s persecution. The norms that

straitjacketed Nowshirwan and Ratansi from expressing their sexual identity, and the law that
deemed the former a criminal, were beginning to be questioned. This practice of questioning the
set ways of the heterosexist world began with the queer struggle’s emergence with its insistence
on problematising norms of gender and sexuality. It is this context of an emerging LGBT
community − one that simply did not exist in Nowshirwan’s and Ratansi’s day − that underpins
any present-day engagement with Section 377. In simple terms, when people like Nowshirwan
have been arrested under the law in recent times, people beyond the family and friend network
have got involved. Queer people across the country rally together and begin to support those who
are subjected to the law’s persecution. Thus, any story about those who are arrested under
Section 377, be it the arrest of gay men in Lucknow (2006) or the arrest of HIV/AIDS workers in
Lucknow (2001), become part of a contemporary history of struggle against Section 377. This
stands in stark contrast to the persecution of frontiersmen in earlier struggles against it, such as
Nowshirwan and Ratansi.
The bringing together of the stories of Nowshirwan and Ratansi, and those persecuted under the
law in contemporary times, has culminated in a legal challenge to that very same law. The
Lawyers Collective filed a petition challenging Section 377 on behalf of the Naz Foundation
before the Delhi High Court in 2001. It challenged the constitutional validity of Section 377, and
made an argument for it to exclude the criminalisation of same-sex acts between consenting
adults in private. In technical terms, the petition asked for the statute to be ‘read down’ to
exclude the criminalisation of same-sex acts between consenting adults in private, limiting the
use of Section 377 to cases of child sexual abuse.
The important shift that had been made, as compared with the colonial period, was the use of the
fundamental rights chapter to test the constitutional validity of the law. In particular, the petition
argued that Section 377 violated the right to equality, the right to privacy and dignity, and the
right to expression.
The petition itself, though filed by a single non-governmental organisation (NGO), gradually
began to represent the entire community. The Lawyers Collective and the Naz Foundation began
this process of making a ‘public interest litigation’ truly ‘public’ by hosting a series of meetings
dealing with different stages of the petition. Over the next seven years, this process of continuous
consultation with the community contributed towards Section 377 becoming a more politicised

issue, a process that in turn led to Voices Against 377, a Delhi-based coalition of NGOs working
for the rights of LGBT persons, women and children, filing an intervention. The petition’s key
stages included the affidavit filed by the Union of India (home ministry), which indicated that the
government would stand by the law; the affidavit filed by the National AIDS Control
Organization (NACO), which in effect said that Section 377 impeded HIV/AIDS efforts; and the
impleadment of Joint Action Kannur (JACK, an organisation denying that HIV causes AIDS)
and of B.P. Singhal (a former Bharatiya Janata Party (BJP) Member of Parliament, who
represented the opinion of the Hindu right wing that homosexuality was against Indian culture).
Completely new was the chance to challenge the law under which Khairati and Nowshirwan had
been prosecuted. The challenge could now be posed in terms of the Indian Constitution, which
came into force in 1950, on the basis that the law violates the fundamental rights of LGBT
citizens. Even though it is now possible to mount such a challenge, India, especially in the post-
liberalisation era, has not been a hospitable space in recent times, and is certainly not a final
refuge for those characterised by the Supreme Court as the ‘oppressed and the bewildered’. In
fact, the Supreme Court has been positively hostile to a whole range of applicants, right from
slum dwellers to all sections of organised labour (see Suresh and Narrain, 2015). So it was with
trepidation that queer activists awaited the hearing. How would the judges understand the
complex issue of sexuality and rights? How indeed would we be able to persuade them that this
was a rights issue?
The judiciary has generally been subject to analysis in terms of the reasoned argument and the
decided case. In contrast, little attention has been paid to the gamut of other kinds of responses
by judges day-to-day in the courts: their questions, their expressions, the tone of their comments,
their personal reactions. As Lawrence Liang (2007) noted:
Witnessing the courts functioning on a day-to-day basis also allows you to uncover another
secret archive, an archive of humiliation and power. It is said that seventy per cent of our
communication is non-verbal and this must be true of legal communication as well. The secret
archive that interests me consists not of well-reasoned judgments or even the unreasonable
admonishment of the courts, but the various symbolic signs and gestures that accompany them.
An incomplete index of the archive includes the stare, the smirk, the haughty laugh, the raised

eyebrow, the indifferent yawn, the disdainful smile and the patronising nod amongst many
others.
In this secret archive of what Liang correctly characterises as ‘humiliation and power’, another
category of responses emerged almost as a complete surprise. These can be characterised as
representing the quality of judicial empathy. The questions and comments of the judges in the
Naz case revealed not the intention to humiliate but instead a strong sense of their empathy for
the suffering of LGBT persons. Chief Justice Shah communicated this empathy in ample
measure and took judicial notice of the social discourse of homophobia by saying that we all
know the kind of sneers and mockery this issue attracts in society. To substantiate this point, he
narrated the moving instance of a boy mocked for his sexuality and thus unable to take his exam.
It was in this context of harassment that the boy approached the court for a chance to do his
exam again (Narrain and Eldridge, 2009, p. 49).
During the hearings the judges displayed sensitivity, not only to instances of brutal violence but
equally to the more subtle language of discrimination.
This created a magical space for the brief duration of the court proceedings. Lesbian, gay,
bisexual and transgender persons, who were so used to the sneers and jeers of society, suddenly
felt that they were not only being heard but also respected. Simply through the art of empathetic
listening the judges restored dignity to a section of society upon whom the government seemed
intent on pouring nothing but contempt and scorn. The judges involved in the hearings did
something unique. They spoke about sex without a sneer, and for the first time in the recorded
judicial history of India homosexual sex was discussed within a context of intimacy, love,
affection and longing. That discourse became part of the judicial register and displaced the
relentless focus on the stripped down homosexual act as a threat to civilisation at its very roots.
The conflation of homosexuality with excess, through the focus on group sex, was challenged by
the nature of judicial questioning, and the discourse about homosexuality was linked to contexts
of emotion and feeling. A new path was being forged in learning to talk about the intimacy that
Nowshirwan and Ratansi shared, within the terms of the law. For the first time, it seemed
possible to see Nowshirwan and Ratansi and many others like them in terms other than the
basely carnal, and for opening up that possibility, one should credit the empathetic listening
demonstrated by Chief Justice Shah and Justice Muralidhar.

In such circumstances, the Naz judgment could well have been justified in making the argument
for the decriminalisation of homosexuality, based on Hart’s (1967) position that it was not the
law’s business to regulate a zone of private morality. Such an understanding would have been
sufficient to achieve the result of reading down Section 377 to exclude consensual sex between
adults from the ambit of criminalisation. However, the judges chose to tread a more ambitious
path. They began their written decision by referencing Dr Ambedkar, who in the Constituent
Assembly had noted: ‘Constitutional morality is not a natural sentiment. It has to be cultivated.
We must realise that our people have yet to learn it. Democracy in India is only a top dressing on
an Indian soil which is essentially undemocratic.They continued:
Popular morality or public disapproval of certain acts is not a valid justification for restriction of
the fundamental rights under Article 21. Popular morality, as distinct from a constitutional
morality derived from constitutional values, is based on shifting and subjective notions of right
and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it
must be ‘constitutional’ morality and not public morality.
In addition: ‘Moral indignation, howsoever strong, is not a valid basis for overriding individuals’
fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must
outweigh the argument of public morality, even if it be the majoritarian view.
What the judges did, by articulating the notion of constitutional morality, was to change the
terms within which the judiciary considered homosexual expression. From the first tentative
steps when Hart, as well as the famous Wolfenden Committee Report, had made space within the
law for ‘private immorality’, now homosexual expression was to be seen as not just something
that has to be ‘tolerated’, but rather as something that needs to be protected. This is because
protecting the expression of homosexuality goes to the heart of the meaning of the freedoms
guaranteed under the Indian Constitution. In a reversal of the terms of the debate, it became
‘moral’ to protect LGBT rights and ‘immoral’ to criminalise people on grounds of their
sexuality.
Constitutional morality in the judges’ reading requires that LGBT persons are treated as equal
citizens of India, that they cannot be discriminated against on grounds of their sexual orientation,
and that their right to express themselves through their intimate choice of partner must be fully

respected. It’s only when the dignity of LGBT persons is respected that the Indian Constitution
lives up to its foundational promise. Taken one step further, constitutional morality also requires
the court to play the role of a counter-majoritarian institution, which takes upon itself the
responsibility of protecting constitutionally entrenched rights, regardless of what the majority
may believe. In the judges’ apt conclusion:
If there is one constitutional tenet that can be said to be underlying theme of the Indian
Constitution, it is that of ‘inclusiveness’. This Court believes that the Indian Constitution reflects
this value deeply ingrained in Indian society, nurtured over several generations. The
inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is
manifest in recognising a role in society for everyone. Those perceived by the majority as
‘deviants’ or ‘different’ are not on that score excluded or ostracised.
The theme of ‘constitutional morality’ thus brings about a paradigm shift in the way the law
looks at LGBT persons. Protecting their rights is not only about guaranteeing a despised minority
their rightful place in the constitutional shade, but it equally speaks to the vision of the kind of
country we all want to live in and what it means for the majority.
Indian law seems to have traversed the journey from Nowshirwan to the Naz Foundation, from
being persecuted for same-sex intimacy to making some space for the ‘little communities of
love’. However, the victory in some ways proved fragile, as the decision in 2013 in Suresh
Kumar Koushal v. Naz Foundation was to show. Suresh Kumar Koushal and the failure of
citizenship
Suresh Kumar Koushal, an astrologer, was not a party before the Delhi High Court in the Naz
case. He brought a Special Leave Petition (SLP) challenging the Naz decision before the
Supreme Court just seven days after the historic Delhi High Court judgment. He was joined
subsequently by 14 others from the spectrum of Indian society, comprising all religions, all
united by one thing only, opposition to the Naz judgment.28 This vociferous opposition from
representatives of all major Indian faiths prompted a response from those in favour of the Delhi
High Court judgment. As a result, the parties before that court, Voices Against 377 and Naz
Foundation, were joined by 19 parents of LGBT persons, 14 mental health professionals, 11 law

teachers, 16 teachers and Shyam Benegal, a public-spirited intellectual, who all filed
interventions before the Supreme Court.
The information brought before the court in the Koushal petition by those supporting the Naz
judgment included affidavits testifying to harassment and violence, all inflicted under the
shadow of Section 377. However, in its judgment the court chose to disregard the violations it
had caused. With infamous logic, the judges concluded:
A miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or

transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per
the reported orders) for committing offence under Section 377 IPC and this cannot be made
sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the
Constitution.
The decision is best described in Vikram Seth’s eloquent words as a ‘bad day for law and love’
(2013). As an exercise in reasoning, the Koushal judgment failed to demonstrate why it reached
the conclusion that Section 377 was constitutionally valid. However, the failure of the Koushal
case goes beyond a mere breakdown in reasoning, to questions that go to the heart of what the
Indian Constitution means (Coalition for Sex Workers and Sexual Minorities’ Rights, 2014).
Beyond equality, privacy and dignity, the one concept developed in the Naz judgment that has
resonated widely is the notion of constitutional morality. In an inspired move, Justice Shah went
to the Indian Constituent Assembly Debates. Employing the concept of constitutional morality as
articulated by noted jurist, economist, politician and social reformer, Dr B.R. Ambedkar, the
judge made the point that a notion of public morality cannot be used as a basis to deprive a
minority of their rights. In other words, if India was a form of democracy based upon majority
rule only, then ‘any legislative transient majority in tantrums against any minority’ could
discriminate at will against women, Muslims, Christians and disabled people. Rejecting this
notion of majoritarian oppression, the Naz court underlined the point that India is a constitutional
democracy rooted in a tradition of inclusiveness, and therefore the fundamental rights of all
persons of whatever stripe or persuasion are non-negotiable. The Naz court applied this notion of
constitutional morality derived from Dr Ambedkar, and the notion of inclusiveness as expressed
in 1947 by Jawaharlal Nehru, to LGBT persons. The ruling was based on a profound

appreciation of the deepest meaning of the Indian Constitution’s commitment to protect the
fundamental rights of all persons and groups, however ‘miniscule’ those groups might be.
It is this particular understanding of the Constitutional Court’s role that the Koushal judgment
failed to appreciate. By arguing that it was duty bound to respect the will of parliament, which
represented the ‘will of the people’, it abdicated the responsibility of the judiciary to protect all
minorities from the vicissitudes of majority opinion. Its conclusion that a ‘miniscule fraction of
the country’s population constitute lesbians, gays, bisexuals or transgenders’, and hence it was
unnecessary to adjudicate the validity of Section 377, did profound disservice to the very
meaning of Indian constitutionalism.
While reason is a key component of the law, emotion is not alien to it either. Judicial decisions at
their best are not cold and unfeeling but display a profound empathy for human suffering. A
court that is moved by human suffering produces judgments like that for the pavement-dwellers
(Olga Tellis) and the bonded labourers (Bandhua Mukti Morcha). It could be argued that by
responding to human suffering, judges embody a form of constitutional compassion that should
really be at the heart of the judicial function.
This idea of compassion as central to the very purpose of the constitution finds a place in
Jawaharlal Nehru’s famous ‘Tryst with destiny’ Constituent Assembly speech of 1947 to
welcome India’s independence. Referring to Gandhi, he said: ‘The ambition of the greatest man
of our generation has been to wipe every tear from every eye. That may be beyond us but as long
as there are tears and suffering, so long our work will not be over’. Clearly, from the perspective
as articulated by Nehru, constitutional functionaries – such as the judges of the Supreme Court –
should bear in mind that they have a great constitutional responsibility to redress the causes of
‘tears and suffering’. In Koushal, the court turned a blind eye to human suffering. Two affidavits
read out in court testify to this wilful blindness. Senior counsel, Mr Shyam Divan, read out the
one from Kokila, a transgender person who was brutally raped by the police.
In the police station I was subjected to brutal torture. The police took me to a room inside the
police station, stripped me naked and handcuffed my hands to a window. Six policemen all of
whom seemed to be drunk, allegedly drunk, hit me with lathis and their hands and kicked me
with their boots. They abused me using sexually violent language, including the statements: ‘we

