Archive for March 30, 2014

Reporter on duty gang raped in UP, angry women journalists issue statement

Uttar Pradesh journalist gang rape

By Team FI

Network of Women in Media, India (NWMI), an independent body of women journalists has expressed shock and anger over the gang rape of a woman journalist in Mirzapur district of Uttar Pradesh on Thursday night.

The journalist, employed with a Hindi newspaper was in Mirzapur to write a story on ancient temples in the district. She was abducted on her way to her hotel by three men and was raped by two of them. The police have arrested one of the accused, Ashwini Tiwari who hails from Akodhi village.

FeministsIndia is reproducing the full text of the statement issued by NWMI here;

The Network of Women in Media, India expresses shock and anger at gang-rape of woman journalist in UP

The Network of Women in Media, India (NWMI) is shocked and upset about the reported gang-rape of a woman journalist in Mirzapur district of Uttar Pradesh on Thursday. The journalist was reportedly abducted by three persons after she had visited the Ashtabhuja temple to do a story on historic temples of the Vidyachal region.

The NWMI would like to express support and solidarity to the colleague who suffered abduction and assault in the course of her work. We call upon her employer to extend both moral support and practical assistance, including help in pursuing the legal case, to her.

The incident exposes the extreme lack of security of women professionals on assignment as well as the general lack of safety for women in the state and, indeed, the country. The NWMI is deeply concerned about the increasing incidents of attacks on journalists in general, and of assault and molestation of women media professionals in particular. The network had sent on the subject to the Press Council of India after the gangrape of a female media professional in Mumbai in August 2013

It appears that, in the latest case, the police has acted on the complaint and arrested one of the accused. The other two are absconding. The NWMI urges the Uttar Pradesh police to leave no stone unturned to find the accused still at large and bring them to book as speedily as possible.

According to reports, the journalist was associated with a Hindi newspaper in Haridwar in Uttarakhand and had gone to Vidyachal to do a story on historic temples in the area. She had visited the Ashtabhuja temple in connection with her work. After finishing her research into the temple around 8 pm, she had proceeded towards the Allahabad-Mirzapur highway to take an auto when she was abducted by three persons.

The NWMI demands that investigations be conducted without delay and in keeping with the Criminal Law (Amendment) Act, 2013, relating to sexual violence, and that the complainant be treated with due respect and sensitivity.

The NWMI also urges the media to exercise ethical responsibility in reporting the incident, keeping in mind the law as well as existing professional codes of conduct such as those issued by the Press Council of India and the News Broadcasters’ Association

The NWMI also calls upon all news organisations to take measures to ensure the safety and security of all media-persons on assignment.

Aadhaar not mandatory, Supreme Court

Aadhaar Card

By Team FI

In a major boost to civil rights activists who have been campaigning against the Aaddhaar digital identity, Supreme Court of India on Monday passed an order asking Government of India to delink all programs from biometric Aadhaar and directed the central government to withdraw all notifications that make Aadhaar cards mandatory.

The Aadhaar is a 12- digit unique identification number for Indian citizens and is operated by Unique Identification Authority of India (UIDAI)

In a press statement welcoming the judgment, activists who have been campaigning against Aadhaar stated that in countries like India in the absence of any regulatory resistance, data mining mafia prowls through the information collected for Aadhaar. The marriage of internet with biometric data consequents in the death of privacy and democratic rights.

“In post-independent India, except for the Emergency period privacy was never under such unprecedented assault.”

Anti Aadhaar campaigners believe that biometric data itself has scientifically been proven to be ‘inherently fallible’ especially because of constant decay of biological material in the human body. Global experience demonstrates that the trust in the junk science of biometrics is misplaced. “The stolen biometric passport of a passenger in the missing Malaysian Airline has exposed its claims for good,” states the press release. Last year, when the Unique Identification Authority of India made its contract agreement with Ernst & Young available to the public under Right To Information (RTI) Act, it was learnt in UIDAI admission in its contract that “biometric systems are not 100 % accurate”.

The privacy issue was also not fully addressed in the Aadhaar programme. According to activists, the central government’s claim that “privacy issues can be take care of once supporting legislation is in place” is “putting the cart before the horse”.

Welcoming the order, Citizens Forum for Civil Liberties (CFCL) has demanded that opposition parties should promise that the new government after the 2014 Lok Sabha elections will destroy the illegal and illegitimate database of biometric features as has been done in UK and other countries.

What do you know about the criminal justice process?

Criminal law bill India

Lawyers Collective releases guide for those dealing with sexual violence

By Team FI

Lawyers Collective, an NGO is bringing out a handbook titled “Locating the Survivor in the Indian Criminal Justice System: Decoding the Law”.

According to the publishers ‘the handbook attempts to demystify the law, identify the various stakeholders in the justice delivery machinery and points out the specific roles assigned to each”.
It also provides a comprehensive coverage of the survivor’s entitlement introduced by the Criminal Law (Amendment), Act, 2013 and discusses the complementary changes brought in the Indian Penal Code, 1860 and the Indian Evidence Act, 1872.

An analysis of the data by the National Crime Records Bureau (NCRB) between 2010 – 2012 reveals that the conviction rates for all major crimes against women under the Indian Penal Code have declined. The conviction rate for rape has gone down by almost 3 % between 2010- 2012. This is, despite increasing awareness amongst masses and a growing concern for women’s safety.

Lawyers Collective sates that it has been studying reasons for attrition and what deters survivors to continue with the Criminal Justice process. A major reason is distrust towards the system and unfamiliarity with the law.

There is another handbook on Do’s and Dont’s for survivors of sexual violence titled “Engaging with the Criminal Justice System: A Guide for Survivors of Sexual Violence”. The publication consists of some basic questions that a survivor often has to deal with and provides necessary answers, thereby assisting the survivors of sexual offences, in navigating the criminal justice system.

Both these handbooks will be officially released by Chief Justice of India P. Sathasivam on 31st March in New Delhi.

Gujarat development myth: 16 questions to Narendra Modi

Gujarat pollution

The growth story of Gujarat has masked the multiple realities of land acquisition, displacement, loss of livelihood, irreversible damage to environment and permanent loss of natural resources, writes Vadodara based human rights activist Rohit Prajapti in an open letter to right- wing politician and PM aspirant Narendra Modi

Here is the full text of the letter:

Mr. Modi,

Subject: Clarify your position on key environmental issues for the General Election 2014 to enable meaningful debate and not empty rhetoric.

I would like to raise certain issues for you to respond to during the ensuing General Election 2014 debate, as you project yourself as PM in waiting, making unsustainable claims about the so-called two digit growth of Gujarat.

I am sending you the points for discussion in advance to enable you to respond in writing during your election campaign in Vadodara and Varanasi constituencies. I am also sending a copy of the letter to the press so that you can respond to the press directly as well. These issues are not new; I have repeatedly raised them in number of letters sent to various departments of the Government of Gujarat, as well as directly to you. I have yet to receive a proper reply though to any of them.

The CMO has, instead of answering categorically, passed the buck by referring these letters to the so-called concerned department even when straight questions were addressed to you. I am ready for dialogue in an open meeting with you as well on these issues. I am also prepared to attend a press conference to discuss these issues. I assure you that I am eager to engage in dialogue with you and hence am sending you people’s concerns in advance so that the discussion may be thoughtful and productive.

