31/12/2012

Implementation of Forest Rights Act in Jharkhand

It has been more than six years since the enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 however the objectives that the Act sought to achieve remain far from being achieved. The forest dwellers continue to face repression at the hands of the forest department. Forceful evictions are continue. Let alone implementation of the Act, there are several areas in Jharkhand where the beneficiaries are not even aware of the Act and the rights they are entitled to. The process of settlement of claims is being carried out in a very irregular manner and not as per the provisions of the Law. Diversion of forest land for industrial and mining purposes is widespread. Violation of human rights has posed further hurdles for the struggle and realization of forest rights.  The State has fallen short of its duty to implement the Act in its true spirit.

Apart from the above the right to protect, regenerate and manage the natural resources is the most crucial part of rights provided by the Forest Rights Act and it demands our immediate attention to uphold the real spirit of the Act. Somehow in a little number the individual claims were settled but  community rights for forest governance as provided in section 3(1)(i) of the Schedule Tribes and other Traditional forest Dwellers (Recognition of Forest Rights) Act 2006 still not considered by the Government. In lack of the unawareness of community claim very less claims were filed and none of them were settled.

Justice B.N.Kirpal judge of the Supreme Court of India in T.N. Godavarman vs Union of India (Writ Petition (C) No. 202 of 1995) ordered the removal of “Encroachers” from the forest, he did not use the word tribal people. Following the Supreme Courts order lakhs of people were evicted from the jungles, in Saraikela Kharsawa district more than 52 hoses were used to demolish. It was after the order of the Supreme Court that the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was enacted.  The Act as it exists today is not the law that was drafted by the tribal groups. The FRA though flawed does guarantee rights to the people, which are unfortunately not being implemented.
In Jharkhand the implementation of the Act began a long time after its enactment. It was only after immense public pressure that the government initiated the implementation process. Initially the government had not even printed the claim forms. Currently a lot of black marketing is taking place. The community rights form is not available in several places.
In order to provide assistance to the claimants, the government Jharkhand allotted Rupees Twenty Five Thousand per bloc for holding workshops on how to fill the claim forms and file them. However this scheme was never implemented in true spirit and only ad hoc improper efforts were made. The dismal state of affairs can be gathered from the fact that the government had printed only 500 booklets containing the provisions of the Act, and nobody knows where these pamphlets were distributed. The Government quite clearly has taken only half baked measures to implement the Act.

In Jharkhand there are several communities that are not in the Scheduled Tribe list but they are tribal people. There have been evictions and the other traditional forest dwellers have been victimized. The seventy five years cutoff date prescribed for grant of titles to the other traditional forest dwellers is unrealistic and unreasonable, it is an attempt to not grant their rights.
There is need of strong movement for doing survey , because without proper survey a fair implementation of Forest Rights Act is not possible.
Department of Revenue failed to provide village map. Department of Forest harass people who make their claims under the Forest Rights Act. In Goelkera Block under West Singhbhum district a forest rights movement of Jharkhand “Jharkhand Jungle Bachao Andolan” has distributed 1300 claim form which were submitted for granting of Patta, unfortunately only 80 Patta was sanctioned by the authorities. This is one small example that shows the difference between the claims and allotment.