will fuck your mother’, ‘we will fuck your sister’, khoja [derogatory word used against
transgenders] and gandu [one who gets penetrated anally, a derogatory word].
I suffered severe injuries on my hands, palms, buttocks, shoulder and legs. The police also
burned my nipples and chapdi [vaginal part of the hijra body] with a burning coir rope. One
policeman of the rank of SI [Sub Inspector of Police] positioned his rifle on my chapdi and
threatened to shoot me. He also tried pushing the rifle butt and lathi into the chapdi and kept
saying, ‘Do you have a vagina, can this go inside?’ while other policemen were laughing. This
was done with the specific purpose of insulting me by insisting that I as a transsexual woman
was not a real woman as I was not born with a vagina.Senior counsel, Mr Ashok Desai, read out
the second affidavit from Vijaylaxmi Rai Chaudhari, the mother of a gay man:
My child is living with the agony and disrespect of being penalised at any point of time under an
unjust law. It stopped him from coming out for long. Even after he came out, he always felt
insulted since he can’t live his life equally celebrated and accepted by the law and the society.
The thought that Anis could for no fault of his own be harassed by the state, makes Section 377
totally unacceptable for any otherwise law- abiding, just and self-respecting citizen.
The narratives of rape, torture and harassment suffered by LGBT persons did not move the court,
nor did the reports of parents of LGBT persons, who stated that the law induces a profound sense
of fear and destroys the ability to enjoy a peaceful family life. As such, the judgment profoundly
fails to satisfy constitutional promises. Beyond the question of law, Koushal also does disservice
to the idea that a place exists where law and love can meet. The right to love was left unspoken
in Naz. Although Naz never used that phrase, the decision did open out judicial horizons to the
possibility of a place where law could generously meet love. Until the Naz judgment, the lives of
LGBT persons were understood merely in terms of the desired freedom to perform certain sex
acts in the privacy of bedrooms. Naz was instrumental in breaking down those closet doors and
strongly asserting that ‘the sense of gender and sexual orientation of the person are so embedded
in the individual that the individual carries this aspect of his or her identity wherever he or she
goes’. From this articulation of sexual orientation and gender identity (SOGI) as integral aspects
of personhood, the judges continued: ‘It is not for the state to choose or to arrange the choice of
partner, but for the partners to choose themselves.

Thus, Naz asserted that questions pertaining to SOGI were not really about the freedom to
perform sexual acts in private but rather about the identity and personhood that flows from the
freedom to form profound intimate attachments with people of your own choosing. It is this right
to a form of public expression of an individual’s personhood – which goes beyond what they do
in their own bedroom – that is deeply imperilled by the Koushal judgment. For all those who
believe in the right of individuals to express themselves through forming intimate attachments
not constrained by the barriers of caste, religion and sexuality, the decision in Koushal represents
an undeniable setback.
National Legal Services Authority v. Union of India: recognising transgender citizenship
A little over four months since the serious setback suffered by those involved in the Suresh
Kumar Koushal case, another bench of the Supreme Court delivered a remarkably progressive
judgment in National Legal Services Authority v. Union of India,this time in the context of
transgender rights.
The judges began with a powerful acknowledgement of the wrongs inflicted on the transgender
community.
Our society often ridicules and abuses the Transgender community and in public places like
railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are side-lined
and treated as untouchables, forgetting the fact that the moral failure lies in the society’s
unwillingness to contain or embrace different gender identities and expressions, a mindset which
we have to change.
They then traced out a place for the transgender community in both Indian mythology and
history. By referring to its presence in two great epics of India, the Mahabharata and Ramayana,
the judges recognised a cultural sanction to transgender existence. The fact that this section of
society was not discriminated against and in fact was a part of the ruling class under the Muslim
Mughal rulers was also referenced by the judgment. In the court’s opinion, the reasons for the
current abject status of the hijra community had to do with colonial intervention. In 1871 the
British passed the Criminal Tribes Act under which the very existence of the hijra community
was rendered criminal. By referencing the unjust arrest of Khairati, which, as noted above, was
the first documented case of the use of Section 377, the judges recognised that using it formed

another part of the colonial apparatus that ends up targeting the hijra person. The judgment holds
that the denial of rights to the transgender community is a violation of the right to equality
(Article 14), the right to non-discrimination (Article 15), the right to affirmative action (Article
16), the right to freedom of expression (Article 19(1)(a)) and the right to dignity (Article 21).
The National Legal Services Authority judgment (NALSA judgment) is particularly innovative
in its understanding of what freedom of expression means. In the judges’ opinion:
Gender identity, therefore, lies at the core of one’s personal identity, gender expression and
presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution
of India. A transgender’s personality could be expressed by the transgender’s behavior and
presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such
personality, which reflects that inherent personality.
The judges also read the right to life and personal liberty under Article 21 very broadly: ‘Legal
recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under
our Constitution … Self-determination of gender is an integral part of personal autonomy and
self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the
Constitution of India. In conclusion, the judges held that:
Discrimination on the basis of sexual orientation or gender identity includes any discrimination,
exclusion, restriction or preference, which has the effect of nullifying or transposing equality by
the law or the equal protection of laws guaranteed under our Constitution, and hence we are
inclined to give various directions to safeguard the constitutional rights of the members of the
TG community.
The NALSA judgment was remarkable both for its inclusive language and its range of
progressive orders. The state and central governments were directed to implement a spectrum of
measures on health, social welfare and combatting stigma. The state was also directed to
recognise the self-identified gender of persons, be they male, female or third gender, without
surgery being a prerequisite.
The NALSA judgment stands in stark contrast to the Koushal one. The former implicitly
acknowledges the contradiction between the worldviews of the two courts. Though the judges

stated that they could not express an opinion on the constitutionality of Section 377 – since that
question had already been adjudicated in Koushal – they made the important point that Khairati’s
persecution highlighted the fact that ‘even though he was acquitted on appeal, this case would
demonstrate that Section 377, though associated with specific sexual acts, highlighted certain
identities, including Hijras and was used as an instrument of harassment and physical abuse
against Hijras and transgender persons.
The fact that the Koushal and National Legal Services Authority cases expressed such contrary
opinions on the impact of Section 377 only highlights the need for a larger bench of the Supreme
Court to resolve the contradiction.
Towards a conclusion
The stories of Khairati and Nowshirwan illustrate the lack of a language of empathy and a
judicial inability to comprehend what Khairati and Nowshirwan experienced. Unfortunately, this
lack continues into independent India. Too often it has not been seen fit to apply the language of
the Indian Constitution to LGBT persons and their lives. It was only in 2009 that the Naz
decision cracked open this legal mould. In the decision, the limited legal view that LGBT lives
only raise issues of criminal law under Section 377 was broken. Only after this judgement could
the courts and the wider public begin to see these issues and these lives through the lens of the
rights to equality, dignity and privacy.
The fact that the 2009 decision was overturned in 2013 in Koushal, and LGBT persons were
denied their constitutional rights, was a setback. The acknowledgement of the discrimination
faced by the transgender community and the fact that the people who belong to it are full human
beings with rights in NALSA, won back part of what was lost through Koushal. The Supreme
Court then decided to re-examine Koushal through the constitution of a new bench in the
curative petition. This has reignited hope that the judgment will be set aside. The Supreme Court,
in its order dated 2 February 2016, noted:
Since the issues sought to be raised are of considerable importance and public interest and some
of the issues have constitutional dimensions including whether the curative petitions qualify for
consideration of this court in the light of the judgement in Rupa Hurra’s case, it will be more

appropriate if these petitions are placed before a Constitution bench comprising five Honourable
Judges of this Court.
CURRENT POSITION
The Supreme Court in Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of
Law and Justice, AIR 2018 SC 4321, restored a landmark Delhi High Court judgement in Naz
Foundation v. Govt. of NCT of Delhi, which had decriminalised homosexuality in a move that
was immediately hailed by the minority LGBT community. A five-judge bench led by CJI Dipak
Misra diluted Section 377 of the Indian Penal Code, to exclude all kinds of adult consensual
sexual behaviour. The law will still stand on the statute book to deal with unnatural sexual
offences against minors and animals such as sodomy and bestiality.
The dreaded section not only made any kind of homosexual behaviour but also other kinds of
“unnatural” sex such as oral and anal sex etc a criminal offence. "Section 377, IPC, to the extent
that it criminalises consensual sex between two adults is arbitrary, irrational and hence liable to
be partially struck down." A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu
Malhotra, were the other judges on the bench. The judgement was unanimous.
The bench, however, stopped short of striking down the law. Instead the bench spoke up for the
LGBT community's right to enjoy equal rights under the constitution. This will help the
community claim equal constitutional status as other citizens. It also affirms their right to claim
the right to adopt, marry and have a family. It may also prevent social ostracism with the court
declaring affirmatively that it was not a mental disorder. But something innate to a human being.
The Delhi High Court had in 2009 taken this view, but a bench of the top court had
controversially undone the ruling saying changing mores were best left to Parliament to deal
with. Section 377 makes even consensual sexual acts -- both homosexual and heterosexual – a
crime if they are against the order of nature. Those in favour of diluting the law to decriminalise
all consensual sexual behaviour have argued that majoritarian morality must make way for
constitutional morality which makes it mandatory for the state to provide equality to all.

MODULE 4: CRIMINAL LAW AND THE POOR
4.1 ANTI-POOR BIASES OF THE CRIMINAL JUSTICE SYSTEM
• A Criminal Law regime, both substantive and procedural, has to accord special attention
to the poor.
• What are the crimes that are committed mainly due to poverty?
• Do the Criminal Courts view the poor with due sensitivity, whether as suspect, accused,
convict, victim or witnesses?
• Do the poor have satisfactory opportunity to defend themselves when facing criminal
trial?
• Neglect or lack of due attention towards these relevant aspects may not only spread
distrust in the established order but may also lead to further breakdown of order and impede the
developmental process.
Constitutional Aim
• To secure a social order based on the socio-economic and political justice. This is evident
from the text of Preamble to the Constitution which strives for attainment to all its citizens of

justice. It is to be appreciated that justice - social, economic and political would alone bring a
desired order.
• What then should be the road map and strategy to apply criminal law provisions in regard
to the poor? Broadly, the desired action may take one or more of following forms:-
1. Affirmative action. To illustrate action for land reforms or to provide job guarantee to the
poor.
2. Law Enforcement e.g., to arrest
(a) Bonded labour - Bonded Labour System (Abolition) Act, 1976
(b) Begging - (Bombay) Prevention of Begging Act, 1959
(c) Prostitution - Prevention of Immoral Trafficking Act, 1956
(d) Untouchability - Protection of Civil Rights Act, 1955
(e) Indebtedness
• Obviously public participation is an utmost necessity in these efforts. Role of NGOs need
not be highlighted to give proper focus to areas warranting affirmative action. Vital Role in Law
Enforcement & Administration of Justice has to be played by:-
1.Courts
2.Police
The police is authorized to detain anybody found begging on the streets. Implementation of law
takes more time rather than welfare of the beggars. Challenges to criminal law with regard to the
poor are numerous and call for major structural reforms and attitudinal changes.
1. Lack of knowledge on the part of the poor; and
2. Lack of courage to face the inadequacies and ills of the system.

• Custodial violence in police custody is in violation of the Supreme Court directive in
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
• Where an accused was wrongfully confined in police custody on suspicion of theft and
was beaten to death when his wife was being raped by the policemen. The Supreme Court held
that the policemen should have been charged under section 302, Indian Penal Code and awarded
death sentence, as murder by policemen in police custody is in the category of rarest of rare cases
deserving death sentence.
• Anti-poor bias of criminal law is also a major problem.
In Unnikrishnan JP v. State of Andhra Pradesh, MANU/SC/0333/1993 : (1993) 1 SCC 645,

some of the unenumerated rights listed out by the Supreme Court were as under:-
(a) The right against bar fetters.
(b) The right to legal aid.
(c) The right to speedy trial.
(d) The right against hand cuffing.
(e) The right against delayed execution.
(f) The right against custodial violence.
(g) The right against public hanging.
Marginalised sections who are to face such challenges include
• Poor
• Women
• Children

• Physically and mentally handicapped
• Disabled
• Trans-genders.
• Indian Penal Code has within its fold a Classification of Crimes wherein the total number
of crimes relating to three major segments are given below.
Property - 85
Person - 79
Documents - 32
• 58% of the total number of sections out of the Indian Penal Code text are meant to protect
the interest of the elite.
• Case-Law
In Sreerangye's case, it was held that poverty cannot justify grave offences
• The principal purpose of criminal justice administration is to preserve and defend the rule
of law i.e. social control of law, maintenance of order, speedy trial, penalization of offenders,
rehabilitation of offenders through the judicial system, and solace to victims of crimes.
• The current criminal justice system is affected by various loopholes and faults. The legal
approach is time-consuming and generally geared towards the mind of the accused i.e., a system
that is involved with the rights and interests of the offender instead of those of the victims.
• The current criminal justice system has been unsuccessful in delivering speedy and
prompt justice to people and guaranteeing the certainty of penalization to perpetrators of crime.
The necessity is therefore to offer a reformed look at the various aspects of the criminal justice
system in the field of justice for people and regarding the increasing challenges of criminal
justice reform.