I would like to clarify that some questions I raise have equal relevance for the Congress Party who have yet to address the questions that I am raising. However, since it is you who makes tall claims for Gujarat and since you have been in power in Gujarat State for many years, it is in the fitness of things that I address these questions to you now.

The so-called success story of the two-digit growth and tall claims of capital investment in Gujarat State has masked the several digit realities of loss of livelihood, land acquisition, displacement, irreversible damage to environment and permanent loss of natural resources, which are treated as free goods in this development model. The investment figure, without the figures for displacement, destruction and depletion of natural resources and the employment figure without loss of livelihood does not make sense. No wise person would talk about the income without talking the cost of acquiring that income or wealth.

My questions relate to the ‘development model’ celebrated and propagated by you for the 2014 Lok Sabha election campaign and the Destruction of Natural Resources and Livelihood that has resulted directly from this

(1) In 2009 the CPCB and IIT-Delhi, in keeping with the demands of the people’s organisations working on environmental issues, decided to use a new method of indexing the pollution levels of these areas, which is now known as the ‘Comprehensive Environmental Pollution Index’ (CEPI). The CEPI includes air, water, land pollution and health risks to the people living in the area. However, our demand has been to include the health of the workers, productivity of land and quality of food / agriculture produce in the index since the presence of high levels of chemicals and heavy metals in food produce has severe health implications. This is affecting not only people living around the industrial area but anyone consuming such food – hence not restricting the impact to the particular industrial area.

As per the agreed upon measures, industrial areas with a CEPI of 70 and above are considered ‘critically polluted’ areas while those with a CEPI between 60 and70 are considered ‘severely polluted’ areas. In our opinion, those industrial areas with CEPI between 40 and 60 ought to be labelled as ‘polluted areas’.

In December 2009 the CEPI of 88 polluted industrial estates was measured; it was then that the CPCB and the Ministry of Environment and Forest (MoEF) of Government of India were forced to declare 43 of those as ‘critically polluted areas’ and another 32 industrial areas as ‘severely polluted’ areas. Following this study, the MoEF on 13 January 2010 was also forced to issue a moratorium (prohibition on opening new industries and/or increasing the production capacity of the existing industries) on the 43 critically polluted areas. At that time, Paryavaran Suraksha Samiti (PSS) and other environment protection groups had asked for a moratorium on all the 75 (43+32) polluting areas, but it was not done, under pressure from the powerful industrial lobby and state governments. The murky politics and economics of ‘GDP growth’ prevailed over the cause of ‘life and livelihood’ of ordinary people and ‘environment and conservation.

As such the process of declaring moratorium was started from Ankleshwar in Gujarat in 2007. The industries located in Ankleshwar, Panoli and Jhagadia GIDC estates treat their effluent in their Common Effluent Treatment Plant (CETP) and then, after giving further treatment ‘at the Final Effluent Treatment Plant (FETP) at Ankleshwar discharge the effluent into the sea. The FETP, from its inception, did not work as per the prescribed norms set by the GPCB. Even today it is not able to meet the prescribed norm. For this reason, on July 7, 2007, GPCB, on the directions of the CPCB, imposed a moratorium on the industrial areas of Ankleshwar, Panoli and Jhagadia. The moratorium is in force even today, since there has been no substantial improvement in the pollution levels even after the implementation of the so-called ‘action plans’ prepared by these estates. The same plant’s disposal pipeline project was inaugurated by you on January 25, 2007. By inaugurating this plant, you tried to send out the message to the investors not to worry too much about compliance with environment laws in the state. Despite this moratorium being in force officially, the active connivance of the industrial lobby with the collusion of politicians along with the official machinery in Gujarat has surreptitiously lifted the moratorium from some area at different times.

Why did you inaugurate the FETP pipeline project despite its non-compliance with the GPCB norms? Why do you endorse the public paying when industries pollute?

In reply to my RTI application to you dated 23 April 2010 about the inauguration of FETP by you, your office states that “In addition, would like to inform you that about point no. 1 & 2 of your RTI application dated 23 April 2010, information sought by you is about the period before date 25 January 2007 and government’s term was over in December 2007 and after new government came in as per our working method, old records were destroyed so demanded information can not be made available to you.”

It is difficult to believe that a responsible and publicly accountable office such as yours, especially with your emphasis on “transparent and effective public governance” would destroy official records of public importance, even while you continue to be the chief minister in the consecutive term. With your emphasis on ‘information technology’ in governance, the soft copies of the correspondence should be present in some official data bank, or one would assume that you or your office are deliberately withholding or denying information that should be in public realm and your public accountability as the chief minister stands questioned, following such a stand of destruction of official records on the mere pretext that it happened because of change in Government. Why do you want to hide this information? What is the stated policy on destruction of records? Under what rule or law have such critical documents been, as you say, destroyed?

Despite the “Polluter Pays” principle, common effluent treatment plants (CETPs) were highly supported by public money; 25% of the cost was state subsidy, 25% central subsidy, 30% loans from financial institutes, and only 20% was directly paid by industries. In essence, half of the supposed ‘solution’ to the pollution generated for private profit, was funded by the general public. As if this subsidy was not enough, the subsidy for the CETP has been increased from 25% to 50% by the Central Government.

The pipeline project of Final Effluent Treatment Plant of Ankleshwar was built with the sweat of tax payers. Out of a total project cost of Rs. 131.43 crores, the industries paid only Rs. 21.75 crores (about 17%); the rest of the tab (Rs. 109 crores) was borne by the Central Government, the Gujarat Government, and the Gujarat Industrial Development Corporation (GIDC) – all of which ultimately draw from public money. It is a familiar story: the profits are distributed privately, but the institutional costs and environmental burden are borne by general public. Can we find a better example of the privatisation of profits and the socialisation of the costs, burdens and hazards?

With no improvement in the levels of pollution being shown by the CEPI of the CPCB, the MoEF again, through its order of September 17, 2013 re-imposed a moratorium for some industrial areas. However, surprisingly the same order also lifted the moratorium from some polluted areas in the name of ‘promises, presumption and assumption’ of improvement. However, in our opinion the moratorium ought not to be lifted until these units bring down their CEPI to below 60.

In Gujarat, the GPCB has served repeated closure notices to several industries, which have been openly flouting environmental norms. However, the CPCB report of May – November 2013 has revealed no significant change in these industrial areas

Strict action needs to be taken against such industries and their ‘treatment facilities’. The CPCB report of 2009 covered 88 industrial estates, but the reports of 2011 and 2013 covered only 43 ‘critically-polluted areas’. In our opinion, the CEPI of all 88 areas should be conducted by the MoEF, CPCB and SPCBs. Other areas should also be included if the residents so wish.

In 2009, the Ankleshwar’s industrial area, with 88.50 CEPI, topped the list of ‘critically polluted areas’ of India . In 2011 and 2013, Vapi industrial area, with CEPI of 85.31, topped this list . What do you want to say about this number one?

The Gujarat Government is neither uttering a single word on these issues nor are you ready for any kind of dialogue or debate on this issue.