29/12/2012

एक संघर्षशील नौजवान की जद्दो-जहद

मुझे याद है की मैं अपने कालेज के दिनों में एक नौजवान से मिला था, सन 2007 में जब मैं कानून का तालिबे इल्म था और वो मुझसे 2 साल जूनियर | यूँ तो हम आस-पास ही रहते थे, और बराबर दुआ सलाम हो जाया करती थी, पर एक दिन शाम के वक्त एक टी स्टाल पर चाय पीते हम दोनों के दरमियान कुछ बातें हुयी, मुझे उसमे कुछ संभावना नज़र आई | जनाब को पोलिटिक्स का बड़ा शौक था, न्यूज़ अपडेट, पोलिटिकल Analysis बेजोड़ था |
     वकालत होने के बाद मैं कुछ वक्त के लिए दिल्ली चला गया , फिर रांची आ कर हाईकोर्ट से सफ़र शुरू किया… मुलाकात तो होती रही पर कुछ ख़ास नजदीकी नहीं रही |
     अतिक्रमण हटाओ अभियान जिसे मैं “गरीबो को हटाओ” अभियान कहता हूँ, के दौरान हम दोनों को एक केस पर साथ काम करने का मौका मिला…. और जिस तरह से उसने पहाड़ी टोला बचाने की जद्दो जहद की यही देख कर मैं ये ब्लॉग लिखने को मजबूर हो गया | अतिक्रमण हटाओ अभियान की मुखालफत मैं मई 2010 से ही कर रहा हूँ और नेशनल हाकर फेडरेशन का वकील भी हूँ, झारखण्ड नागरिक बचाओ आन्दोलन के कोर कमिटी का मेम्बर भी हूँ साथ साथ सुप्रीम कोर्ट में भी एक केस पर काम भी किया है जिसकी मुद्दई नामी गिरामी सोशल एक्टिविस्ट मेधा पाटेकर और बस्ती बचाओ संघर्ष समिती हैं | अमूमन में मैंने देखा है लोग जिनका मकान/दूकान अतिक्रमण के दायरे से बाहर है उन्हें कोई मतलब नहीं होता है, सिवा अफ़सोस जताने के लोग और कुछ नहीं करते, और ज़्यादातर लोग तो “ग़रीबों को हटाओ” अभियान की वकालत करते हैं | पर ये शख्स अपने घर वालो के मना करने के बावजूद झुग्गियो में जा कर सैकड़ो मीटिंग कर चूका है, लोगो को गोलबंद करना, रांची में अतिक्रमण हटाओ अभियान के खिलाफ जितने भी आन्दोलन, बैठकें हुयी मैंने जावेद को वहां पाया, इसमें उसका कोई मुनाफा नहीं, कोई फायेदा नहीं, सिर्फ एक सोच की गरीबों का घर कैसे बचाया जाए? 12 बजे रात रात तक मेरे ऑफिस में बैठ के मुझसे बहस की… क्या किया जाए लोगो को बचाने के लिए… कोशिश भी की हम लोगो ने…
     आज भी मिला उनसे, चेहरा मायूस था पर आँखे चमक रही थी… कहा …हमलोगों ने कम से कम इमानदारी से कोशिश की…. रिजल्ट देना अल्लाह का काम है | मुझे भी हौसला हुआ | अभी थोड़ी देर पहले ही उजड़े घर और बच्चो, बूढों, औरतो को सड़क के किनारे देख के आया हूँ … मुझे अपने फ्लैट के छत से नफरत सी होने लगी है |

Violence against women and Children in Jharkhand

In Jharkhand violence against women are rampantly prevalent still there are more serious crimes against women prevails which is different from other states.

Sexual Harassment: - Sexual harassment ranges from teasing and molestation to violent sexual abuse. Women continued to be victim of sexual abuse in Jharkhand total number reported was just 2nd to Assam. It is a subject on which women across all class and age groups can be readily mobilized. In many areas powerful and upper caste groups often target poor Dalit women. Sexual abuse and other forms of violence are often used to inflict political lessons and to crush dissent. Criminal law does not use the term sexual harassment but speaks instead of outraging the modesty of a woman.

Rape: - It is the most violent, abrupt and physically painful instance of male aggression. At the physical level, it represents an invasion of person; at the psychological, it results often in deep trauma, shame and guilt. Marital rape is excluded from the definition except when it is committed on a girl below 12 years of age. In addition, although the law prohibits evidence on the antecedents of the accused, it applies a different yardstick for women when such antecedents are often brought into prove cases against the woman. Rape is punishable under law with minimum years of seven years but the courts have the power to reduce sentences which they usually do. 753 cases are recorded in 2005. In April- November 2011, 592 cases are recorded as per the Jharkhand police.