• A person is surprised if he/she learns that they did not get the relief or cure that they
might have expected, and gradually loses confidence in the framework of government. The
process is thus disconnected from the people it was built for and nurtured over time. There may
be other facts and circumstances in the form of factors that lead to the system's challenges and
they are:
• Lack of transparency.
• Pendency of cases.
• Cumbersome procedures.
• Lack of coordination and system approach.
• Corruption.
• Lack of awareness amongst individuals.
• A judiciary that recognizes the rule of law as a basic framework, must abandon the
culture of secrecy that surrounds its process. The pendency of litigation is another key issue
within the Indian legal system. A common expression says that “equity deferred is denied equity
"and according to a 2017 survey, there are currently, nearly 60,000 cases pending within the
Supreme Court. Across separate jurisdictions, there are between 25 and 30 million cases.
• The role of judges in the 24 High Courts of the nation has nearly 400 vacancies. In the
Supreme Court, there are several pending appeals, and the legal system has been invalidated by
the other lower courts. To no small amount, burdensome procedural regulation frequently leads
to the delay in the resolution of proceedings.
• The lack of control over the case file and legal proceedings leads to the late disposition of
cases in no small measure. The question is furthered by the granting of undue delays simply by
asking for orb “strike call.”
• The various aspects of the criminal justice system, that is police, prosecutors, judiciary,
and correctional agencies, are typically lacking in comprehension and teamwork. Corruption

being an old evil has been prevalent since the immemorial times. Due to delays in justice,
inaccessibility, misuse of power, bribery, and the difficult impeachment process, the corruption
is rising in the judiciary.
• Lastly, due to the lack of information and awareness about the law and its procedure,
misuse, delay, and confusion among individuals is often creating a problem. Speedy justice has
always been the sine qua non of criminal jurisprudence. The core of criminal justice is the right
to speedy trial and justice is inevitably denied. Because of the prolonged pendency of cases, an
individual suffers in multiple and different ways.
• While he is innocent, he has suffered psychological trauma, social isolation, and possibly
economic disability before he is innocent. Although he’s guilty, delay shakes his faith in the
criminal justice system and makes him cynical.
• Therefore, it is essential to eliminate the delay in disposition as far as it is possible for

criminal cases. Although in the Constitution, the right to prompt justice is not expressly stated in
the broad sweep of Article 21 as a fundamental right, it is implied. Article 21confers on each
person, except under the procedure laid down in law, a fundamental right to not be deprived of
their lives or rights. The process for depriving anyone of freedom may now obviously not be ”
reasonable, decent, or equal unless that procedure ensures speedy trial for determination of guilt
of such a person” said the Supreme Court in the case of Hussainara Khatoon v. Home Secretary
of State of Bihar. The Supreme Court, in A.R Antulay v. R.S. Nayak, held that the fundamental
right under Article 21 ensures an expedited trial to decide on the culpability of such an
individual.
• According to Hon’ble Justice S.B. Sinha and Justice Dalveer Bhandari of Supreme Court
of India: “Speedy trial is one of the facets of the fundamental right to life and liberty enshrined in
Article 21 of the Constitution of India and the law must endure reasonable, just and fair
procedure which has a creative connotation.”
• Various measures have been taken to speed up the disposal of arrears of cases. In
particular, on recommendations of the 11th Finance Commission, the Central Government

decided to create 1734 fast track courts for clearing up lingering cases in districts, including
plugging the vacancies of judges, assessing working days or annual vacations in the high courts,
the districting and subordinate courts, and streamlining the rules and procedure and so on.
• According to the report, clearance of oldest session cases and cases involving trials in the
dungeons shall be given priority by the fast track court. The prolonged civil cases would also
take priority over fresh cases. The government has formed a committee on Criminal Justice
Reforms of 24.11.2000, which submitted its report on 21.04.2003, by Dr. Justice V. S. Malimath.
• The committee’s primary goal is to achieve justice, which is to punish those who are
guilty and protect those who are innocent. The committee recommended that the focus of the
program should be on the protection of the accused. The average ratio of judges to the Indian
population in many parts of the world is 10.5 to 13 per million, compared with 50 Judges in a
million. While the government of India has set up a system for the handling of “Fast Track
Courts” sessions.
• Human rights are those that every person has as a human being right from birth. This is
natural and inalienable. Human rights are the basic rights that an individual has, irrespective of
other factors, due to being a member of the human family.
• To enforce human rights and thus preserve and secure the civil rights of residents of the
country, the criminal justice system, consisting of police, judicial, and correctional institutions
has an important role to play.
• Nevertheless, police and prison brutality runs contrary to the values of human rights. The
Indian Constitution, which has been clarified in many Supreme Court rulings, provides for
human rights protection in keeping with international standards like in Maneka Gandhi v. Union
of India, the Supreme Court held that no one should be subjected to arbitrary arrest, detention, or
exile.
• Under Article 21 no person shall be deprived of life and personal liberty except according
to the procedure prescribed by law. Since the decision of the Supreme Court, the procedure
under Article 21 must be fair, just, and reasonable and cannot be arbitrary, unfair, or
unreasonable. In Sunil Batra v. Delhi

• Administration, the Supreme Court held that keeping of under trial prisoners, who are
presumed to be innocent, with convicts, offends the test of reasonableness under Article 19 or
fairness under Article 21.
• In Sheela Barse v. Union of India, the Supreme Court emphasized that children should
not be confined to jails because it has a dehumanizing effect and is harmful to the growth and
development of children. The court also ordered that where a complaint is filed or a first
information report is lodged against a child below the age of 16 years for an offence punishable
with imprisonment of not more than 7 years, the investigation should be completed within 3
months and if the investigation is not completed within 3 months, the case against the child
should be treated as closed.
• The Human Rights Commission Act of 1993 sets down the constitution of State and
• National Commissions on Human Rights to investigate allegations of human rights

abuses and government machinery infringements to prevent such abuses and recommend
legislation for the successful enforcement of constitutional and national guarantees.
• Current situation
• Our criminal justice system is outdated, obsolete, and patriarchal, considering that
significant criticism is levied at national and international forums when human rights problems
are addressed.
• Where the criticism comes from our own human rights advocates, scholars, authors,
journalists, the heads of criminal justice systems keep careful silence, but strong criticism comes
from international (foreign) outlets, such as Amnesty International, World Watch, etc.
• The truth is that silence and rejection are always painful and unrequested.

• The irony is that 2/3rd of the criminal justice system involving legislation and prisons
still abuses human rights and perpetuates human abuse, and the tiny 1/3rd of the judiciary (in
particular through an apex court) seeks to protect and uphold human rights.
• To cope with this problem we formed the National Commission of Human Rights – with
all our good intentions, to remediate the situation and address pressing human rights issues in the
country. Unlike the Supreme Court, there is a very crowded agenda for the Commission too,
which makes no sense of euphoria.
• The nation is facing a difficult situation, both internally and externally, because violations
of human rights are now commonplace and our thoughts and emotions are marked by a lack of
hope. Justice Krishna Iyer describes our human rights record as “testing illusion and promise of
unreality“.
• Despite its guidelines for police, jail, and other agencies being upheld rather than in
violation, the Supreme Court, the sentinel for human rights, could only make superficial changes.
The Writ Courts are too distant and expensive to help indigent and illiterate victims of human
rights violations. In the absence of compliance, the privileges now given by the courts are
illusory.
• Justice Krishna Iyer also said that: “Rights, however, solemnly proclaimed and
entrenched in great instruments are but printed futility, unless a puissant judiciary armed with
legal authority. Remedial process and jurisdiction, operational and pragmatic, transforms the
jurisprudence of human rights into public law of enforceable justice.”
• A wide disparity between regulatory statements and enforcement abilities exists within
the human rights regime. This means that the scenario is marked by major abuses of civil and
political rights as well as economic, social, and cultural rights.
• Suggestions for improving the criminal justice system
• Court delays are like a poison, killing the entire judiciary.

• For more than 15 years, lawsuits are pending at trials. Who, the police, the prosecutor, or
the judges are responsible for it?
• The criminal justice process or the police should be blamed for delays in the disposition
of cases and arrears in criminal courts. The following are some suggestions or part of the
elements that must be able to activate the legal procedures and improve them, they are:
1. In subordinate courts and high courts, the power of judicial officers and judges is
sufficiently enhanced. There should be no unfulfilled vacancies in courts. The judiciary recruits
young and talented citizens with honesty.
2. Considering the inadequacy of judicial officers to dispose of arrears in criminal

proceedings, retired judicial officers’ services or magistrates may be abused by the creation of
special tribunals that are to be headed by them.
3. India now hopes to become a fully digitized nation. In reality, we were extremely
successful. But the Indian legislation is abandoned for some odd cause. That shouldn’t be the
case. The system of Indian law should be completely digitized from the start to the end. It helps
to save a lot of time for context documentation.
4. The aim of our criminal justice system should be to provide speedy justice.
5. There must be thorough preparation for the judicial officers. Training in forensics should
also be given. They shall coordinate refresher services in the light of rapid social change, the
whole continuum of offences in terms of cognizable and unaware crimes has to be re- examined.
Many of the unsolved crimes may be identified.
6. The obsolete and anomalous acts should be abrogated. The legislature should be careful
to multiply the number of criminal laws.
7. As society evolves rapidly, new forms of violent crime such as organized crimes,
insurrections, terrorism, etc. emerge as a result of industrialization and economic growth. To
solve these attacks, there should be a specialist police force. For this reason, comprehensive

training and required new installations and infrastructural equipment are given to police and
investigation agencies.
8. Police brutality, misbehaviour by the police, prison abuse, police misconduct should be
handled thoroughly and efficiently.
• Senior police officers must create a committee for the severe treatment of the issue and
they should be disciplined and disciplinary action against unjust police personnel and made
liable to reimburse the victims of their crimes.
9. Improvements are required in the prisons.
10. Plea proceedings may also be used to reduce the immense backlog of cases.
11. Finally, given that the judiciary is the branch of government, the vacations in the courts
should be the same as with other government executive wings. Summer holidays or additional
holidays in courts do not take effect. The working hours will be the same as every other
government department’s daily working hours.
12. Just as we consider the citizens must acquire speedy justice, it is also important to make
the justice system less expensive for them as well. Citizens discourage their cases from being put
to courts because of the high fees of lawyers.
• The process must be “uncompetitive, casual, versatile, compassionate, practical, and

without legal complications,” says Justice V.R. Krishna Iyer.
Conclusion
• The task before India is to improve human rights by improving its law enforcement
system in its domestic criminal administration and, on the other hand, not be swayed at the
expense of social growth and the unity of the country. The establishment of the National Human

Rights Commission will make a difference if it is genuinely committed to recognizing human
rights abuses in crime prevention operations, instead of being a face-saving tool for international
criticism of human rights situations and being actively engaged in corrective and remediation
steps.
• Reconciliation lies in the strengthening of the human rights community at home, which,
in effect, would also replenish our reputation on the international stage.
• It can, therefore, be argued that we can, in the spirit of the citizen, raise the consciousness
of human rights to uphold human rights and the basic freedoms of the accused. Then, if the law
evacuates these accumulations, the Indian statutory system might be considered to be the
strongest legal structure on the planet. Similarly, until it is lost, a reasonable person’s trust in the
law may be restored.

4.2 BAIL JURISPRUDENCE-PROBLEMS FOR POOR
Victims of Bail Justice
• Bail means to set at liberty a person arrested or imprisoned, on security (or bail) being
taken for his appearance on a day and at a place named. Bail is some form of property deposited
or pledged to a court to persuade it to release a suspect from jail, on the understanding that the
suspect will return for trial or forfeit the bail (and possibly be brought up on charges of the crime
of failure to appear.
Purpose Behind Bail Provisions
• It would be unjust and unfair to deprive a person of his freedom and liberty by keeping
him in confinement, despite the assurance of his presence in the court whenever required for trial
by the court. Bail is set by the judge during the accused's first appearance.
• The amount of bail is generally an amount determined in light of the seriousness of the
alleged offence.
• Bail in criminal cases is given for the appearance of the person bailed to take his trial or
attend further examination.
Interim Bail
• It permits an accused person to be given bail till the final hearing of bail application in
court. However, if an accused is already in jail, the provision of interim bail is cancelled.
• Anticipatory Bail under section 438, CrPC allows a person to seek bail in anticipation of
an arrest on accusation of having committed a non-bailable offence.

Bailable
• An arresting process is said to be bailable when the person arrested may obtain his liberty
on giving bail. The Supreme Court pointed out in the case of Sidharam Satlingappa Mhetre v.
State of Maharashtra, (2011) 1 SCC 644 that a great ignominy, humiliation and disgrace is
attached to the arrest.
• As reported, by and large, nearly 60% of the arrests are either unnecessary or unjustified.
As held, the arrest should be restricted to those exceptional cases where arresting the accused is
imperative in the facts and circumstance of the case.
Legal Provisions - Criminal Procedure Code Sections 436 to 450
• As soon as a person is arrested, he must be apprised of his right to apply for bail. A
person released on bail is required to execute a personal bond and also to furnish a bond of
security for a certain sum of money fixed by the court.
• The surety undertakes to pay the amount to the court in case the person released on bail
does not present himself during investigation or in the court on the date of hearing in accordance
with the terms of the bond.
Problems for the Poor
• The entire system of monetary bail is anti-poor since it is not possible for a poor man to
furnish bail because of his poverty. Even in the case of bailable offences where the accused is
entitled to secure bail as a matter of right bail is not granted by the court unless the defendant is
able to secure a surety.
• Poor do not possess sufficient means to furnish bail. They are not able to avail surety.
Hence, they are unable to secure bail to get free. In some cases, they have remained in detention
for even longer periods than the maximum term of imprisonment laid down under the concerned
penal provisions without their trial having started.