I am not and cannot be concerned only with the quantum of investment, but also with what is being invested, what the goal of the investment is, and how it affects the people in general. The Gujarat Government has consistently opposed these moratoriums per se, without acknowledging the environmental concerns brought up by affected people and environmental groups despite the obvious need. Given that the industries are facing moratoriums from the Ministry of Environment and Forests for the unabated cycle of pollution, which continues to impact adversely all kinds of lives – human, agriculture and livestock, I am interested to know what you have to say regarding the industrial moratoriums in our state. What is your position on environmental concerns that have led to the moratoriums?

(2) Why does your government fail to have a land use policy?

Why is an abundance of chemical industries allowed on fertile land, including the ‘vegetable basket’ of Gujarat like Padra Taluka of Vadodara District?

(3) On 7 May 2004 in Writ Petition (Civil) No. 657 of 1995, the Supreme Court ordered Gujarat State to provide clean drinking water to residents of villages near Vapi, Ankleshwar, and Effluent Channel Project of Vadodara, where the water supply was irrevocably damaged by industrial activities. Yet, there are ongoing actions contrary to what the Court has ordered. This order is still awaiting implementation. When will your government implement this order?

(4) The quality of groundwater in Gujarat has reached a critical stage and yet it is being contaminated continuously. Orders for clean drinking water are passed based on the visit of the Supreme Court committee, and the committee is not able to visit all the affected villages of the Golden Corridor. The groundwater of about 14 districts and about 74 talukas of Gujarat are critically affected by pollution, even if we consider the routine parameters like Total Dissolved Solids (TDS), Total Hardness (TS), Dissolved Oxygen (DO), Chemical Oxygen Demand (COD), and some heavy metal like Cadmium, Copper, Lead, Mercury, Iron etc. Thus the condition of the groundwater of Gujarat requires immediate attention as the rural population is deprived of the very basic need of safe drinking water and clean water for their animals and crops.

The groundwater of about 14 districts and about 74 talukas of Gujarat are critically affected by pollution

Ahmedabad, Daskroi, Mehmedavad, Vadodara, Ankleshwar, Bardoli, Choryasi, Kamrej, Mangrol, Olpad, Palsana, Valod, Vyara, Navsari, Sanand, Dhoraji, Jetpur, Okha Mandal etc. talukas are critically polluted. Amreli, Jambusar, Junagad, Mandvi, Kalol, Morvi, Upleta, Mahuva, Chorila, Dhangadhar, Limdi, Bansda, Umbergaon etc talukas are found moderately polluted. If we talk about Vatva to Vapi – the Golden Corridor – it is clear that 70% of the groundwater is contaminated and it has reached the irreversible level. When are you going to act on this serious issue of contamination of ground water?

(5) The air pollution situation is also alarming in the Golden Corridor of Gujarat. The Gujarat Pollution Control Board admits in writing “5. PROBABLE POLLUTANTS: … (B) Air: HCl, SO2, NH3, H2S, NOx, PM2.5, PM10, VOCs, PAHs, PCBs, Vinyl Chloride. Note: Benzene, VOCs, PAHs, PCBs, vinyl chloride are not being monitored by GPCB, as no measuring facility is available with GPCB. This statement speaks for itself. In an “advanced state” like Gujarat, why do we not have facilities to take these basic measurements? Moreover, when will you take actions to clean up the air quality, which has become so poor?

(6) You are the Chairman of the Gujarat State Disaster Management Authority and the same authority has to implement ‘The Gujarat State Disaster Management Act, 2003. The Act clearly states ‘(2) (h) “disaster” means an actual or imminent event, whether natural or otherwise occurring in any part of the State which causes, or threatens to cause all or any of the following: (i) widespread loss or damage to property, both immovable and movable; or (ii) widespread loss of human life or injury or illness to human beings; or (iii) damage or degradation of environment.’ However, the web site of Gujarat State Disaster Management Authority states ‘The GSDMA has been constituted by the Government of Gujarat by the GAD’s Resolution dated 8th February 2001. The Authority has been created as a permanent arrangement to handle the natural calamities.’ What about environmental disasters? There is no ‘Comprehensive Chemical Emergency Plan’ with the Gujarat State Disaster Management Authority. The Director, Health and Safety Department has an ‘Off Site Emergency Plan;’ but when I demanded a copy of it, I was told that it is secret. Kindly clarify your position on the crucial issue of a disaster management plan and its transparency.

(7) A direct outcome of our persistent efforts since 1994 has been forcing GPCB / Government to act against Hema Chemicals of Vadodara, which was responsible for illegal dumping of hazardous chromium waste in Gorwa area of Vadodara. As per the direction of the Supreme Court Monitoring Committee, the company was ordered in 2004 to pay Rs. 17 Crores as first instalment towards remediation of the site. Why has your government failed to remove the hazardous waste dumped by Hema Chemicals, and recover the Rs 17 Crores fines from Hema Chemicals, as per the direction of the Supreme Court?

(8) Which law allows the effluent that does not meet Gujarat Pollution Control Board norms to be discharged from Tadgam Sarigam Pipeline, from FETP, Ankleshwar, ECP, Vadodara, CETPs of Ahmedabad? I would like you to clarify your position on the issue of such an open and blatant disregard of environment laws.

(9) Your book CONVENIENT ACTION – Gujarat’s Response To Challenges of Climate Change selectively presents information and data, which are convenient to defend the ‘development model’ being pursued by the state. The book completely ignores the information from the ‘Gujarat Ecology Commission’ of the Government of Gujarat, and the press coverage on pollution in Gujarat by almost all newspapers over the last 15 years. Even a Google search on ‘pollution in Gujarat’ would have provided plenty of information. The author could also have accessed basic information from the Central Pollution Control Board and the Gujarat Pollution Control Board to find out the status of the environment of Gujarat State. Even the Gujarat Ecology Commission report and recent CAG report acknowledges the abysmal status of the environment in Gujarat. Why did you base your book on cherry-picked evidence that ignores the level of irreversible environmental degradation in the state of Gujarat?

(10) You have included in your book on page 132-133 a photo of the ‘Common Effluent Treatment Plant’ of Vapi, a facility which has not been able to fulfil the environmental norms prescribed by Gujarat Pollution Control Board since many years. While the photo is very large, there is no discussion about the functioning of CETP of Vapi. Your book completely ignores the failure of all major ‘industrial effluent treatment facilities’ of Gujarat. Why?

This post-facto regularisation of illegal residential complexes sends a clear message that the safety norms can be bent to accommodate economic interests. This is going to be a disastrous action on the part of the concerned authorities as far as the health and safety of the people is concerned. Instead of taking firm action and enforcing the regulations, these departments are succumbing to pressure from all sides from powerful rich people who want to legalise their illegal residential complexes. In spite of support by Gujarat Sate the builder had lost the case in High Court of Gujarat and ultimately people won the case.

Any post facto relaxation in the present environmental guidelines and norms is nothing but manipulation of present environmental norms to legalise illegal construction activities in order to favour powerful rich people who can pressurise the Government to act against the interests of ordinary people. I have opposed to the proposed dilution of norms, and have expressed this and written letters to you. I would like to know why your government finds it acceptable to relax safety norms of your own administration. Why accommodate violators instead of punishing them?