Dowry & Dowry Deaths :- Dowry deaths as being one where a woman dies of burns or other injuries within seven years of her marriage and there is evidence of cruelty and harassment by the husband or any relative of her husband , “ for or in connection with any demand for dowry “Harassment in itself can be cause for considerable agony , anguish and trauma for married women whereas the Cruelty may cause a women to commit suicide or ‘cause grave injuries or danger of life , limb or health’ , whether mental or physical of the women and harassment related to property demands. However, Dowry is not prevalent in tribal but in other class of society, it is predominant problem. This is only the reason why girls are not desired and there is the craving for the boy child. Having price of Rs. 50,000- Rs.2,00,000 (even in poor’s) is given to the groom as Tilak. If not given marriage doesn’t take place. Jharkhand stands 17th among states for crime against women to 257 dowry cases were recorded in 2005. Only in the month July 2011, 34 dowry death case has taken place as per the Jharkhand police Data.

Witchcraft/ Witch hunting: – Women in Jharkhand continued to be targeted as “witches”. Many of the alleged witches were meted out inhuman and degrading treatment. In the tribal belt of Jharkhand the incidence of witchcraft is very common. In a majority of the cases, it is found the real motive of the killers was to grab property or to settle personal scores with the victim family. In order to garner support for their nefarious activities, villager’s particularly influential people brand female member of a particular family as a witch so that they could get the support of their co-villagers in hounding out or killing the victims’ family. The villagers believe that the women branded as witch are responsible for the illness, death, and drought and desire that is overwhelming the lives of the communities’ women. In April- November 2011 total 32 cases are recorded as per the Jharkhand police.

Caste & Class Conflicts:- In Jharkhand caste politics play a very important role in any violence. In this state not only the number of castes and sub castes is very large, but the politicization of each caste or caste group has left specific imprint on the political process of the State. In fact, the politics has been characterized by a fourfold division – forward – castes, backward-castes, harijan and tribals. Narrowness of caste feeling has contributed a lot to the occurrence of violence in the society. The feeling of casticism and the awareness among the low and the middle classes has mainly led to caste-conflict and tensions. The class conflicts depends on the process of production and the economic infra-structure. The society has been clearly divided into two classes. The haves and the have nots. The awareness amongst the have nots has been broken the old relational norms and they are ready to get their economic positions and other rights in society by hook or crook. In fact it has opened a new vista in the field of violence and it is the women who are the ultimate victims.

Communal Violence: – Communal violence is more visible in urban areas as compared to caste violence taking place in rural areas, though with its acceleration in recent years, it may spread to rural areas also. Earlier it was generally thought that riots takes place between the Hindu and the Muslim communities. But the recent development of attacks on minorities may take the serious shape of violence.

Domestic Violence: – The term domestic violence is wide and encompasses in its scope the types of violence resorted to within the home. The overwhelming majority of victims of domestic violence are woman. Domestic violence not only includes conduct which amount to cruelty on a woman by her husband or any of his relative but also includes any act which is unbecoming of the dignity of the woman. The woman are brutally beaten or abused by her husband or in-laws.

Trafficking of women: - Trafficking in women and children is one of the worst and most brazen and abuses of human rights. Trafficking is the legal or illegal moment of women and children by force or through other forms of coercion for the purpose of exploitation and for the consideration of economic and other benefits. Migration, especially illegal migration though distinct and separate is integrally connected to trafficking. Trafficking is a modern forms of slavery which forces a Jharkhand’s (Jharkhand is a source point of trafficking) women for the purpose of the prostitutions and domestic works in metro cities.