• The courts are interpreting the provisions of bail in strict sense and the new theories of
bail are spelled by them; Hussainara Khatoon (I) v. Home Secretary, State of Bihar,
MANU/SC/0119/1979 : (1980) 1 SCC 81. Protective custody in jail of women not accused of
any offence but who are either victims of the offence or needed to give evidence on the plea of
lack of welfare homes, held, violates article 21.
• Burden would be on the State to maintain rescue and welfare homes for such women.
Immediate release was directed by the court of such women and children in 'protective custody'
and to be kept in welfare homes.
• As regards under trials a right of speedy trial is vested in them. Investigations should be
completed within a time bound programme. Action directed against non-commencement of trial
since several years.
• Bail system as prevalent is oppressive and discriminatory against the poor. Courts and
police must abandon the antiquated practice of release only against the bond with sureties and
permit release on personal bond.
• What has been stated here in regard to the court must apply equally in relation to the
police while granting bail.
Victims of Prison Injustice
As per a survey made on 1 April, 1997, the under trials constitute 54 per cent. of the total jail
population.
Problems of Under-trials
1. Release
2. Speedy trial
• The snail paced justice delivery system saw more than two lakh poor under-trial prisoners
languishing in jail for many years, in many cases exceeding the maximum sentence for the
crime.

• Lack of coordination between the Centre, judiciary and State Governments and also
because they did not have anyone to stand as guarantors nor assets to furnish as bail bonds, the
poor continued to suffer in prisons.
• A missionary effort by the Union Ministry for Law and Justice threw up very unexpected
results lakh under-trials released on bail, 77,940 discharged and 68,774 convicted, majority of
whom were released for having already served their sentence as under-trials.
Abuse and Challenges
1.Physical and sexual violence
2.Judicial corruption
3.Faulty eye-witness identification
4.Manipulation in filing of charge-sheets and FIRs
5.Shoddy investigations
6.Biased judiciary
• There is also scope for abuse in cases of OMNIBUS FIRs in which the accused is
identified only as 'an unruly mob' or 'a mob of 10,000.‘
• It gives a handle to the Police to round up even innocent people and ill treat them.
Instances are also not uncommon about filing of false charges against youth of minority
community arbitrarily detained. It has been observed that most of those who remain in jail
belong to marginalised dalits, minorities, or tribal communities.
• Human Rights Watch has at various times taken up problems of poor under- trials.
• According to an estimate by them:-
• Number of jails in India - 1500

• Capacity to hold prisoners - 2.5 Lacs Actual inmates - 3.5 Lacs
• Number of under-trials were nearly 1.7 Lacs as on 17 August, 2009.
• According to a survey held on a different date pattern of prison inmates was 59 to 70% -
Under trials (2.45 Lacs) 41 to 30% - Convicts (1.05 Lacs)
• Pattern of under-trials as regards category of offences is as follows:- Petty offences - 70%
(1.7 Lacs) Others - 30% (0.75 Lacs)
• In Tihar Jail, in 1993, out of 280 women prisoners only 20 were actual convicts while
260 were under trials. Majority of under-trials have one or more of following:-
• Poor means
• Underprivileged
• Rural and agricultural background
• Hence, there is an immediate case for reforms and improvements in the system of prison
rules and administration.
• The object of Criminal Procedure is to provide a machinery for the timely and proper
Administration of Criminal Law.
• Preventive measures are needed to be introduced for the safety and protection of society
from suspected persons.
Criminal Procedure Code, Chapter VIII, Sections 106 to 124
• Provisions exist that call for security for keeping the peace and for good behaviour. Anti
poor bias of legal procedures in their operation is also manifest.
• CrPC provisions are beyond the poor due to :
• Poverty
• Illiteracy

• Ignorance.
In many cases, the period of detention has overshot the sentence that could have been awarded to
them in case of conviction.
Poor suffer due to many procedural infirmities including due to delays in:
• Filing of FIRs
• Non-finalisation of petty cases like prohibition and minor offences. Usual excuses given
by the law enforcement agencies relate to understaffing:
• Police force
• Courts
• Prisons
Plight of those concerned with the criminal justice system is also affected due to:-
• Jails which are overcrowded.
• Prisons have poor sanitation.
• Prisons are often without basic facilities
• Victims of torture and violence at the hands of other detainees and prison staff.
• Inefficient prison administration.
• Institutional corruption and caste discrimination
• Incarceration, even when the inmate is later released, has adverse social, financial and
emotional impact.
• Detainees with psychiatric problems get no medical care and instead, are put in solitary
confinement.

• According to State Prison Manuals, District and Session Judges are expected to function
as ex-officio jail visitors. However, due to their heavy workload in courts, they rarely have time
to visit jails.
• It may be recalled that Right to Health defined as the right to the enjoyment of the highest
attainable standard of physical and mental health (According to WHO, UDHR and ICESCR).
• Justice R.S. Pathak in Hussainara Khatoon (I) v. State of Bihar, MANU/SC/0119/1979 :

(1980) 1 SCC 81 underlined the unsatisfactory position in law when he recorded that there was
no mechanism with the CrPC which, "enabled the release, in appropriate cases, of an under-trial
prisoner on his bond, without sureties and without any monetary obligation". There is urgent
need for a clear provision.
FINE AND QUANTUM OF SENTENCE IN CASE OF DEFAULT
• Default in payment of fine, a misconception that ought to be made clear is that the
imprisonment ordered, is not a sentence but merely a penalty imposed on account of non-
payment of fine. The significance being that the fine has little to do with the substantive aspect of
the crime, but is more of a penalty for violating a court order, akin to civil contempt of court.
• The former has to be necessarily undergone, whereas the latter can be avoided by simply
paying the fine. Section 63 of the IPC lays no particular limit on the amount of fine that can be
levied against an accused, but merely provides that, it shall not be ‘excessive’.
• The phrasing of the section ipso facto leaves a larger burden on the courts to determine
fine as the area remains subjective. In one of the earliest cases before the Allahabad High court
of Emperor v. Mendi Ali, 1941 SCC 29. it was pronounced that “I cannot think it is proper, in
the case of a poor peasant, to add to a very long term of substantive imprisonment for a fine
which there is no reasonable prospect……”
• In Palaniappa Gounder v. State of Tamil Nadu, 1977 SCC (2) 634. the Supreme Court
while reversing the High Courts judgment had noted that a fine cannot be calculated on the basis

of the compensation that the relatives of the deceased ought to receive, but necessarily on the
pecuniary position of the accused and the nature and magnitude of the offence.
• If the offence be one which is punishable with imprisonment as well as fine, the term of
imprisonment in default of payment will not exceed one-fourth of the longest term of
imprisonment fixed by the Code for the offence.
• If the offence be one which by the Code is punishable only with fine, the term of
imprisonment for default of payment will in no case exceed seven days. The above mentioned
proposition is laid down in the reading of Section 65 IPC as well as Section 30 of the CrPC.
• This view was clarified in State v. Krishna Pillai Madhavan Pillai, 1953 Cri LJ 1265,
where the court had ruled that the two sentences can never run concurrently and the fine can also
be charged even after any such sentence or even after the death of the person. Serving the
imprisonment does not discharge the offender of his duty to pay fine. Moreover, it should also be
remembered that the sentence of imprisonment awarded in default of fine is a penalty rather than
being a sentence which has to be undergone compulsorily.
ON COMPLETION OF JAIL TIME IN CASES OF DEFAULT OF PAYMENT, WILL THE

FINE STILL BE LIABLE TO BE PAID?
• Compensation to the victim at all times is paid from the fine that is levied on the accused.
The proviso to Section 421(1) provides that a fine shall seize to exist if the accused has
undergone the contemplated imprisonment in default of it.
• However, there is an exception to this proviso. Section 357 of the Criminal Procedure
code is a special provision for compensation that the relatives of the victim are entitled to, from
the perpetrator.
• The proviso in 421 makes sure that in spite of the person having served the sentence is
not relieved of his/her liability to pay, if such fine is to be paid as compensation under section
357. Till now it has been seen that the court can neglect the termination of fine even after

completion of the default trial citing special reasons to do so. But apart from these special
reasons section 421(1) also provides for exceptional cases in which the compensation is awarded
under section 357 of the CrPC.
• The object of the section therefore, is to provide compensation payable to the persons
who are entitled to recover damages from the person sentenced even though fine does not form
part of the sentence.
• The compensation in such cases has to be provided to the family and the dependants of
the victims. In Rachhpal Singh v. State of Punjab26 the Supreme Court said that while
considering the compensation awarded by the courts below held that the compensation in
question should commensurate with the capacity of the accused to pay as also other facts and
circumstances of that case like the gravity of the offence, the needs of the victim’s family etc.

4.3 COMPENSATION TO VICTIMS OF CRIME: CONSTITUTIONAL
DEVELOPMENT AND CRPC
Introduction
“Justice is that which upholds, nourishes or supports the stability of the society,
maintains social order and secures the general well being and progress of mankind”.
JUSTICE stood as first in the preamble to the Constitution of India (COI). Justice must be
reformative for the purpose of perpetrator and rehabilitative for the survivor. It is a legitimate
expectation that the Victim(s) of Crime (VOC) must be given rehabilitative support including
monetary compensation.
Victim Compensation (VC) recognizes the rights of VOC in Criminal Justice System (CJS. In
the Code of Criminal Procedure, 1973 (CrPC or Code) there is a provision of S. 357 to award
compensation either to the VOC or cost of the prosecution expenses. The Code of Criminal
Procedure (Amendment) Act, 2009 inserted S. 357A as VC.2 There was no comprehensive
legislation or a well-designed statutory scheme in India that allowed VOC to seek compensation
either from the perpetrator or from the State. Th recent amendment to CrPC in 2009 is a step
forward.
Moreover, by the same amendment S. 372 of CrPC was also amended, by inserting a proviso,3
which provided that VOC has right to proceed to file an appeal in the Court under certain
conditions or situations which one among them is not satisfied with the amount of compensation
given or inadequate compensation awarded by the Court.
S. 357 deals with on concluding the trial, once the guilt of the accused is proved, convicted and,
sentenced as per the provision(s), where he has been charged, and if fine is
imposed as part of the sentence and out of that fine, either the cost of prosecution or VOC may

be compensated. If fine is not part of the sentence, the Court may fix compensation and direct the
convict to pay it to VOC under sub-section
(3) of S. 357.4 This was followed till 2009 amendment to the Code, to pay an adequate
compensation to VOC. There was a difficultly to apply S. 357 when the accused was acquitted or
the accused has not been traced out and the trial could not be taken in time.
To overcome the difficulty, S. 357A was inserted into the Code. It provides a fresh perspective
addressing the lacuna in allocating responsibility to the State. It obligates State governments to
draw up Victim Compensation Schemes (VCSs). This provision says that even if the criminal
case ends with an acquittal or the accused is not traced or not identified or no trial takes place,
and to meet out VOC, VC was introduced and the State has to pay compensation. The State
Legal Services Authority (SLSA) or District
Legal Services Authority (DLSA) has to fix quantum of compensation depending upon the facts
and circumstances of each case and to pay it to VOC or his/her dependents. Rendering VC to
VOC is a Restorative Justice (RJ) in CJS. Here, attempt is made to trace out the legislative
history of VC, CJS, RJ in CJS, Role of the Judiciary on VC, VCSs and the way forward to the
aspects of VC.
Legislative History of S.357A
In the process of forming any law there are some basic steps which are to be taken, the law
present in the today’s era have some type of norms; norms are the basic rules which a particular
society or community have to follow.
Significant global development on VC may be noticed as under.

Global Development Babylonia - Hammurabi Code
• In ancient Babylonia, the Hammurabi Code makes the earliest reference to

governmental compensation for VOC. It said: “If a man has committed robbery and is caught,
that man shall be put to death. If the robber is not caught, the man who has been robbed shall
formally declare what he has lost… andthe city … shall replace whatever he has lost for him. If
it is the life of the owner that it lost, the city or the Mayor shall pay one maneh of silver to
his kinsfolk.”
United Kingdom
England was perhaps the first to adopt a separate statutory scheme for VC by the State under the
Criminal Injuries Compensation Scheme, 1964. Under the Criminal Justice Act, 1972 the idea of
payment of compensation to VOC by the offender was introduced. Under the said Act, it is
mandatory for the Secretary of the State to make necessary arrangements for the compensation of
VOC. It shall also make arrangements for the payment of compensation to VOC or in respect of
persons who sustained criminal injury. It stipulates that sums required for the payment of
compensation in accordance with the Scheme shall be provided by the Secretary of State out of
money provided by the Parliament. Consequently, The Criminal Injuries Compensation Scheme
2011 was framed in UK, which, inter alia, specifies the standard amount of compensation
payable in respect of each type of injury and compensation is payable irrespective of the criminal
being apprehended or not and independent of the trial of the accused.
United States of America
In the United States of America, the Victim and Witness Protection Act, 1982 authorises the
Federal Court to award restitution by means of monetary compensation as a part of a convict’s

sentence. Section 3553(a) (7) of Title 18 of the Act requires court to consider in every case “the
need to provide restitution to any victims of the offence”.
The move towards state compensation was mirrored in the United States. California being the
first state to do so in 1965. In the year 1984 the US Congress enacted the Victims of Crime Act,
1984, which established a Crime Victims Fund within the US Treasury. This compensation is
provided only to innocent VOC.
Europe
The Council of Europe Recommendation on the Position of the Victim in the Frame- Work of
Criminal Law and Procedure, 1985.
Statement of the Victims’ Rights in the Process of Criminal Justice, issued by the European
Forum for Victims’ Services in 1996. European Union Framework Decision on the Standing of
Proceedings.Victims in Criminal Council of Europe’s Recommendations on assistance to
Crime Victims adopted on 14.06.2006.
United Nations
The United Nations General Assembly recognized the right of VOC to receive compensation by
passing a resolution titled “Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, 1985” highlights the following areas:
(a) Access to Justice and Fair Treatment;
(b) Restitution;
(c) Compensation; and
(d) Assistance.