(11) Most of the cities and towns are openly and brazenly violating ‘The Municipal Solid Wastes (Management and Handling) Rules, 2000’ since long. For example, the Vadodara Mahanagar Seva Sadan is dumping its municipal solid wastes into the ravines, ditches, hillocks of Vishwamitri River by violating the Municipal Solid Wastes (Management and Handling) Rules, 2000. The action of the corporation is directly violating laws, which provide that water bodies should not be permitted to be polluted.

Instead of protection and preservation, the government and its corporation are themselves destroying the Vishwamitri River with their unlawful and unethical dumping of Municipal Solid Waste. This has repeatedly also led to terrible floods from River Vishwamitri

On 25th of May 2005 the Chairperson of Gujarat Pollution Control Board had given clear directions to the Municipal Commissioner of Vadodara Municipal Corporation: (1) To stop dumping of Municipal Solid Waste on the banks of the river “Vishwamitri“ and re-collect all the waste from about 70,000 sq. meter area and dispose it on the landfill site. (2) To re-collect solid waste from the bank of the river and clean up natural waterway to avoid the flooding during monsoon season. (3) To re-collect solid waste from the site near Akota Garden and on the banks of the river near VUDA Circle and dispose of it at the landfill site. (4) To stop burning of Municipal solid waste all over the city immediately. (5) To direct the concerned personnel to be more vigilant and careful. (6) Directed them to comply with the direction issued in the authorisation granted.

Now VMSS does have the so-called legal site, yet the direction dated 25 May 2005 is not implemented by the VMSS and illegal dumping is still continued at the illegal site. This is nothing but butchering of the Municipal Solid Wastes (Management and Handling) Rules, 2000. Why there is no legal action under the act as initiated against the VMSS by the Gujarat Pollution Control Board?

(12) I had also launched a complaint against residential and commercial complexes coming up in the vicinity of hazardous solid waste sites in Ahmedabad (Vatva & Naroda) in violation of GPCB notification on industrial hazardous solid waste and The Hazardous Waste (Management & Handling) Rules, 1989. These complexes were in violation of the Central Pollution Control Board & Gujarat Pollution Control Board guidelines and norms requiring a 500 metres safety distance from TSDFs to residential complexes.

Instead of punishing the violating builders/contractors, The Forest & Environment Department and Urban Development and Urban Housing Department of Government of Gujarat decided, in the meeting dated 5 September 2011, to relax the required 500 metres safety radius to only 100 metres for the purpose of legalising all illegal residential complexes, which came after the notification. For future, it was decided that the 500 metres distance would be enforced.

The original guideline was issued with the intention of preventing risk to the health and safety of the people. The revision obviously looks at the profit margin of unscrupulous contractors, not the innocent residents who will suffer in future.

About 70 adjacent tribal villages cannot even access Sardar Sarovar Dam water for irrigation. Worse, the view is gaining ground among them that water is only for urban and industrial use

(13) Another hot spot is near Sardar Sarovar Dam. The work for the Garudeshwar weir, proposed about 12 km downstream of the Sardar Sarovar dam, began without necessary environmental clearance from the Environmental Sub Group (ESG) of Narmada Control Authority’s (NCA). It is very clear if one looks closely at the letter dated March 24, 2013 written by a senior member Mr. Shekhar Singh of the ESG of NCA to its chairperson Mr. Dr V. Rajagopalan, the secretary of Ministry of Environment and Forest, Government of India. He expressed surprise over the Gujarat Government’s decision to start work for the construction of the Garudeshwar weir without obtaining necessary environment clearances.

He states in his letter that “Garudeshwar weir, to be built 12 km downstream of the SSP dam with a live storage capacity of 32.9 Million Cubic Meters, is a component of the Sardar Sarovar Project, as was envisaged by the Narmada Water Disputes Tribunal Award of 1979. However, as far as I recollect, the environmental and social impacts of construction and operation of Garudeshwar weir (GW) have never been brought before the ESG of NCA.”

He further states in his letter “In my estimation, the construction and operation of the GW will have significant social and environmental impacts, since it will entail a reservoir of about 12 km length and unknown width and submergence area. The weir will have the potential of affecting the fisheries in the immediately surrounding areas and also of affecting the downstream river and its biodiversity, and other related aspects. This is especially because the weir will control the flow of water and silt downstream.

However, I do not know whether there has been a comprehensive assessment of the environmental and social impacts of the GW and its contribution to the cumulative impact of all the projects and activities in the area. And if there has been, I do not believe that this has been put up to the ESG for its approval.”

At the end of the letter, he clearly demands, “If this is correct, I find this problematic as ESG has not yet cleared the construction of this weir. Under the circumstance, I urge you to: (1) Ask the Government of Gujarat (GoG) to immediately stop construction of the GW. All other activities related to the GW should also be stopped. (2) Ask GOG/ SSNNL to submit the full feasibility report, environment and social impact assessment report including impacts during construction and operation of the GW to the ESG and seek clearance of the ESG for this work. (3) Ask GOG not to start any work in this regard till the ESG clears this.”

The six villages, which were the first to hand over the land way back in 1961-63 to build the Staff Colony, Government Offices and Guest House to build the Sardar Sarovar Dam, have even decades later not been considered “equal” to other project affected persons (PAPs), thus remaining deprived of all the facilities which other PAPs of Sardar Sarovar Dam of Gujarat, Maharashtra and Madhya Pradesh have been offered. In fact, there are about 70 adjacent tribal villages which cannot even access Sardar Sarovar Dam water for irrigation. Worse, the view is gaining ground among them that water is only for urban and industrial use.

The view is also gaining strongly among the villagers that all this is being done at a time when the Gujarat Government has decided to build the highest statue of the world in the memory of Shri Sardar Patel by spending Rs. 2,500 crores near Sardar Sarovar Dam, around which tourism will be developed.

Lakhan Musafir and Rohit Prajapati of Paryavaran Suraksha Samiti and Savitaben Ganpatbhai Tadvi & Mavajibhai Jesangbhai Tadvi, residents of affected villages filed a case [Application No. 10 of 2014 (WZ)] before the National Green Tribunal (NGT) – Pune to stop construction of ‘Garudeshwar Weir’. The first hearing took place at Pune on 21st January 2014 and National Green Tribunal-Pune bench (Western Zone Bench) issued a notice to respondents and further hearing of the case was fixed on 31st January 2014.

The case is filed against (1) The Chairman, of Sardar Sarovar Narmada Nigam Limited, (2) The Chief Secretary of Government of Gujarat, (3) The Secretary, Ministry of Environment & Forest, Delhi (4) The Chairman, Environment Sub Group of Narmada Control Authority, New Delhi, (5) The Secretary, Ministry of Social Justice and Empowerment, New Delhi, (6) The Chairman, R & R Sub-Group of Narmada Control Authority, Ministry of Social Justice and Empowerment, New Delhi, (7) The Secretary, Ministry of Water Resources, New Delhi & (8) The Chairman, Narmada Control Authority, New Delhi.

On 31st January 2014 Advocate Mr. Nirzar Desai appeared as legal counsel of the Sardar Sarovar Narmada Nigam Limited. He requested 4 weeks time to file the reply. Our lawyer, Mihir Desai argued before the court that the construction work of Garudeshwar Weir is on and is affecting the villagers, construction work is creating an irreversible situation in the area, and that is why we request the court to grant interim stay on the construction of the weir. After hearing both sides the court passed the following order.