There are some cases of women sexual violence intervened by HRLN, such as Moushmi rape case in which A student of Air Hostess Academy, Mousumi 17 aged had allegedly sustained fatal injuries on the first day of her hospitality training at Hotel Sonnet’s laundry section in the morning of May 9, 2009. Her scarf had reportedly got trapped in the roller press, injuring her neck but the fact is not so. The Supreme Court ordered to CBI for enquiry again the case but the CBI didn’t get the exact fact.
In my early days of starting of my career in the field of legal advocacy i intervened in some cases which i would like to share as on the 20th of October 2009, The BBC carried a news item entitled ‘Village Witches Beaten in India’, detailing how five women from Deonagar District in Jharkhand state were paraded naked, beaten and forced to eat human excrement by villagers after being branded as witches. Six days later, on the 26th of October 2009, the Hindustan Times carried another news article entitled ‘The Lost Case of Witches’, reporting that another resident of Jharkhand state was branded as a witch because of her refusal to have sexual relations with some influential people in her village. In the same month, on the 16th of October 2009, a woman named ‘Shama Parveen’, a resident of Dhanbad District in Jharkhand sought legal assistance after she had been branded as a witch, thrown out of her village, and beaten within an inch of her life. In light of these alarming incidents, a team of lawyers and social activists researched and investigated the issue of witch hunting in the state of Jharkhand. This article is the product of those investigations.
Another big problem of our society is violation against child which is increasing as inflation of particular product. Child Labour is such kind of issue which is increasing at an alarming rate. The people especially industrialist, businessman and shopkeeper etc appoints the children as an employee and forced them to work with a very less wage. Many children around the world face a similar scenario when they are forced to work and provide by their family instead of sending them to school. As the Government of India made a law which provide a free and compulsory education to all the children of the age of Six to Fourteen year in such manner as all the State and various policy taken out for the poor children such as Government Schools, Colleges, many NGOs, Anganwadi in which even food, clothes are provided to poor children free of cost and Sarva Shiksha Abhiyaan etc. But then also people didn’t ever put their eye on law and always try to avoid the law and appoints the children’s as an employee. This issue of child labor demonstrates that ideals such as the innocent and carefree life that children in most industrialized nations are able to enjoy do not ever enter in the poorer section of the world. Children work under abhorrent conditions; those that work in looms become “disabled with eye damage, lung disease and stunted growth as they grow older. As we had seen many rag pickers in the slum street mostly of them are children, these all are mostly because of poverty as well as forced from their family.

Laws Relating to Children in India

The development index of a country depends on the quality of the Human Resource. Children are the future of this country and thus, there arises a greater responsibility on part of the state to ensure a proper development of children of this country. According to United Nations Convention on Rights of the Child(UNCRC), “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.”This gives the various countries freedom to fix the age limit in determining that who is a child. In India after passing The Juvenile Justice (Care and Protection of Children) Act 2000, any person below the age of 18 is considered as a child as the mental state of adults and children are different; therefore there is a need to treat them separately under the different purview of law. And so there are different provisions in our legal system to ensure that children do not suffer any ailment due to prevalence of similar legal system.

According to the section 82 of Indian Penal Code (IPC), nothing is an offence which is done by a child under seven years of age. Also according to the section 83 of Indian Penal Code (IPC), nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. To ensure that people come forward to help children in danger, section 89 of IPC asserts that nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offense by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person.
To ensure that children are not left at the peril of their parents i.e. they are not abandoned section 317 of IPC, whoever being the father or mother of a child under the age of twelve years, having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years; or with fine, or with both. According to section 361of IPC, whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Section 363 of IPC provides the punishment of this offense i.e. whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
This ensures the safety of the children. Section 369 whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
To ensure that children are not kidnapped for the purpose for begging section 363A of IPC asserts that kidnapping or maiming a minor for purposes of begging is a criminal offense  under IPC i.e.(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
(2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine.
(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging.
To protect the girl child from sexual offenses section 366 A. of IPC asserts that whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
Section 372 of IPC asserts that whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine. Section 373 of the above legislation states that whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
To ensure that trial of the juvenile delinquents is carried out in an amicable manner, Section 27 of The Code of Criminal Procedure (CrPC) asserts the jurisdiction in case of juveniles. It states that any offense not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the court is under the age of sixteen years, may be tried by the court of’ a Chief- Judicial Magistrate, or by any court specially empowered under the Children Act, 1960 (60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.
The Indian Constitution also has special provisions for the children of state. Article 21(a) of the constitution states that all children between the ages of six to fourteen should be provided with free and compulsory education. Article 45 of the same bare act states that the state should provide early childhood care and education to all children below the age of six.
Thus we see that the Indian Legal System has indeed made separate provisions in the best interest of its young citizens.