The UN General Assembly further passed a resolution titled “Basic Principles and Guidelines on
the Right to a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Series Violations of International Humanitarian Law, 2005”. It deals with the
rights of victims of international crimes and human rights violations. The Supreme Court of
India quoted these principles in their draft form in State of Gujarat, approving of their
jurisprudence and contribution to victim protection laws.
Handbook on Justice for Victims
The subject matter has been dealt with by experts from over 40 countries in series of meetings
and a document has been developed in co-operation with United Nations Office at Vienna,
Centre for International Crime Prevention and the compilation under the heading “Handbook on
Justice for Victims” which deals with various aspects of impact of victimization, victims
assistance programmes and role and responsibility of frontline professionals and others to VOC.
The South African Law Commission has deliberated on various relevant aspects of this issue.
Developments in India Law Commission of India Reports
The Law Commission of India (LCI) in its 152nd Report14 recommended that S. 357A needs to
be added in CrPC where compensation should be awarded to the VOC at the time of sentencing
the accused. It has not been implemented properly. Again in its 154th Report, it recommended
that it is necessary to incorporate S. 357A in CrPC to provide a comprehensive scheme of
compensation to VOC. A dozen years later the recommendation of LCI was accepted by the
legislature and the amendment of S. 357A in CrPC had taken place
The LCI in its 154th Report devoted an entire chapter to “Victimology” in which the growing
emphasis on victims’ right in criminal trial was discussed extensively. The amendments to CrPC

brought about in 2008 focused heavily on the rights of VOC in a criminal trial, particularly in
trials relating to sexual offences. S. 357 was unchanged, but
S. 357A was introduced under which the Court is empowered to direct the State to pay
compensation to the VOC. Introduction of S. 357A is to further strengthen victim’s
rehabilitation.
The said report was influenced by the Tamil Nadu system of “Victim Assistance Fund”. The LCI
suggested the setting up of a similar Fund. Even the Malimath Committee was in favour of the
establishment of a State funded compensation fund modelled on the Victim Compensation Bill,
1995 prepared by the Indian Society of Victimology and submitted to the Government of India.
This reflects that the State of Tamil Nadu is a starting point and pioneer in the field of victim
assistance fund.
Recommendations of Malimath Committee, 2003
In order to revisit the machinery of CJS in India, in 2003 a Committee on Reforms of Criminal
Justice System was constituted under the Chairmanship of Justice V.S. MALIMATH. The
Malimath Committee Report made observations regarding the history of CJS and how it was
apparent that it mostly protected the ‘power, the privilege and, the values of the elite sections in
society’. It evaluated the way crimes are defined in the modern era. The administration of the
system demonstrated that there is an ingredient of truth of such a narrow perception. With
respect to the rights of the VOC, the Report pondered as:
“6.7.2. What happens to the right of victim to get justice to the harm suffered? Well, he can be
satisfied if the State successfully gets the criminal punished to death, a prison sentence or fine.
How does he get justice if the State does not succeed in so doing? Can he ask the State to
compensate him for the injury? In principle, that should be the logical consequence in such a
situation; but the State which makes the law absolves itself.

Article 21 of the COI jurisprudence has gained momentum and extends to rehabilitating the VOC
or his/her family. However, the scope for remedy to the VOC in terms of compensation was
earlier limited under public law by way of writ jurisdiction. Therefore, there was a need to
introduce specific provision for providing compensation to the VOC irrespective of the result of
criminal prosecution.
Accordingly, S. 357A was introduced in the CrPC.This is a well acceptable measure to the VOC
where he would not go to the State’s or Centre’s top Court for writ remedy. The VOC can work
out his remedy at the District level for filing VC application before the DLSA or the trial Court
can order for VC determination to DLSA u/s 357A of CrPC.
Victim Compensation (VC)
Concept of Compensation
• The word compensation is neither defined in the Code nor in the General Clauses Act,
1897. Having no statutory definition one has to see the general definition available in the
dictionaries or the Courts’ interpretation. The word ‘compensation’ is derived from the Latin
word ‘compensare’ which means ‘weight together’ or ‘balance’. ‘Compensation’ is shown as
“equivalent in money for a loss sustained or giving back an equivalent in either money which is
but the measure of value, or in actual value otherwise conferred, or recompense in value for
some loss, injury or service especially when it is given by statute”.
A small sentence ‘compensation for crime’ has been defined as:
“Upon conviction a Court may instead of, or in addition to, dealing with him in another way,
may order the defendant to pay compensation for any personal injury, loss or damage resulting
from his offence or any other offence taken into consideration by the Court.”
The word compensation means the affected party has to work out his civil rights through the civil
court. In a criminal case, if the Court found that the affected person is to be compensated to
certain extent the Court may order for compensation, now which is called VC.
S. 357A Terminology

From S. 357A, in sub-section (1) it is found that every State Government in co-ordination with
the Central Government shall prepare a scheme for providing funds for the purpose of
compensation to the VOC who have suffered loss as a result of the crime and who require
rehabilitation. The sub-section (2) deals in a case, if the Court recommended for compensation
the Legal Services Authority (LSA), either State or District, shall decide the quantum of
compensation to be awarded to the VOC. This is because it is considered that LSA members are
the one who can understand the proper quantum of amount to be given to the VOC. Sub-section
(3) has given a more power to the Court, it may order for compensation to the VOC for
rehabilitation, even the compensation ordered u/s 357 is inadequate or if the case is ended with
acquittal or discharge.
• On moving forward, sub-section (4) is yet another protection to VOC. Even if the
offender is not identified or traced and no trial takes place, the VOC may make an application to
the LSA for compensation. It is always said that in India, the justice is delayed to year and
years pass on.
• To overcome this defect in providing compensation to the VOC sub-section (5) is a

directive in nature to the LSA where such recommendation was given by the Court or an
application under sub-section (4) was made, the Authority (LSA) shall, after due enquiry award
adequate compensation by completing the enquiry within two months. The time duration of two
months to LSA helps to give justice on time to the VOC without any delay.
• Sub-section (6) deals with first aid facility or medical benefits available free of cost to the
VOC by the LSA on the certificate of police officer or the Magistrate or any other interim
relief as the appropriate authority deems fit. After this provisions introduced into CrPC, the VOC
need not wait for the trial or judgment and can file a petition for compensation before the LSA
and get compensation to cure his injury without any legal process
On cursory reading of S. 357A, which makes crystal clear that the VOC should be protected even
if the offender is not identified or not traced out or the trial could not take place. S. 357A is a
new law for protection the VOC out of a crime on the basis of respecting his human rights,
where the democratic and welfare State has to protect all human being.
Victim Compensation Concept of Victim - Terminology

The amendment focusing on victim-justice, for the first time sought to define the term “victim”
and refurbish the defunct laws related to provisions of compensation of VOC.20 VOC is a person
who is put to death or subjected to misfortune by another; one who suffers severely in body or
property through cruel or oppressive treatment, one who is destined to suffer under some
oppressive or destructive agency; one who perishes or suffers in health etc., from some enterprise
or pursuit voluntarily undertaken.
The UN General Assembly adopted a Declaration of the Basic Principles of Justice for the
Victims of Crime and Abuse of Power (1985), which gives a comprehensive definition of a
victim. According to the said declaration, victim includes:
“Any person who, individually or collectively, have suffered harm, including physical or mental
injury, emotional suffering, economic loss or substantial impairment of their fundamental rights,
through acts or emissions that are in violations of criminal law, including those laws prescribing
criminal abuse of power”.
The word ‘victim’ had not been defined when the Code was brought into force. However, when
the Code was amended in the year 2009, the definition of word ‘victim’ has been inserted in the
definition clause in S. 2(wa). It defines as:
““victim” means a person who has suffered any loss or injury caused by reason of the act or
omission for which the accused person has been charged and the expression “victim” includes
his or her guardian or legal heir.”
So intention of the legislature is clear that they completely want to compensate the victims even
if the accused is not convicted and also, if possible, the legal guardian and heirs of victims.
In view of it, the VC means the person who suffered the act of another is eligible for
compensation either from the person responsible for the act or from the State. No compensation
can be adequate nor can it be of any respite for the VOC but as the State has failed in protecting
such serious violation of a VOC’s fundamental right, the State is duty bound to provide
compensation which may help in the VOC’s rehabilitation.
It is a fundamental duty of the State to prevent crime and protect its people and property. If the
State fails to prevent crime, then it has to pay compensation to the VOC. According to Jeremy

Bentham, “due to the presence of the social contract between the State and the Citizen, VOC
should be compensated when their property or person was violated”. Thus modern approach of
victimology acknowledge that a VOC has right to be adequately compensated, rehabilitated and,
repaired irrespective of identification and prosecution of offender and the paymentof such
compensation should be made by state.
Various justifications for compensation have been used, such as:
“benefit to the victims, symbolic social recognition for the victims suffering, deterrent effects on
the offender as also the reformative effects on the offender as the paying of compensation has an
“intrinsic moral value of its own.”
Rehabilitation of the prisoner need not be by closing the eyes towards the suffering VOC. A
glimpse at the field of victimology reveals two types of VOC. First type consists of direct VOC,
i.e. those who are alive and suffering on account of harm inflicted by the prisoner while
committing the crime. Second type comprises of indirect VOC, who are dependent of the direct
VOC, who undergo suffering due to deprivation of their bread winner.
Indian Laws on VC
The COI has several provisions which highlight the principle of VC. The articles dealing with
Fundamental Rights, and Directive Principles of State Policy, laid down foundation for a new
social order in which justice, social and, economic would flower in the national life of the
country.Article 41 mandates inter alia that the State shall make effective provisions for “securing
the right to public assistance in cases of disablement and in other cases of undeserved want.
Article 51-A makes, it shall be the fundamental duty of every citizen to have compassion for
living creatures and to develop humanism. If emphatically interpreted and imaginatively
expanded. These provisions can form the constitutional underpinning for victimology.
Article 21 of the COI, if, liberally interpreted and properly expanded, we can find the
constitutional beginning of victimology. It is the responsibility of the State to compensate the
VOC properly. Right of access to justice under Article 39-A,32 and principle of fair trial
mandate right to legal aid to the VOC for claiming compensation. In the case of D.K.Basu, the
Supreme Court, held, monetary compensation for redressal by the Court is useful. It is perhaps

the only effective remedy to ‘apply balm to the wounds’ of the family members of the deceased
VOC, who may have been the breadwinner of the family.
There are six possible statutes under which compensation may award to VOC. They are:
(i) Fatal Accident Act, 1855.
(ii) Constitutional remedies for human right violations under Article 21 of

the Constitution of India, 1950.
(iii) Probation of Offenders Act, 1958.
(iv) Motor Vehicles Act, 1988.
(v) Code of Criminal Procedure, 1973.
(vi) Protection of Women from Domestic Violence Act, 2005. Role of the Judiciary on VC
In a democratic country, like India, the ultimate arbiter to any dispute is the Judiciary. For
determining VC the judiciary plays a pivotal role. In this chapter the role of the Apex Court has
been taken for discussion.
Scope & Object of S. 357A
In a recent case of V.C.S. Manohar Singh v. State of Rajasthan and Others (2015) 42 SCD 303.,
it was held that if the accused is not able to compensate the VOC or his legal representative then
the LSA will be forced to pay the compensation amount on the basis of the particular
StateVictim Compensation Schemes (VCSs).
• In Suresh and Another v. State of Haryana, AIR 2015 SC 518, it wasobserved that the
object and purpose of the provisions of S. 357A is to enable the Court to direct the State to pay
compensation to the VOC where the compensation u/s 357 was not adequate or where the case

ended in acquittal or discharge and rehabilitated. The provision has received the attention ofthe
Apex Court in several decisions. There is no reason as to why the VOC’s family should not be
awarded compensation under S. 357A by the State. Thus, the Court is of the view that the State
of Haryana is liable to pay compensation to the family of the deceased.
• The Court determined the interim compensation payable for the two deaths to be rupees
ten lacs, without prejudice to any other rights or remedies of the VOC family in any other
proceedings.
Interim Compensation – Court’s Duty
The Apex Court of the firm opinion that it is the duty of the Courts, on taking cognizance of a
criminal offence, to ascertain whether there is tangible material to show commission of crime,
whether the VOC is identifiable and needs immediate financial relief. On being satisfied on an
application or on its own motion, the Court ought to direct grant of interim compensation,
subject to final compensation being determined later. Such duty continues at every stage of a
criminal case where compensation ought to be given and has not been given, irrespective of the
application by the VOC. At the stage of final hearing it is obligatory on the part of the Court to
advert to the provision and record a finding whether a case for grant of compensation has been
made out and, if so, who is entitled to compensation and how much.
Award of such compensation can be interim. Gravity of offence and need of VOC are some of
the guiding factors to be kept in mind, apart from such other factors as may be found relevant in
the facts and circumstances of an individual case. The Court is of the
view that there is need to consider upward revision in the scale for compensation and pending
such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the
scaleawarded by any other State or Union Territory is higher.
In the case of Abdul Rashid, the question for consideration is as to whether the responsibility of
the State ends merely by registering a case, conducting investigation and initiating prosecution?