“We have heard learned Counsel for the Applicants. Mr. Nirzar Desai, appears for the Respondent No. 1. The Counsel for the Applicant states that he will file affidavit of service during course of the day.
The Counsel for the Respondent No. 1 seeks time to file reply affidavit.

According to learned Counsel for the Applicants, ongoing work is likely to impair the rights of project affected people in the vicinity. He submits that there will be irreversible damage caused if major work will be carried out. He further states that only a part of the work so far, is done. Hence, he urges to take-up the matter expeditiously for grant of interim relief. The Counsel for the Respondent No. 1, seeks four (4) weeks’ time.

Gujarat Government has decided to build the highest statue of the world in the memory of Shri Sardar Patel by spending Rs. 2,500 crores near Sardar Sarovar Dam

We deem it proper to grant three (3) weeks time to Respondent No. 1 to file reply affidavit and make it clear that in the meanwhile if any work is done, it will be subject to final outcome of the present Application, without claiming any right of equity arising out of execution of construction work and without pleadings in advance of any ‘fait Accompli’. Stand over to 25th February, 2014.”

On 25th February 2014 the National Green Tribunal (NGT), India’s powerful quasi-judicial environmental watchdog, has agreed to a Gujarat government plea for “more time” to reply. The NGT order states that “Heard learned Counsel Neha Pathak, holding for Mr. Mihir Desai Advocate, Learned Additional Advocate General Mr. Tushar Mehta, appears for Respondent No. 1 and 2. Ms. Shugta Busar learned Counsel, appears for Respondent No. 3, Learned Additional Advocate General, seeks time to file comprehensive reply affidavit, as regards the nature of project in question. He submits that filing of such affidavit requires co-ordination of various departments and agencies, which will take certain time. He therefore, seeks reasonable time to complete the exercise of preparing reply affidavit. He undertakes to maintain directions as regards keeping of equity, in the light of earlier order dated 31st January 2014. Stand over to 17th April 2014.”

This order makes it very clear that as of today the Government of Gujarat is not in a position to give any clear categorical answer on two counts: a) whether Garudeshwar Weir has environment clearance or not, b) under which law of the land or notification or permission the construction of Garudeshwar Weir is being carried out.

The lack of categorical reply in court reflects that there is no substance to the hyped perception of your efficient Government of Gujarat. To file a reply with crucial information about environment clearance and issues raised by us in our petition the Government of Gujarat needs two months time. That clearly indicates that even prima facie all is not well with Garudeshwar Weir and the legality of the ongoing construction of Garudeshwar Weir is in question. Kindly clarify your position on this crucial issue.

(14) Regarding the activity around “Statue of Unity Project” near Sardar Sarovar Dam in the river downstream from the dam, just 3.2 km from the Shoolpaneshwar Sanctuary, in an eco-sensitive zone and involving massive infrastructure – work has started without legally mandatory environment clearance, environment and social impact assessment or any public consultation process.

This is clearly illegal, in violation of the Environment Protection Act, 1986 and EIA notification of September 2006 and a number of NGT and Court orders about such massive kind of construction on the riverbed. On 31st October 2013, the foundation stone was laid by you for the project amidst huge fanfare and media attention. Tenders have also been floated. Even the work for the Garudeshwar weir, proposed about 12 km downstream of the Sardar Sarovar Dam, began without any social or environmental impact assessment, public consultation and environmental clearance from the Environmental Sub Group (ESG) of Narmada Control Authority’s (NCA).

The website clearly states the purpose of tourism and involvement of the ‘Sardar Vallabhbhai Patel Rashtriya Ekta Trust’ (SVPRET) to build ‘Statue of Unity’, 3.2 km downstream of the Sardar Sarovar Dam inside the Narmada River on an islet called Sadhu bet.

The website says: “A 13km. long water body (pond) will create an excellent tourist spot with available infrastructure on both the banks.

The Gujarat Government wants to forcibly take over agricultural land at low cost, it wants to ensure that workers are paid low wages, and it will do its best to ensure that industrialisation does not confront ‘stupid’ hurdles like workers rights and environment laws

The Statue of Unity is planned to be erected on the river bed downstream of the main dam in the Garudeshwar Weir pond. A permanent standing water pool in and around the Statue of Unity will be created by Garudeshwar Weir, which will enable boating activity around the statue.”

The estimated cost of the project is more than Rs. 2,500/- corers (Rs 2063 crores is the cost of “DESIGN, ENGINEERING, PROCUREMENT CONSTRUCTION, OPERATION AND MAINTENANCE OF THE STATUE OF UNITY D/S of Sardar Sarovar Dam, Village Kevadia Ta. Nandod, District of Narmada Gujarat State, India” as per tender notice, see: http://www.statueofunity.in/tendernotice.html). The Government of Gujarat website (http://www.statueofunity.in/) clearly states that “A monument, that will not just be a mute memorial like the rest, but a fully functional, purpose-serving tribute that will boost tourism and facilitate development in the surrounding tribal areas”.

The key issues that beg immediate scrutiny are (1) The project clearly needs environment clearance under the EIA notification of September 2006, but has not applied for or obtained the clearance at any stage. (2) The Shoolpaneshwar Sanctuary boundary is touching the Sardar Sarovar Reservoir (as a part of the Environmental Protection measures of the Sardar Sarovar Project, the earlier Dhumkal Sloth Bear Sanctuary was extended to meet the reservoir boundaries and is called Shoolpaneshwar Sanctuary.) Since the statute is only 3.2 kms from the Sardar Sarovar Dam, it is certainly near the Shoolpaneshwar Sanctuary. (3) The Project involves construction on the river bed and the proposed reservoir will be close to the sanctuary in an eco-sensitive zone, and hence will have serious impacts on the ecology and environment. Hence, EIA and EC are crucial. (4) The project will affect the downstream river, its biodiversity, people and livelihoods and other related aspects. (5) A comprehensive assessment of the environmental and social impacts of the ‘Statue of Unity’ and its contribution to the cumulative impact of all the projects and activities in the area has not been done. (6) The project also needs public consultation, but none has happened so far. (7) During the construction of the Sardar Sarovar dam due to hard rock digging, the seismic area already carries the burden of artificial activity in the bed rock and added load in what is deemed geologically a fault line area. Public reports on geotechnical and geological studies on the proposed site have raised issues of structural stability as well as safety. This cannot be taken casually by authorities. The seismic hazard analysis claimed to have been done by the Gujarat Government’s in-house “Institute of Seismological Research” (http://www.statueofunity.in/execution.html#sthash.jEBrofSN.dpuf) or the Geological and Geotechnical investigation commissioned to another government institute WAPCOS cannot be considered credible unless peer reviewed and put in the public domain.

In view of the above facts on record, we demanded that (1) Direct the Government of Gujarat to submit application for environment clearance and till that is obtained, not to do any work related to the project. (2) Direct the Government of Gujarat to immediately stop planned project called ‘Statue of Unity’ and direct them to stop all other activities related to the ‘Statue of Unity’. (3) Declare the action – of the foundation stone installation on 31st October 2013 for the project called ‘Statue of Unity’ – of the Chief Minister of Gujarat State as illegal, in violation of the EIA notification of September 2006 and the Environment Protection Act, 1986.