And whether apart from taking these steps, the State has further responsibility to the VOC.
Further question is whether the Court has legal duty to award compensation irrespective of
conviction or acquittal. The Court went on discussion that VOC expects a mechanism for
rehabilitative measures, including monetary compensation. Such compensation has been
directed to be paid in public law remedy under Article 21 of the COI. The amount of
compensation may be worked out at an appropriate forum inaccordance with the said Scheme,
but pending such steps being taken, interim compensation ought to be given at the earliest in any
proceedings.
The Apex Court in a recent case NipunSaxena, has upheld the directions issued by the Calcutta
High Court as annexure – 1 to its judgment, where a case arose under the POCSO Act the court
has to consider to pass an order for interim compensation to the VOC. At the time of final
judgment the Court has to pass a reasoned order for VC after adjusting the interim compensation
already ordered to the VOC. It has also held that the interim/final compensation shall be paid
either from the VC fund or any other special scheme/fund established u/s 357A of the Code or
any other law for the force through the SLSA or DLSA in whose hands the Fund is entrusted.
time being in VC on Destruction of Public and Private Property
In Kodungallur Film Society and Another v. Union of India,68 the petitioners have filed a writ
petition in the backdrop of mob violence, protests and demonstrations which erupted across the
nation in the recent past, especially against cultural programmes and establishments and the
ensuing damage (compensation) to public and private properties arising out of such violence.
After considering all the aspects of facts and law and further reference to its earlier decision In
Re: Destruction of Public and Private Property v. Government of A.P., the Court had passed
various directions including to assess damages and award compensation to the VOC as per the
direction in para 15 of the judgment in In Re: Destruction of Public and Private Property (supra).
The relevant passage of the judgment in Kodungallur Film Society (supra) as found in para 16 as
thus:

Compensation
a) The person/persons who has/have initiated, promoted, instigated or any way caused to
occur any act of violence against cultural programmes or which results in loss of life or damage
to public or private property either directly or indirectly, shall be made liable to compensate the
victims of such violence.
b) Claims arising out of such acts of violence should be dealt with in the manner prescribed
in paragraph 15 of In Re: Destruction of Public and Private Properties (supra).
c) This compensation should be with regard to the loss of life or damage done to any public
or private properties, both movable and immovable.”
No Further Enquiry as Envisaged u/s 357A
In the case of Eera Through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) and
Another,held, when the accused has breathed his last and there is a medical certificate from
AIIMS as regards the mental disability of the VOC, there should be no further enquiry as
envisaged u/s 357A of Code. The court further held in para 88 as:
“88. … … On a perusal of the aforesaid provision, itis quite vivid that when Court makes a
recommendation for compensation, the District Legal Services Authority or the State Legal
Services Authority is required to decide the quantum of compensation to be awarded under the
Scheme prepared by the State Government in coordination with the Central Government. The
State/District Legal Services Authority has to conduct an inquiry and award the adequate

compensation by completing the inquiry. Had the accused been alive, the trial would have taken
place in a Court of Session as provided under the CrPC. As the accused has died and the victim
is certified to be a mentally disabled person and is fighting the lis for some time to come within
the purview of the POCSO Act wherein the trial is held in a different manner and the provisions
relating to the compensation are different, I direct that the State Legal Services Authority, Delhi
shall award the compensation keeping in view the Scheme framed by the Delhi Government. As
regards the quantum, I am of the convinced opinion that it is a fit case where the victim should
be granted the maximum compensation as envisaged under the Scheme. I clarify that it is so
directed regard being had to the special features of the case.”
Ordering VC is a Rule; Not Obligatory
In the case of Suresh and Another v. State of Haryana, the Supreme Court observed in para 13
that 25 out of 29 State Governments have notified compensation schemes. The schemes specify
maximum limit of compensation Rs.3,00,000/- and subject to maximum limit, the discretion to
decide the quantum has been left with the LSA. Even though almost a period of five years has
expired since the enactment of S.357A, the award of compensation has not become a rule and
interim compensation, which is very important, is not being granted by the Courts. It has also
been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily
low and is not in keeping with the object of the legislation.
Rape Victim Compensation Scheme- Directions

In the case of Tekan @ Tekram v. State of Madhya Pradesh, AIR 2016 SC 817. the different
States and the Union Territories VCSs made clear that no uniform practice is being
followed in providing compensation to the rape victim for the offence and for her rehabilitation.
While going through different schemes for relief and rehabilitation of victims of rape, the Court
had also come across one Scheme made by the National Commission of Women (NCW) on the
direction of the Apex Court in Delhi Domestic Working Women’s Forum v. Union of India and
Others, (1995) 1 SCC 14. whereby the Apex Court inter alia directed the National Commission
for Women to evolve a “scheme” so as to wipe out the tears of unfortunate victims of rape. This
scheme has been revised by the NCW on 15th April 2010.
The application under this scheme will be in addition to any application that may be made under
Ss. 357 and 357A of the Code as provided in paragraph 22 of the Scheme. Considering the facts
and circumstance of the case the Court has issued directions that all the States and Union
Territories shall make all endeavour to formulate a uniform scheme for providing VC in respect
of rape/sexual exploitation with the physically handicapped women as required under the law
taking into consideration the scheme framed by the State of Goa for rape VC. Further held in
para18:76
“18. The victim, being in a vulnerable position and who is not being taken care of by
anyone and having no family to support her either emotionally or economically, we are not
ordering the respondent-State to give her any lump sum amount as compensation for
rehabilitation as she is not in a position to keep and manage the lump sum amount. From the
records, it is evident that no one is taking care of her and she is living alone in her Village.
Accordingly, we in the special facts of this case are directing the respondent- State to pay
Rs.8,000/- per month till her life time, treating the same to be an interest fetched on a fixed
deposit of Rs.10,00,000/-. By this, the State will not be required to pay any lump sum amount to
the victim and this will also be in the interest of the victim.
Criminal Injury Compensation Board– Acid Attack Victim

As on seeing that there is no proper background to give compensation to the VOC, it was fully
based on the reasonability which was seen by the Court in which the case is presented. To
overcome this default in Indian CJS the Apex Court directed the Central/State Government to
come up with a structured VCS. For acid attack victim the compensation to be determined by the
Criminal Injury Compensation Board (CICB) as directed by the Supreme Court in Laxmi v.
Union of India. In the said decision the Court has issued directions that the hospital, where the
victim of an acid attack is first treated, should give a certificate that the individual is a victim of
an acid attack. This certificate may be utilized by the victim for treatment and re-
constructive surgeries or any other scheme that the victim may be entitled to with the State
Government or the Union Territory, as the case may be.
Mob Violence Victim Compensation–Guidelines
• In Tehseen S. Poonamalla v. Union of India, CDJ 2018 SC 739 what really emanates as
the pivotal issue requiring the Court’s contemplated consideration is the duty of the Court under
the constitutional framework to deal with the primary grievance that pertains to cow vigilantism
and other incidents of lynching or, if we may say so, targeted violence and commission of
offences affecting the human body and against private and public property by mobs under the
garb of self-assumed and self- appointed protectors of law.
On considering the various aspects and the law on this line, the Court had framed some
guidelines for registration of FIR, police investigation, trial of cases, damages and VC etc. The
Court has framed remedial measures and sub para (iv) runs as:
“(iv) The State Governments shall prepare a lynching/mob violence victim compensation scheme
in the light of the provisions of Section 357A of CrPC within one month from the date of this
judgment. In the said scheme for computation of compensation, the State Governments shall give
due regard to the nature of bodily injury, psychological injury and loss of earnings including loss
of opportunities of employment and education and expenses incurred on account of legal and
medical expenses. The said compensation scheme must also have a provision for interim relief to
be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the
incident of mob violence/lynching.”
Victim Compensation Schemes (VCSs)

International Obligations
India is a signatory to several international human rights instruments such as the Universal
Declaration of Human Rights, International Covenant on Civil and Political Rights, International
Covenant on Economic, Social and Cultural Rights, and the Convention oneliminating all forms
of Discrimination against Women and Children. These conventions impose on India the
obligation of offering an effective CJS to its citizens. This includes the concept of legal remedy
such as compensation.
Support for VCSs
The well known Indian jurist Justice V.R. KRISHNA IYER fore grounded CJS and advocated
the victim right for reparation as: apathy of the “It is a weakness of our jurisprudence that the
victims and the distress of the dependents of the prisoner do not attract the attention of law.
Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in
the system which must be rectified by the Legislature. We can only draw attention in this
matter.”
On the recommendation of the judiciary and the LCI Reports, particularly Justice Krishna Iyer,
the legislature introduced a scheme, VCS under the CrPC by introducing S. 357A in the year
2009. This scheme helps the judiciary to render the compensation to the VOC. The VCSs in
India must be treated as an institution larger than S. 357A. It must envision a program that
harmoniously ties criminal provisions, civil remedy, rehabilitative support, role of courts and
State accountability.
Manodhairya Scheme
In India, the term for compensating the VOC was coined up by the Maharashtra non-
governmental organization (NGO) by the yojana known as “Manodhairya Yojana” in which the
NGO used to give amounts of money to overcome the misfortune or the damages they face in
their life. Further this Manodhairya Yojana was accepted by the Maharashtra government and

they launched the ‘Manodhairya Scheme’ for the VOC. Under this scheme State was supposed to
provide compensation between 2 and 3 lakhs to the subsisted. The subsisted would not only
receive the medical treatment but also a certain amount to overcome the misfortune in his life.
Nirbhaya Fund Scheme
The Central government has adopted measures to realise the accessibility of compensation to
VOC. The Criminal Law (Amendment) Act, 2013 was enacted on 2nd April, 2013 to address the
inadequacy in law relating to sexual offences of women and children. It led to the creation of a
dedicated fund known as the Nirbhaya Fund. As per the guidelines issued on 25th March, 2015
the Ministry of Women and Child Development is the nodal Ministry to appraise and
recommend the proposed schemes under Nirbhaya Fund. It also reviews and monitors the
progress of sanctioned schemes in conjunction with the related Ministries/Departments.
Central Victim Compensation Fund Scheme
The Central government introduced a Central Victim Compensation Fund (CVCF) Scheme with
an initial corpus of Rs.200 Crores to enable support to victim of rapes, acid attacks, human
trafficking and women killed or injured in the cross border firing, suffering permanent or partial
disability or death etc. The key features including aims and objectives of CVCF are given below:
• To support and supplement the existing VCSs notified by States/Union Territories (UTs)
administration.
• To reduce disparity in quantum of compensation amount notified by different States/UTs

for victims of similar crimes; and
• To encourage States/UTs to effectively implement the VCSs notified by them under the
provisions of S.357A of CrPC and continue financial support to victims of various crimes
especially sexual offences including rape, acid attack, crime against children, human trafficking
including women victims of cross border firing, etc.
The Way Forward
Law should not sit simply, while those who defy it go free and those who seek its protection lose
hope.The law in S. 357A of the CrPC must witness a marriage of the State and the Courts in

functioning harmoniously to alleviate the plight of the VOC. As responsible citizens, we must
constantly remind the consciousness of justice that it owes a sacrosanct obligation towards the
rehabilitation of a VOC.
Justice D.P. WADHWA, former judge of the Supreme Court of India reminded us that in our
efforts to look after and protect human rights of a convict we should not forget a VOC - a
‘forgotten man’ in the criminal justice system - and his reparation and rights. “Criminal Justice”
his Lordship stressed, “would look hollow if justice is not done to the victim of the crime”.
With the development of the concept of welfare state it is now being increasingly felt by
criminologists, social thinkers and, jurists that the administration of criminal justice should be
such as would enable the VOC to get his redress more expeditiously and adequately within the
CJS itself rather than through a long winding civil litigation against the individual offender.
Moreover, the State having failed to give protection to its citizens, ought not to shy away from its
responsibility to rehabilitate the VOC by making adequate compensation for the loss suffered
especially when the offender is unidentified or it so indigent that nothing substantial can be
recovered from him by way of reparation.
The judiciary has, through the cases decided by it, propounded a set of principles to provide the
remedy of compensation.Though some rights have been granted to VOC in CJS but still more is
required to give such VOC a fair and respectable status.
A holistic VCS must encompass assistance through the process of prosecution, psychological
support and rehabilitative measures to integrate the VOC back into the norm of society. There
must be a channel for inviting and recording funds received from various international
organizations and public towards this purpose.
Now, the policy of our CJS is RJ to VOC oriented and we have to a certain extent incorporated
the idea of compensatory criminal jurisprudence. The judiciary has to be urged to be liberal in
invoking S. 357A and ensure that it is not the non- exercise of discretion by them. The attitude of
judiciary needs to be changed. The Apex Court in India has set a trend of compensatory criminal
justice jurisprudence, which in effect is developing the ground towards RJ in our CJS.

So far little attention has been paid to the fact that VC is a form of VOC assistance in meeting
financial, physical, emotional and social needs, and has played a vital role in VOC recovery.
Even less attention has been paid to possible role VC have in future VOC assistance
efforts.Simply punishing the offender doesn’t complete the wheel of criminal justice. In modern
times, it is very important for every CJS that it focuses on the victimology. Monetary assistance
or compensation to the VOC is of great significance because with this we can balance the social
cost, physical that VOC suffer during and after the crime. damage, and mental trauma.
Intangible cost i.e. indirect losses suffered by VOC such as pain and suffering, social neglect and
psychological distress many times left unanswered. The VOC such as rape, sexual assault, face
disfigured by throwing of acid and indecent exposure suffers avoidance of people and social
withdrawal. Thus, there is a need of maintaining the social cost of such VOC. The criminal
law must work on the restitution of VOC to their original position.
There is a need to take a fresh look and understand the situation and position of VOC. No
one can deny that the VOC rights are not available. Many times State even to compensate the
VOC but still some more rights is required. The agencies of the CJS should be receptive to the
needs of the VOC and address their issues sincerely and emphatically.
Malimath Committee suggested many rights of the VOC and recommended that states to make
enactments for financial assistance and compensation to the VOC. The committee also
focused in the need of change in existing CJS. It is the responsibility of both Central and State
Governments to implement those recommendations.
Now, the trial Courts have started to apply VC as per S. 357A in its judgment/order. The District
Judiciary, which is a pillar of the entire judicial edifice, more particularly the young judicial
officers, have always been most concerned about the VOC and applying S. 357A, which is ever
welcome one.
Suggestions
Analysing the CJS, RJ, VC, VCSs, VOC, and the ApexCourt’s decisions, it is appropriate to
make few suggestions:
• Notice to the VOC is must in bail application proceedings, pre trial stage and post trial

i.e. sentencing stage.
• Necessary information of the case, particularly about the accused be given to the VOC at
the earliest.
• Providing free legal aid assistance to the VOC for claiming VC.
• Wide Awareness of VCSs is to be given through print and electronic media, including
social media.
• By periodical trainings/seminars/workshop etc., be given to sensitize the police personnel

and officers, judicial staff and officers, LSA staff and officers, advocates, NGOs and other
spirited persons involved in the CJS to get VC in time.
• Measures to be taken to minimize the inconvenience to VOC and protect their privacy,
identity, safety.
• Delay in payment of VC to the VOC should be avoided at all costs.
• The coordination between the various limbs of justice i.e. the courts, the police, the LSA
must be streamlined.
• Each instrument must inform and assist the VOC in realizing VC.
• Further, the courts themselves must make recommendations for compensation in cases its
wisdom considers such assistance necessary.
Conclusion
From analyzing the statutory provisions and judicial directions it could be concluded that the
Court, which has criminal jurisdiction, to award VC to the VOC or victim’s legal heirs or

dependents under the VOC before or after concluding the trial. S. 357A deals with fiscal help to
the VOC. On the other side, the VC be awarded must be given in the span of two months without
any delay.
The insertion of S. 357A is recognizing the victim’s right to receive reasonable compensation
even if the case could not be ended with conviction. This shows that the concept of human rights
and social justice of the VOC is recognized in India at par with other parts of the world.
• On analyzing the various VCSs been established, as per the mandate of S. 357A as well
as the directions of the Apex Court, it would be lighthouse to the needy and the District judiciary
for application of VC in a right direction with right time. Because of this amendment now each
State has its own VCSs. On the basis of this scheme LSA have been given wide power to
determine the quantum of compensation on the facts and circumstance of the case or VOC.
VC ordered u/s 357A in any of the VCSs, discussed supra, is a separate one apart from the
Court order for compensation from the fine amount u/s 357 of CrPC. Even after VC ordered by
the LAS u/s 357A of CrPC, the Court can order compensation to the VOC by invoking S. 357 of
CrPC either from the fine imposed under sub-section (1) or separate compensation under sub-
section (3).
In S. 357A a duty was cast upon the Court even if the case would be ended with an acquittal or
the accused is not traceable and where no trial takes place the Court may order for either interim
or final VC to be assessed either by the DLSA or SLSA and to pay it. This would be given
guarantee in the minds of VOC that his right has been protected. The Judges, who are dealing
with criminal cases of original jurisdiction, have to consider the case and pass an appropriate VC
order to the needy.
The Chairman of the DLSA and the Member Secretary of the SLSA, who are in the cadre of
District Judges, have to look into the applications received from the parties or direction from the
Court and to conduct enquiry with reference to the schemes, where the case applies to the
specific scheme and to pass an order for VC at the earliest to help the VOC to overcome from the
wounds of the crime.

At last this amendment would help the VOC to forget the incident in his life and overcome with
the injury and mental agony. S. 357A has a social purpose to serve and has to be applied in
appropriate cases. S. 357A is one of the welfare legislations to the VOC. Timely payment of VC
is also achieving the concept of natural justice, constitutional justice, human rights justice,
economic justice, much less social justice to victim.
4.4 THE POOR AND RIGHT TO DIE: DISCOURSE ON SUICIDE AND EUTHANASIA
• India has the highest suicide rate in the world after China, with 371 suicides taking place
every day. The ‘right to die’ is in accordance with a capitalistic, property-oriented outlook which
prefers to treat everything, including the human body, organs and even emotions, as a
commodity.
• The apex court has givena landmark judgment on ‘right to die’ but then it is not a clear
recognition of ‘right to die’ as part of right to life but a limited right in the form of passive
euthanasia. Even active euthanasia has not been validated.
• Of course, the court has also permitted ‘living will’ and ‘advance directive’. CJI Dipak
Mishra rightly flagged the primary issue, i.e., whether the law permits accelerating the process of
dying, sans suffering, when life is on the path of inevitable decay and if so, at what stage and to
what extent?
• In fact in the last 24 years starting with P. Rathinam(1994), the Indian Supreme Court has
given as many as four judgments on this subject, the latest being Common Cause v. Union of
India (March 9, 2018). Common Cause India is the NGO founded by leading social litigation
lawyer Prashant Bhushan.
• Suicide has been an act of great commendation as well as strong condemnation and
therefore these judgments discuss philosophy, morality, ethics and law at length. This judgement

basically makes the distinction between letting a patient die and making him die abundantly clear
with examples from entire world.
• The best part of the judgement is that it has taken human dignity, autonomy and self-
determination to such a level that the government should start worrying about the impending
Aadhar verdict, particularly since the same five judges are hearing the Aadhar matter and have
issued an interim order which has indefinitely extended the deadline of linking of Aadhar with
PAN and mobile till the judgement is delivered by them.
• The court has conceded that at times the State’s interest has to make way for the
individual choice. The court has admitted that right to live with dignity includes easing the
process of dying in case of a terminally ill patient or a person in a persistent vegetative state
(PVS) with no hope of recovery. To deprive individual dignity towards the end of one’s life has
been accepted as denying meaningful human existence.
Previous rulings on the right to die and passive euthanasia
• In the first judgement in 1994, a two-judge bench held that right to life includes right to
die as every fundamental right has both positive as well as negative connotations. Thus, just like
right to free speech includes right to silence, similarly right to life includes right to die.
• Within two years of this ruling, a five judge bench headed by Justice JS Verma, hearing
the Gian Kaur case in 1996, which arose from a conviction for abetment of suicide, overruled
this judgement and declared Section 309 of Indian Penal Code, which punishes attempt to
suicide, and Section 306 which punishes abetment to suicide, constitutional. The court said that
the sanctity of life cannot be overlooked.
• The Gian Kaur case did not specifically deal with euthanasia. But it extrapolated from the
earlier judgement that the right to live with dignity includes the right to a dignified life up to the
point of death as well as a dignified procedure of death. Thus, it may include the right of a dying

man to die with dignity as his life is ebbing out. But the court categorically rejected ‘right to die’
when it referred to unnatural death curtailing an individual’s natural lifespan. Dying with dignity
was thus recognised in 1996 during the Gian Kaur hearing.
• In 2011, another two-judge bench headed by Justice Katju validated passive euthanasia
during the hearing of the case of Aruna Shanbaug despite the non-existence of any statutory
basis. However, nurse Aruna, who was in coma for 38 years, did not gain any relief since the
judges concluded that she still had some life left in her, on the basis of doctor’s report. Aruna
finally died in 2015.
• On February 25, 2014, a three-judge bench while agreeing with Justice Katju that as per
the Gian Kaur decision, euthanasia in India can become lawful only through legislation, noted
inherent inconsistencies in the Aruna decision and made a reference to a five judge bench.
Further, departing from the well-established practice of framing the issues for a larger bench,
they referred the entire matter to the constitution bench as euthanasia involves social, legal,
medical and constitutional dimensions. The latest judgement is in response to this reference.
• In the latest judgement, the five-judge bench headed by Chief Justice Dipak Misra has
unanimously yet again upheld passive euthanasia. The court devoted too much time for
clarifying that it had not considered and approved of the House of Lords decision in Airedale
NHS Trust v. Bland (1993), which had held that euthanasia could be made lawful only by
legislation.
• It was in the Bland ruling that for the first time in English history right to die by
withdrawal of life-support system was recognised. The latest judgement said that the Gian Kaur
case quoted the Bland judgment only as a passing reference. CJI Misra explicitly said that “we
unequivocally express our opinion that Gian Kaur is not a binding precedent for the purposes of
laying down the principle that euthanasia can be made lawful only by legislation.”
• But then the court did say, in so many words, that detailed guidelines it lays down will
hold only till the Parliament legislates on this subject. This fine point may not impress the

common people, but legal fraternity will certainly appreciate the fine point forcefully made in the
four judgements.
An informed patient and an elitist problem
• However, the bench also agreed with Justice Katju that autonomy means self-
determination and an informed patient should have right to decide his treatment. To be
autonomous, hence, the patient should be competent to make his decisions and choices. He will
have the right to refuse treatment.
• In the event that he is incompetent to make choices, his wishes expressed in advance in
the form of a living will, or the wishes of surrogates acting on his behalf are to be respected.
Justice Sikri’s observation that with Section 115 of Mental Healthcare Act (2017), attempt to
suicide is no more punishable under Section 309 of IPC may not entirely correct as this creates
an assumption that every person attempting suicide shall be deemed to be under ‘severe stress’
and shall not be tried and punished. The Act strangely gives no definition of ‘severe stress.’
• One obvious comment, which has been admitted even by some of the learned judges in
the latest ruling, including Justice DY Chandrachud, is that the problem of euthanasia is an elitist
one in the sense that most of these facilities are not available to poor people.
• Thus, even though only rich people can afford life support system, this subject receives
maximum media and judicial attention. Other judges such as Justice AK Sikri discussed the
economics of euthanasia in the context of high cost of medical treatment in India. The learned
judges were worried about how poor people will be able to afford exorbitant health care cost and,
thus, the passive euthanasia validated by this judgement.
• He rightly observed: “India is one of the worst countries to die in, especially for those
suffering from terminal illnesses. In 2015, the Economist Intelligence Unit brought out a Quality
of Death Index, which ranked India 67th out of the 80 countries it had surveyed. In December

2017, a joint report published by the World Health Organisation and the World Bank revealed
that 49 million Indians are pushed into poverty every year due to out-of-pocket expenditure on
healthcare, accounting for half of the 100 million who meet such a fate worldwide.”
• He went on to say that “India’s spending on health is among the lowest in the world. The
Economic Survey of 2017–18 shows that the government spends only 1.4% of its gross domestic
product on health.” The court admitted that public health system is in shambles and only rich can
afford treatment in the private hospital.
Drawing from our mythology
• Both the P.Rathinam judgement as well as the latest one have given lot of prominence to
religions and their views on suicide and death. Ideally, the highest court of a secular country
should not give much credence to religious texts and our judgements should avoid religious
discourse. During the Rathinam case, the court observed that “insofar as our country is
concerned, mythology says Lord Rama and his brothers took jalasamadhi in river Saryu near
Ayodhya; ancient history says Buddha and Mahavira achieved death by seeking it.”
• In the latest judgement Justice Ashok Bhushan, quoting the Bhagwad Gita, said that
“according to Hinduism, life never comes to an end. The soul never dies although body may
decay.” Due to sanctity of life, one cannot take another person’s life but the person concerned
can in certain situations take his own life.
• The learned judge went on to observe that Vedic rules forbid suicide but in one’s fourth
ashrama i.e., vanprastha, one can go to a forest and survive just on air and water to bring an end
to life. He then quoted the controversial Manu who said that a Brahmin can get rid of his body
by drowning in water, leaping from heights, burning or starving to death. He and Justice Sikri
briefly mention other religions such as Jainism, Buddhism, Christianity and Islam and noted that
Jainism permits ‘sallkhana’ or fast unto death and Buddha too allowed self-inflicted death for a
terminally ill person.

Legal active and passive euthanasia around the world
• Active euthanasia is legal in Canada, the Netherlands, Switzerland. In the United States,
active euthanasia is illegal but physician-assisted death is legal in the States of Oregon,
Colorado, Vermont, California, Washington and Montana.
• A distinction has been drawn between euthanasia and physician- assisted suicide. In both
Oregon and Washington, only self- administration of the lethal dose is permitted. Any form of
assistance to help a person commit suicide outside the provisions of the legislation remains a
criminal offence.
• Physician-assisted suicide is an entirely different concept where the patient carries out the
procedure leading to his death though on the advice of his doctor. Passive euthanasia, under
those circumstances where a patient is in PVS and terminally ill, where the condition is
irreversible, or where he is brain-dead is permitted in India.
• The 241st Law Commission report favoured passive euthanasia, subject to certain
safeguards. A competent adult patient has the right to refuse invasive medical treatment by way
of artificial life sustaining measures/ treatments.
• Such a decision is binding on the doctors/ hospital attending to such a patient, provided
that the doctor is satisfied that the patient has taken an ‘informed decision’ exercising his will. A
medical power of attorney is an instrument through which people nominate representatives to
make decisions regarding their medical treatment at a point in time when they are unable to make
informed decisions themselves. However, Clause 11 of the draft Treatment of Terminally-Ill
Patients (Protection of Patients and Medical Practitioners) Bill (2016) states that any directives
or medical power of attorney shall be void and of no effect, which is unfair and unreasonable.