Till date, we have received no response from the concerned authorities. A reminder was also sent to the concerned authorities. The silence on their part is a criminal act of tacit compliance to all safety and environmental violations perpetrated by the executors of the ‘Statue of Unity Project’, and we assume the concerned authorities acceptance of these violations; hence they too would stand to face the legal consequences. While they have not categorically responded to any of the issues raised, instead you directed the Principal Secretary of Departments of Forest and Environment as well as the Additional Principal Secretary of Narmada, Water Resources, Water Supply and Kalpsar Department of Government of Gujarat to reply to our queries. We have not received any response from these departments, either.

Having laid the foundation stone for this ambitious project which will cost the taxpayers more than 2,500 crores, it is expected from you that you remain abreast of all the details of this project and be responsible for putting them in public domain. You and your office have failed to clarify in response to our letter, or on any public forum, on this critical issue of environmental and safety concerns.

This leads us to assume either the CMO’s complicity and tacit assent to violations of public safety and environmental norms for the Statue of Unity Project, or your official refusal to share key aspects of project and put them in the public domain. Why are you and your office silent on this crucial issue?

(15) Centre and State Government is collectively undemocratically pushing proposed 6000 MW Mithi Virdi Nuclear Power Plant. This is the area where the Manmohan – Modi governments have planned in tandem, to set up a 6000 MW nuclear power plant spread over 777 hectares of prime agricultural land, against which the local villagers have led a consistent, vocal protest.

Orchards of mangoes, chikoos, coconut trees, lush greenery, sea and ships passing by, describe aptly the Mithi Virdi – Jaspara area in the Talaja block of Bhavnagar district. This lush green area is the irrigated region of Shetrunji dam. In a time when `Special Investment Region’ has become the most lobbied term in the state of Gujarat, this region too should be announced as SAR (Special Agriculture Region) for agricultural purposes. Situated on the Saurashtra sea coast, one might assume that the land is barren and uninhabited, but a visit here belies all these assumptions. It is perhaps from this mistaken presumption that the proposal for a 6000 MW nuclear power plant spread over 777 hectares on this green lush land must have taken place.

Presently on this 777 hectare of land spread in Jaspara, Mithi Virdi, Khadarpar, Mandva stand 50,000 fruit trees. Also, bajra, cotton, groundnut, onions and other crops are sown round the year because of the irrigation facilities. This area is therefore aptly called Bhavnagar’s Food Basket. This is the reason why local villagers who stand to lose not only their land and livelihood but will also be exposed to a potential environmental risk if the nuclear power plant were to come up as the government proposes, are protesting and are resolute in their desire to keep the neighbourhood nuclear power free.

On June 11th, 2013, while giving the so-called CRZ clearance/ recommendation for CRZ clearance to the NPP, the Gujarat Coastal Zone Management Authority (GCZMA) stated that “The Authority deliberated the proposal of Nuclear Power Corporation of India Limited and after detailed discussion, the Authority decided to recommend to the Ministry of Environment and Forests, Government of India to grant CRZ clearance for construction of intake, outfall facilities, jetty and Desalination plant at Village: Mithi Virdi, Dist: Bhavnagar by M/S Nuclear Power Corporation of India Limited, only after submission of the following details to this Department : 1. Detailed note regarding the safety aspects and site selection criteria along with its advantage for this site and submit to this Department. 2. A site visit should be carried out by GCZMA Member.”

This clearly means that the Gujarat Coastal Zone Management Authorities is not serious about the CRZ clearance. Kindly explain such a dubious illegal action of Gujarat State.

NPCIL needs 81 hectares of forest land in addition to the other land for the nuclear power plant. To facilitate this the Taluka Development Officer (TDO) of Gujarat State sent a letter dated July 15, 2013 to the Sarpanch of Jaspara directing him to pass a resolution on the lines of the copy that he had sent, so as to have the village body’s stamp of approval for the state government transfer of forest land to the NPCIL. In this letter the TDO, instead of seeking the opinion of Gramsabha as per the law for the land transfer, illegally and unconstitutionally orders the Sarpanch to pass the readymade resolution. The Gramsabha of Jaspara unanimously condemned and rejected such an unconstitutional letter of the TDO. The Gramsabha unanimously resolved not to hand over the forest land for non-forest use to be handed over the NPCIL.

Is this the new way of getting the consent from the villagers by Mr. Modi’s Gujarat State?

(16) The Gujarat Government wants to forcibly take over agricultural land at low cost, it wants to ensure that workers are paid low wages, and it will do its best to ensure that industrialisation does not confront ‘stupid’ hurdles like workers rights and environment laws. It is evident from what the then Finance Minister of Gujarat, Mr. Vajubhai Vala, said while addressing a day-long pre-Vibrant Gujarat Summit seminar at Ahmedabad Management Association on ‘Industry Responsive Skill Development: The Emerging Trends in Gujarat’ on January 11, 2011: “A farmer engaged in agriculture on a five acre plot will earn enough only for his family. But if an industry is set up on that land, it will provide sustenance to families of 25-30 thousand workers.” He asked local industrialists not to spoil workers by giving them more than what is rightfully due to them. Thus, it is evident that for the Government of Gujarat, ordinary people do not matter at all. Kindly clarify your position on the viewpoint of your then Finance Minister of Gujarat.

There is little to debate regarding the factual basis underlying our concerns. I have also made our perspective clear: the environment and the well-being of people in general should be treated with more respect than industrial/profit-making interests. By writing this letter, I am soliciting your stance on these issues in writing. In the interest of democracy and transparency, I feel that you will clarify your position and you will not keep silent on these issues.

French consular official Pascal Mazurier to face additional charge of sodomy

Pascal -Mazurier

By Team FI

Pascal Mazurier, the French consular official who is facing trial for allegedly raping his three-and-a-half year old daughter, will be charged with committing sodomy under section 377 of the Indian Penal Code (IPC).

B.T Venkatesh, special public prosecutor in this case told media persons that the offence of sodomy has been included as an additional charge against the accused and the court will frame charges against him on March 15 on this count too.

Mazurier, who is on bail in the sexual abuse case, had earlier filed an application in the trial court seeking an order to discharge him from the criminal case on the grounds of insufficient evidence. However sessions judge Shubha Gowdar dismissed his petition in January this year. On 10th February the court framed charges of rape against Mazurier.

The criminal case of rape was filed by Mazurier’s wife Suja Jones after medical examination of their minor daughter confirmed rape.

The French counsel in India had dismissed the case as a marital feud, sparking criticism from women’s rights and child rights organizations. If convicted, Mazurier faces life imprisonment.

Related article: Letter of a child yearning for justice

Indian feminists issue Womanifesto on March 8

Anti-rape-protest-India

Feminists issue a Womanifesto today in New Delhi declaring their stake in the national elections

By Team FI
On International Women’s Day, keeping the upcoming Lok Sabha election in mind, women’s groups and feminists in India have released a ‘Womanifesto’ – a six point plan to ensure gender equality. Demanding an end to the treatment of women who constitute nearly half of the electorate as politically unimportant, activists are seeking endorsements from political parties and candidates who are contesting the 2014 Loka Sabha elections.