• Active euthanasia is defined as the administration of a lethal substance or force to kill a
person i.e., a lethal injection given to a person suffering from agony in a terminal state of cancer.
• Passive euthanasia on the other hand means the withholding or withdrawing of medical
treatment necessary for continuance of life like removing the patient from artificial heart/lung
support or even withholding antibiotics without which the patient may die. Thus, in passive
euthanasia life sustaining treatment is not provided. This ‘omission’ is not considered as cause of
death and death is attributed to the patient’s underlying condition.
• The court has overlooked the fact that poor people are never put on life support systems
nor get to make living will. Justice Chandrachud highlighted that the distinction between an
‘act’ and an ‘omission’ gets blurred at times and in fact ‘omission’ may indeed amount to a
positive act in some situations. In any case, illegal omissions are punishable under IPC.
• Another vital distinction pointed out by Justice Chandrachud was that in active
euthanasia, there is an intent to cause death (mens rea) while in passive euthanasia there is no
guilty mind or intent. Moreover since in passive euthanasia, a doctor neither causes bodily injury
nor death, his act can neither be considered murder nor culpable homicide. The patiently merely
dies due to a pre-existing medical condition.
• A living will has useful functions. It gives moral and social reassurance to the family
members that the decision to withdraw treatment was in accordance with the patient’s free will.
The living will has now been recognised as part of right to live with dignity under Article 21.
• The choice of treatment should be expressed in the will when a person is in a sound
mental state. A “best standard” test has been adopted by giving a supervisory oversight role to an
expert body.
• It is interesting to note that The Mental Healthcare Act 2017 had already recognised
living wills and advanced directives. In the US, advanced directives were recognised for the first
time in 1976 when California passed the Natural Death Act. Today 48 out of 50 states have laws

permitting advance directives. Finally, the court has overlooked the fact that poor people are
never put on life support systems or get to make living will.
• Only rich people will benefit from this judgement. In fact there is a real possibility of
poor people being declared ‘brain- dead’ and their organs being made available to rich people.
The detailed and very stringent guidelines laid down by the court in the best interest of people
may meet the same fate as guidelines under Organ Transplantation Act. Despite or possibly
because of the economic slowdown, when the entire job-market is down, organ trade is still
thriving and may now get a fresh impetus.
• The real issue for poor is denial of food due to Aadhaar. So many starvation deaths have
taken place. Let us hope the court will do complete justice in this matter of life and death.
4.5 LEGAL SERVICES FOR THE POOR

• Whatever standards a man chooses to set for himself, be they religious, moral, social or
purely rational in origin, it is the law which prescribes and governs his rights and duties towards
the other members of the community.
• This somewhat arbitrary collection of principles he has very largely to take as he finds
and in a modern society it tends to be so diverse and complex that the help of an expert is often
essential not merely to enforce or defend legal rights but to recognize, identify and define them. -
Mathews and Outton
• The Encyclopedia Britannica defines legal aid as phrase which is acquired by usage and
court decisions, a specific meaning of giving to person of limited means grants or for nominal
fees, advice or counsel to represent them in court in civil and criminal matters. Inability to
consult or to be represented by a lawyer may amount to the same thing as being deprived of the
security of law. Rawls first principle of justice is that each person is to have an equal right to the
most extensive total system of equal basic liberties compatible with a similar system of liberties
for all.
• Legal Aid is the method adopted to ensure that no one is debarred from professional
advice and help because of lack of funds.Thus, the provisions of legal aid to the poor are based
on humanitarian considerations and the main aim of these provisions is to help the povert-
stricken people who are socially and economically backward.
• Lord Denning while observing that Legal Aid is a system of government funding for
those who cannot afford to pay for advice, assistance and representation said: The greatest
revolution in the law since the post-second World has been the evolution of the mechanism of
the system for legal aid. It means that in many cases the lawyers fees and expenses are paid for

by the state: and not by the party concerned. It is a subject of such importance that I venture to
look at the law about costs-as it was-as such it is-and as it should be.
International Status
• Over seven centuries ago, the beginnings of equal justice under the law were marked by
the inscription in the 40th paragraph of the Magna Carta: To no one will we sell, to no one will
we deny or delay right or justice. Thus on the green meadows of Runnymede was sown the
constitutional seed of legal aid in the modern world which has travelled to all the continents as
part of civilized jurisprudence.
• The international concern for human rights found expression, after the First World War in
covenants of the League of Nations and further in the Declaration of Human Rights, the
Conventions which followed specifically incorporated the concept of legal aid.
India
• Humanism, which is the source and strength of legality, is writ large in the theme of legal
services to the poor in that part of our planet where backwardness and indigence have struck the
hardest blows through the legal process itself on the lowly and the lost.
• Pre-British India had practiced constitutional monarchy and the days of the Hindu and
Muslim rulers had witnessed unsophisticated methodology of dispensing justice to the poor,
inexpensively and immediately. In short, justice to the citizens-high and low-has been an Indian
creed of long ago.

• After Independence schemes of legal aid was developed under the aegis of Justice N.H.
Bhagwati, then of Bombay High Court and Justice Trevore Harris of Calcutta High Court. The
matter of legal aid was also referred to the Law Commission to make recommendations for
making the legal aid program an effective instrument for rendering social justice. Coming up
with recommendation in its XIV report, under the leadership of leading jurist M.C. Setalvad, the
Commission opined that free legal aid is a service which should be provided by the State to the
poor.
• The State must, while accepting the obligation, make provision for funds to provide legal
aid. The legal community must play a pivotal role in accepting the responsibility for the
administration and working of the legal aid scheme. It owes a moral and social obligation and
therefore the Bar Association should take a step forward in rendering legal aid voluntarily.
• These would include representation by lawyers at government expenses to accused

persons in criminal proceedings, in jails, and appeals. The Commission also recommended the
substitution in Order XXXIII, Civil Procedure Code of the word pauper with poor persons.
Acting on the recommendations of the Law Commission, the Government of India in 1960
prepared a national scheme of legal aid providing for legal aid in all courts including tribunals. It
envisaged the establishment of committees at the State, District and Tehsil level. However due to
the inability of States to implement the scheme because of lack of finances the scheme did not
survive.
• Meanwhile the judicial attitude towards legal aid was not very progressive.
• In Janardhan Reddy v. State of Hyderabad and Tara Singh v State of Punjab, the court,
while taking a very restrictive interpretation of statutory provisions giving a person the right to
lawyer, opined that this was, a privilege given to accused and it is his duty to ask for a lawyer if
he wants to engage one or get his relations to engage one for him.

• The only duty cast on the Magistrate is to afford him the necessary opportunity (to do so).
Even in capital punishment cases the early Supreme Court seemed relentless when it declared
that it cannot be laid down in every capital case where the accused is unrepresented the trial is
vitiated. Thus it can be pointed out that newly Independent India was not clear about the broad
perspective of its legal aid programme.
• For again trying to revive the programme, the Government of India formed an expert
committee, the Krishna Iyer Committee, in 1973 to see as to how the states should go about
devising and elaborating the legal aid scheme. The committee came out with the most
systematic and elaborate statement regarding establishment of legal aid committees in each
district, at state level and at the Centre. It was also suggested that an autonomous corporation be
set up, law clinics be established in Universities and lawyers be urged to help.
• The Government of India also appointed a committee on judicature under the

chairmanship of Justice P.N. Bhagwati to effectively implement the legal aid scheme. It
encouraged the concept of legal aid camps and Nyayalayas in rural areas. The committee in its
report recommended the introduction of concept of legal aid in the Constitution of India.
• Accepting this recommendation in the 1976, Article 39-A was introduced in the Directive
Principles of State Policy by 42nd Amendment of the Constitution. With the object of providing
free legal aid, the Government of India had, by a resolution dated 26th September, 1980
appointed a Committee known as Committee for Implementing Legal Aid Schemes (CILAS)
under the chairmanship of Chief. Justice P.N. Bhagwati to monitor and implement legal aid
programs on a uniform basis in all the States and Union Territories. CILAS evolved a model
scheme for legal aid programs applicable throughout the country by which several legal aid and
advice Boards were set up in the States and Union Territories.
• Although legal aid was recognized by the Courts as a fundamental right under Article 21
reversing their earlier stance, the scope and ambit of the right was not clear till this time. The

step was taken in Sunil Batra v. Delhi Administration, where the two situations in which a
prisoner would be entitled for legal aid were given. First, to seek justice from the prison
authorities and second, to challenge the decision of such authorities in the court.
• Thus, the requirement of legal aid was brought about in not only judicial proceedings but
also proceedings before the prison authorities which were administrative in nature. The court has
reiterated this again in Hussainara Khatoon v. State of Bihar and said: it is an essential ingredient
of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the
courts process that he should have legal services available to him. Free legal service to the poor
and the needy is an essential element of any reasonable, fair and just procedure.
• The court invoked Article 39-A which provides for free legal aid and has interpreted
Article 21 in the light of Article 39-A. The court upheld the right to free legal aid to be provided
to the poor accused persons not in the permissive sense of Article 22(1) and its wider amplitude
but in the peremptory sense of article 21 confined to prison situations.
• Two years thereafter, in the case of Khatri v. State of Bihar, Justice P.N. Bhagwati while
referring to the Supreme Courts mandate in the aforesaid Hossainara Khatuns case, made the
following comments, in paragraph 4 of the said judgment:
• It is unfortunate that though this Court declared the right to legal aid as a fundamental
right of an accused person by a process of judicial construction of Article 21, most of the States
in the country have not taken note of this decision and provided free legal services to a person
accused of an offence. The State is under a constitutional mandate to provide free legal aid to an
accused person who is unable to secure legal services on account of indigence, and whatever is
necessary for this purpose has to be done by the State.

• In 1986, in another case of Sukhdas v. Union Territory of Arunachal Pradesh, Justice
P.N. Bhagwati, while referring to the decision of Hossainara Khatuns case and some other cases
had made the following observations in paragraph 6 of the said judgment:-
• Now it is common knowledge that about 70% of the people living in rural areas are
illiterate and even more than that percentage of the people are not aware of the rights conferred
upon them by law. Even literate people do not know what are their rights and entitlements under
the law. It is this absence of legal awareness which is responsible for the deception, exploitation
and deprivation of rights and benefits from which the poor suffer in this land.
• Their legal needs always stand to become crisis oriented because their ignorance prevents
them from anticipating legal troubles and approaching a lawyer for consultation and advice in
time and their poverty because magnifies the impact of the legal troubles and difficulties when
they come. Moreover, of their ignorance and illiteracy, they cannot become self-reliant; they
cannot even help themselves.
• The Law ceases to be their protector because they do not know that they are entitled to
the protection of the law and they can avail of the legal service programs for putting an end to
their exploitation and winning their rights. The result is that poverty becomes with them a
condition of total helplessness.
• This miserable condition in which the poor find themselves can be alleviated to some
extent by creating legal awareness amongst the poor. That is why it has always been recognized
as one of the principal items of the program of the legal aid movement in the country to promote
legal literacy. It would be in these circumstances made a mockery of legal aid if it were to be left
to a poor, ignorant and illiterate accused to ask for free legal service, legal aid would become
merely a paper promise and it would fail of its purpose.
• It was in the above backdrop that he Parliament passed the Legal Services Authorities
Act, 1987, which was published in the Gazette of India Extraordinary Part II, Section I No. 55
dated 12th October, 1987. Although the Act was passed in 1987, the provisions of the Act,

except Chapter III, were enforced with effect from 9.11.1995 by the Central Government
Notification S.O.893 (E) dated 9th November 1995. Chapter III, under the heading State Legal
Services Authorities was enforced in different States under different Notifications in the years
1995-1998.
Legal Aid under Legal Services Authority Act, 1987:
• According to Section 2(1) (a) of the Act, legal aid can be provided to a person for a 'case'
which includes a suit or any proceeding before a court. Section 2(1) (a) defines the 'court' as a
civil, criminal or revenue court and includes any tribunal or any other authority constituted under
any law for the time being in force, to exercise judicial or quasi-judicial functions.
• As per Section 2(1)(c) 'legal service' includes the rendering of any service in the conduct
of any case or other legal proceeding before any court or other authority or tribunal and the
giving of advice on any legal matter. Legal Services Authorities after examining the eligibility
criteria of an applicant and the existence of a prima facie case in his favour provide him counsel
at State expense, pay the required Court Fee in the matter and bear all incidental expenses in
connection with the case. The person to whom legal aid is provided is not called upon to spend
anything on the litigation once it is supported by a Legal Services Authority.
• Under The Legal Services Authorities Act, 1987 every citizen whose annual income does
not exceed Rs 9,000 is eligible for free legal aid in cases before subordinate courts and high
courts. In cases before the Supreme Court, the limit is Rs 12,000. This limit can be increased by

the state governments. Limitation as to the income does not apply in the case of persons
belonging to the scheduled castes, scheduled tribes, women, children, handicapped, etc.
Conclusion
• Thus we can find a paradigm shift in the approach of the Supreme Court towards the
concept of legal aid from a duty of the accused to ask for a lawyer to a fundamental right of an
accused to seek free legal aid. But in spite of the fact that free legal aid has been held to be
necessary adjunct of the rule of law,the legal aid movement has not achieved its goal. There is a
wide gap between the goals set and met.
• The major obstacle to the legal aid movement in India is the lack of legal awareness.
People are still not aware of their basic rights due to which the legal aid movement has not
achieved its goal yet. It is the absence of legal awareness which leads to exploitation and
deprivation of rights and benefits of the poor.
• Thus, it is the need of the hour that the poor illiterate people should be imparted with
legal knowledge and should be educated on their basic rights which should be done from the
grass root level of the country. Because, if the poor persons fail to enforce their rights etc.
because of poverty, etc. they may lose faith in the administration of justice and instead of
knocking the door of law and Courts to seek justice, they may try to settle their disputes on the
streets or to protect their rights through muscle power and in such condition there will be anarchy
and complete dearth of the rule of law.

• Thus legal aid to the poor and weak person is necessary for the preservation of rule of
law which is necessary for the existence of the orderly society. Until and unless poor illiterate
man is not legally assisted, he is denied equality in the opportunity to seek justice.

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HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

B.A./B.B.A. LL.B. (Hons.) SEMESTER-IV

PAPER CODE: LB 404

COURSE TITLE: LAW, POVERTY AND DEVELOPMENT CREDITS-04

Module-1 Conceptualising Poverty

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Module-2 Law and Disadvantaged

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Module-4 Criminal Law and Poor

4.1 Anti-poor biases of the criminal justice system

1. U. Baxi (ed.), Law and Poverty (1988) Tripathi, Munbai

3. A.W. Murphy, et.al., Law and Poverty (1973), Tripathi, Mumbai.

4. J.S. Gandhi, Law and Social Change (1989) Rawat, Jaipur.

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Module 1 Conceptualising Poverty

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Vicious Circle Theory

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have to be done in society. It is the poor who take up such jobs.

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Poverty and its Consequences Culture of Poverty

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Women and Youth and Area Development Programmes

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1.2 CONCEPTUALIZATION OF IMPOVERISHMENT

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a) Poverty Line Estimation

Pre-Independence Poverty Estimation

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a uniform all-India urban PLB across rural and urban India.

• Thirdly, it recommended using Mixed Reference Period (MRP) based estimates, as

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vi) Rangarajan Committee (2014):

b) Use of Consumption Expenditure Surveys

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Data Collection Method for NSSO Expenditure Survey

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• The erstwhile Planning Commission released the estimates of poverty as number of

LIMITATIONS OF “BELOW POVERTY LINE (BPL)” APPROACH

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BPL CENSUS FOR IDENTIFICATION OF POOR HOUSEHOLDS

The BPL Census of 1997 was conducted in two stages.

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SOCIO-ECONOMIC CASTE CENSUS SURVEY (SECC) 2011

The SECC 2011 ranked households in three categories:

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Socio-Economic and Caste Census (SECC)

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