The full text of the Womanifesto:
A freedom movement for women has caught fire. Citizens across the country are demanding an end to the generations-deep violence and suppression faced by hundreds of millions of Indian women and girls. Voters are calling on elected officials to commit the resources and political will for change now. This Indian Womanifesto is a 6-point plan critical to the freedom and safety, equality and flourishing of India’s women and girls. All candidates for the 2014 Lok Sabha should commit to:

1. Educate for equality: We will implement comprehensive, well-funded and long-term public education programmes to end the culture of gender-based discrimination and violence. These will include: SMS, radio and TV public service campaigns, accessible lesson plans for schools, modules for training teachers and to train professionals such as doctors and lawyers. To this end we will reach men, women, boys and girls in both urban and rural areas.

2. Make laws count: We will ensure each government agency produces a detailed action-plan to implement laws to end violence against women, and we will fund it. We will work with state governments to provide comprehensive services to women who are victims of violent crimes, helping them to fund and set up one-stop, 24-hour crisis centres and safe shelters in each police district, and to give swift financial compensation. We will create and fund a comprehensive scheme to prevent sexual abuse of children, including safe childcare for children in villages and urban jhuggis, and awareness campaigns among children and parents. We will work with state governments to establish responsive and fair fast track courts for crimes of violence against women and raise the number of judges to 30 per 100,000 population. We will also ensure increased access to accountable legal aid, ensure that money damages are rapidly paid by the State in cases of sexual violence, and create robust witness protection programmes.

3. Put women in power: We will support the Women’s Reservation Bill in the Lok Sabha, and ensure that women will be represented in all councils, committees and task forces related to policy and practice across the board. We will support the adoption of a Code of Conduct to disqualify electoral candidates who have committed offences of gender-related violence and end misogynist comments and behaviour in the Lok Sabha. We will strengthen the autonomous functioning of the National and State Commissions for Women, with experienced professionals being selected through a transparent process.

4. Police for the people: We will establish and enforce a comprehensive response protocol for crimes against women, and publicise it. We will work with state governments to change service rules and ensure police and prosecutorial recruitment, promotion and penalties are made on attitudes and performances based on gender. We commit to implementing police reforms and to ensure that police personnel who breach the new procedures are investigated and disciplined accordingly. We will also establish rape crisis response teams, with rural and urban pilot projects. There will be zero tolerance of moral policing by Statenon-State actors.

5. Swift, certain justice: We will support amendments to laws that perpetuate violence and discrimination against women and sexual minorities, and those that directly/indirectly sanction discrimination against women on the basis of religion, caste, sexuality, age, economic status or disability. We will stringently implement the Pre-Conception and Pre-Natal Diagnostics Technique Act. We will support the amendment of existing laws, to remove the marital rape exemption, repeal Section 377 IPC and make sure that the rape of any person is criminal. We will change the law so that consenting couples aged 16 and 17 do not fall foul of rape laws. We will remove the impunity to perpetrators of custodial rape under the Armed Forces Special Powers Act and will appoint special commissioners in conflict areas to monitor and prosecute sexual offences. We will enact the Prevention of Atrocities (Amendment) Bill to stop crimes against dalit and adivasi women and commit to a strong law against communal violence that holds state and non-state actors accountable. We will take strong action against racial discrimination and violence against women from the North-East. We will push to enact a special law to combat honour crimes. We will take steps to bring speedy justice in long-pending cases of communal and caste massacres, as well as custodial rapes.

6. Economic flourishing: We will ensure secure, dignified, remunerative employment for women. Action plans will be created to secure equal pay for equal work in all sectors; provide creches and other critical support to MNREGA workers; rights, dignity and minimum wage to all women workers in the organised and unorganised sectors. We will grant government employee status to workers in ‘voluntary’ schemes where women work with informal honorariums. We will push to amend the law to address the range of unfair discrimination at work, including in the unorganised sector and we commit to implementing the Central Government mandate under the sexual harassment law. We will bring universal, non-contributory old age pensions for women. We will create action plans to accelerate quality education for girls. We will devise a scheme to ensure that women achieve equal property rights in natal families and fair shares through marriage. Public toilets shall be set up, especially in the poorest areas, and all women will have access to regular, safe public transport.We will ensure development justice for women and respect community rights to resources. All action plans will include infrastructure, personnel, training, monitoring and evaluation, resourced by central finances.

Rights of Persons with Disabilities Bill futile and dangerous

disability-rights-india

Activists working for the rights of the disabled urge the President to use discretionary powers to reject the promulgation of this Bill into an Ordinance

By Team FI
Organisations working for the rights of the disabled have requested the President of India to reject the Union Cabinet proposal to promulgate of the Rights of Persons with Disabilities Bill (the RPD Bill) as an Ordinance. The request was made in a letter signed by organisations across the country which termed the Bill as a “disservice to the ideals of persons with disabilities who expressed their views in the consultative process”. The letter called the Bill a regressive move and urged the President to let it be reconsidered and debated in Parliament.

“The Bill fails in its obligations to enforce the United Nations Convention on the Rights of Persons with Disabilities with its failure to adequately ensure the rights of women with disabilities, the rights of persons legally barred from exercising legal capacity, the rights of persons with disabilities who have been forced to live in institutions against their consent, the rights of persons with disabilities to the acknowledgment of their language, and the rights of all persons with disabilities to access, without any restrictions, to all places open to the public, among many, many other rights,” informed the letter.

The letter stated that the Bill, which supposedly extends the benefits for the disabled as under the current law (Persons with Disabilities – The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995.) does so only for persons with “persons with the ‘scheduled’ disabilities who are certified to have more than 40% of the disability – termed as persons with “benchmark disabilities” as certified by the certifying authority under the Bill.” This, the letter says, does not remove the uncertainty whether the persons certified under the earlier law would need further certification. Further such a clause puts the responsibility on the disabled person to provide such certification, because there is no other option.

The letter termed some of the provisions under the law “dangerous”. The termination of pregnancy of women with disabilities without her consent is penalised but it adds that it can be done “in severe cases of disabilities”. Such disabilities have not been defined in the Bill. Such an action can be based just on the opinion of any medical practitioner and the consent of the disabled person’s guardian. The letter argues that such a provision threatens “the reproductive rights of women with disabilities across the board.”

Another provision that is cause for concern is again the lack of rules and regulations when it comes to transferring children with disabilities to a special school. The words used are “if necessary” and the problem is that there is no rules or regulations given that would define what “a necessity” is and when would be termed as one. It also does not say clearly that who will have this responsibility to determine the necessity. This would mean any child across the board could be taken out of the school in their neighbourhood and be transferred to a special school. “The same applies to the provisions relating to the failure to recognize the right of legal capacity for persons with disabilities in the Bill approved by Cabinet,” says the letter.

Besides for this new certification (and the extended list of impairments) would need Rules that would lay down the process of applying for and the issuing of the certificate of disability. The problem is that to make these Rules, there is a long and drawn procedure. First the draft rules must be submitted by the department to the Ministry of Law and Justice and then it should be published to invited comments for a certain period. Once the comment period has closed, the Department then has six months to finalise the Rules. And only after this is done, the government can set up bodies that will monitor the rights of the disabled et al. Therefore till then, the new Bill would stand ineffective.

Here is the full text of the letter:
Dear Sir,

Subject: Please reject the proposed promulgation of the Rights of Persons with Disabilities Bill by way of Ordinance

We, the persons and organizations listed at the end of this petition, request the exercise of your inherent discretionary powers in rejecting the proposal of the Union Cabinet towards the promulgation of the Rights of Persons with Disabilities Bill (the RPD Bill) as an Ordinance. We state that a vast number of organizations representing persons with disabilities, across disabilities from all parts of the Country, from both urban and rural areas, representing men and women with disabilities alike, are unanimous in the view that far from being enacted with such urgency, the Bill must be in fact reconsidered in its entirety by being placed before the appropriate Parliamentary Committee, which was in fact pointed out by several Members of Parliament when the Bill was introduced in the Rajya Sabha.
An ideal rights statute should pay tribute to the rights laid down by judicial precedent, if not enhance them. The proposed Bill does nothing of the sort.
This Bill was meant to be the ultimate Document of Rights and means of enforcement of rights for persons with disabilities. Till now, Courts realized rights through provisions of the Constitution of India, and this resulted in landmark rulings – on the reproductive rights of women with intellectual disabilities (Suchita Srivastava vs. Chandigarh Administration, 2009), interpretation of the 3% reservation rule in Government Sector Jobs (Union of India vs. National Federation for the Blind, 2013), and political participation (Disabled Rights Group vs. Chief Election Commissioner, 2007) being examples at the Supreme Court level. An ideal rights statute should pay tribute to the rights laid down by judicial precedent, if not enhance them. The proposed Bill does nothing of the sort.
The Bill fails in its obligations to enforce the United Nations Convention on the Rights of Persons with Disabilities with its failure to adequately ensure the rights of women with disabilities, the rights of persons legally barred from exercising legal capacity, the rights of persons with disabilities who have been forced to live in institutions against their consent, the rights of persons with disabilities to the acknowledgment of their language, and the rights of all persons with disabilities to access, without any restrictions, to all places open to the public, among many, many other rights. Over the last one month, it has been pointed out by Disability Rights Activists, Academicians, and even Members of Parliament, that the Bill does disservice to the ideals of persons with disabilities who expressed their views in the consultative process, and can only be termed as regressive. The least it deserves is the opportunity to be debated by Parliamentarians, and not passage through the “ordinance route”.

India has an already existing law which relates to Persons with Disabilities – The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995. The RPD Bill is touted for expanding the definition of disability and the scheduling of 19 impairments, including the 6 impairments which were recognized under the 1995 Act as well, as “specified disabilities”. However, most of the benefits under the Bill which exist – including the increased percentage of reservations in employment and higher education – extend only to persons with the “scheduled” disabilities who are certified to have more than 40% of the disability – termed as persons with “benchmark disabilities” as certified by the certifying authority
under the Bill. Certifying authorities are to be notified by the appropriate Government under Section 56.

For persons who were earlier certified under the 1995 Act, Section 117 of the RPD Bill states that while the 1995 Act is repealed, anything done or any action taken under the said Act, shall be deemed to have been done or taken under the corresponding provisions of this Act. However, unlike other Statutes like the Motor Vehicles Act 1989 (Section 217 (2) (b)), the Trademarks Act, 1999 (Section 159), this “repeals and savings clause” does not reflects legislative effort to remove uncertainty, if any, as regards certificates under the repealed Act which will create huge problems at the lower levels of governance, as now all benefits, including social security and poverty alleviation schemes depends on the certification as a “benchmark disability”. The onus cannot be on persons with disabilities to seek clarifications from Courts as to the validity of existing certification, but that is the only option under this Bill.

With regard to new certification, particularly of the newly recognized impairments, the Bill provides that the Central Government shall make Rules for manner of application for the issuance of the certificate of disability and form of certificate of disability. Without the Rules on the Certification, the 13 additional disabilities for whom this Bill was to be a “game changer” get very little besides a (highly unsatisfactory) policy document. Even with regard to the overlapping 6 impairments, the method of certification will differ as the previous Rules will also stand repealed. In the case of persons earlier certified to have “mental retardation”, new certification would have to be used to place them under the specific category of specified disability under the new Law, as the category itself has been removed. In light of the inclusion of newer disabilities and the excessive problems laid down in the assessment methods which exist in respect of the ones already covered under law – including the four disabilities covered under the National Trust Act – this process will be long and will have to be comprehensive.

The procedure for Rule Making under the Bill requires previous publication. For Rules which have the mandate of “previous publication”, Chapter 11.2 of the Manual of the Ministry of Parliamentary Affairs explains that the Department must first put out draft rules, place them before the Ministry of Law and Justice, and then publish them for comments. There is an elaborate process for these rules and the concerned Department will have up to 6 months from the date of closing of comments to finalize the Rules. Even bodies appointed for monitoring of the rights of persons with disabilities under the Bill, setting up standards with regard to accessibility etc. are all to be constituted subsequent to the framing of Rules, which means that in case of any grievances, there is effectively very little option for redressal under the Ordinance.

Other substantive law of the Bill which does not require Rules for its existence, however, is downright dangerous. The penal offence of terminating the pregnancy of a woman with a disability without her express consent except in cases where medical procedure for termination of pregnancy is done in severe cases of disability (undefined under the Bill) and with the opinion of a registered medical practitioner and also with the consent of the guardian of the woman with disability will come into force, threatening the reproductive rights of women with disabilities across the board. The provisions which allow for children with benchmark disabilities to be denied education in neighbourhood schools and forcing them to be sent to special schools if necessary threatens to be applied across the board indiscriminately with no rules or regulations to clarify when this necessity arises and who is to determine the necessity. The same applies to the provisions relating to the failure to recognize the right of legal capacity for persons with disabilities in the Bill approved by Cabinet.

There is also the question of the reservations in employment and higher education which were promised under the Bill. Since the 1995 Act will stand repealed, along with the Office Memoranda, Rules and Notifications issued under it as delegated legislation, and as there will be no regulations in place under the proposed 2014 Ordinance, the manner in which these reservations are to take place is in question. The provisions on reservation are controversial as it is, being violative of Supreme Court precedent, and without the necessary time on account of the General Elections to frame Rules for its effective implementation, (which are required, per procedure, to be laid before the Ministry of Law) the danger is that an entire year’s opportunity of reservations in higher educational institutions as well as Government Employment may be lost even for those who had the right to seek reservations under the 1995 Act.

We do hope that you will understand the futility and danger in the promulgation of this Ordinance and that you will use the discretionary powers vested in you as the Head of the Executive to reject this Ordinance.

Thanking you,

Best regards,

Prepared by:

Amba Salelkar
Inclusive Planet Centre for Disability Law and Policy
amba.salelkar@inclusiveplanet.org.in

Supported by:

Anand Krishnamoorthi, Chennai

Anita Ghai, Department Of Psychology, Jesus and Mary College, New Delhi

Meenakshi B., Equals, Chennai

Nakul Shenoy, Bangalore

Pavan Muntha, Swadhikaar, Hyderabad

Prateeksha Sharma, Executive Director, Hansadhwani Foundation

Shrinath Sundaram, Chennai

Sumant Srivathsan, Bangalore

Tina Minkowitz, Center for the Human Rights of Users and Survivors of Psychiatry