LAW AND POVERTY

JAMIA MILIA ISLAMIA

NEW DEHLI
Q1 Elaborate on the concept of Social Justice under Indian Constitution and explain constitution
provision and legislature for empowering the weaker section of India.
ANSWER
The constitution of India was adopted on November 26, 1949. Some provision of the constitution
came into force on same day but the remaining provisions of the constitution came into force on
January 26, 1950. This day is referred to the constitution as the “date of its commencement”, and
celebrated as the Republic Day. The Indian Constitution is unique in its contents and spirit.
Through borrowed from almost every constitution of the world, the constitution of India has
several salient features that distinguish it from the constitutions of other countries.

Bharat Ratna Babasaheb Dr. B.R. Ambedkar, the Chief Architect of Constitution of India, is the
man of millennium for social justice, in the sense that he became the deliverer of or the Messiah
of the Dalits, the erstwhile untouchables, Other Backward Classes (OBCs), and women,
constituting 95% of Hindu population. That big segment of population had been forced to live at
a sub-human level from time immemorial, under caste system, sanctioned by Hindu scriptures.
He was the man of millennium for social justice, since he was the first man in history to
successfully lead a tirade of securing social justice to the vast sections of Indian humanity, with
the help of a law, which practically repealed the concerned portions of Hindu scriptures.

Social justice denotes the equal treatment of all citizens without any social distinction based on
caste, colour, race, religion, sex and so on. It means absence of privileges being extended to any
particular section of the society, and improvement in the conditions of backward classes (SCs,
STs, and OBCs) and women. Social Justice is the foundation stone of Indian Constitution. Indian
Constitution makers were well known to the use and minimality of various principles of justice.
They wanted to search such form of justice which could fulfill the expectations of whole
revolution. Pt. JawaharLal Nehru put an idea before the Constituent Assembly
“First work of this assembly is to make India independent by a new constitution through which
starving people will get complete meal and cloths, and each Indian will get best option that he
can progress himself.

Social justice found useful for everyone in its kind and flexible form. Although social justice is
not defined anywhere in the constitution but it is an ideal element of feeling which is a goal of
constitution. Feeling of social justice is a form of relative concept which is changeable by the
time, circumstances, culture and ambitions of the people. Social inequalities of India expect
solution equally. Under Indian Constitution the use of social justice is accepted in wider sense
which includes social and economical justice both. According to Chief Justice Gajendragadkar.
“In this sense social justice holds the aims of equal opportunity to every citizen in the matter of
social & economical activities and to prevent inequalities”.

The Constitution of India has solemnly promised to all its citizens justices-social, economic and
political; liberty of thought expression, belief, faith and worship; equality of status and of
opportunity; and to promote among the all fraternity assuring the dignity of the individual and
the unity of the nation. The Constitution has attempted to attune the apparently conflicting claims
of socio-economic justice and of individual liberty and fundamental rights by putting some
relevant provisions.

Article 19 enshrines the fundamental rights of the citizens of this country. The seven sub-clauses
of Article 19(1) guarantee the citizens seven different kinds of freedom and recognize them as
their fundamental rights. Article 19 considered as a whole furnishes a very satisfactory and
rational basis for adjusting the claims of individual rights of freedom and the claims of public
good.

Articles 23 and 24 provide for fundamental rights against exploitation. Article 24, in particular,
prohibits an employer from employing a child below the age of 14 years in any factory or mine
or in any other hazardous employment. Article 31 makes a specific provision in regard to the
fundamental right to property and deals with the vexed problem of compulsory acquisition of
property.

Article 38 requires that the state should make an effort to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice social, economic
and political shall inform all the institutions of national life. Article 39 clause (a) says that the
State shall secure that the operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular provide free legal aid, by suitable legislation or schemes, or
in any other way, to ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.
Article 41 recognizes every citizen’s right to work, to education and to public assistance in cases
of unemployment, old age, sickness & disablement and in other cases of undeserved want.
Article 42 stresses the importance of securing just and humane conditions of work and for
maternity relief. Article 43 holds before the working population the ideal of the living wage and
Article 46 emphasizes the importance of the promotion of educational and economic interests of
schedule castes, schedule tribes and other weaker sections.

The social problem presented by the existence of a very large number of citizens who are treated
as untouchables has received the special attention of the Constitution as Article 15 (1) prohibits
discrimination on the grounds of religion, race, caste, sex, or place of birth. The state would be
entitled to make special provisions for women and children, and for advancement of any social
and educationally backward classes of citizens, or for the SC/STs. A similar exception is
provided to the principle of equality of opportunity prescribed by Article 16 (1) in as much as
Article 16(4) allows the state to make provision for the resolution of appointments or posts in
favour of any backward class of citizens which, in the opinion of the state, is not adequately
represented in the services under the state. Article 17 proclaims that untouchability has been
abolished & forbids its practice in any form & it provides that the enforcement of untouchability
shall be an offence punishable in accordance with law. This is the code of provisions dealing
with the problem of achieving the ideal of socio- economic justice in this country which has been
prescribed by the Constitution of India.

The social justice scenario is to be investigated in the context of two streams of entitlements: (a)
sustainable livelihood, which means access to adequate means of living, such as shelter, clothing,
food, access to developmental means, employment; education, health, and resources; (b) social
and political participation (enabling or empowering means), which is built on the guarantee of
fundamental rights, and promotion and empowerment of the right to participation in the
government, and access to all available means of justice, and on the basis of which “justice as a
political programme” becomes a viable reality. We require therefore a study based on select
illustrations of various issues relating to government policies on topics such as: (a) the right to
food and water; (b) housing, which includes resettlement and rehabilitation; (c) access to
education, (d) access to provisions of health and healthcare, (e) right to work, and (f) access to
information and the right to communication. In short, one of the important ways in which the
inquiry will proceed will be through taking stock of various forms that have occasioned the
articulation of ideas of social justice. Governmental justice consists of various welfare schemes,
law, legal literacy, administrative forms of arbitration such as tribunals, boards, courts, public
interest litigation, new legal education, plus the constitutional idea of protection of weaker
sections of the society and introduction of positive discrimination.
Q2 Write an essay on the problem of communal violence in India and explain compensation to
the victims of crime especially to provished in communal riots or civil Disturbances and the
problem of law in India.
ANSWER
To understand the problem of Communal Violence in India, first we have to know about the
concept of communal violence. Communal Violence involves people belonging to two different
religious communities mobilised against each other and carrying the feelings of hostility,
emotional fury, exploitation, social discrimination and social neglect. The high degree of unity in
one community against another is built around tension and polarisation. The targets of attack are
the members of the ‘enemy’ community. Generally, there is no leadership in communal riots
which could effectively control and contain the riot situation. It could thus be said that communal
violence is based mainly on hatred, enmity and revenge.

Features of Communal Riots:

A probe of the major communal riots in the country in the last five decades has revealed that:

(1) Communal riots are more politically motivated than fuelled by religion. Even the Madan
Commission which looked into communal disturbances in Maharashtra in May 1970 had
emphasised that “the architects and builders of communal tensions are the communalists and a
certain class of politicians—those all-India and local leaders out to seize every opportunity to
strengthen their political positions, enhance their prestige and enrich their public image by giving
a communal color to every incident and thereby projecting themselves in the public eye as the
champions of their religion and the rights of their community”

2) Besides political interests, economic interests to play a vigorous part in fomenting communal
clashes.

(3) Communal riots seem to be more common in North India than in South and East India.

(4) The possibility of recurrence of communal riots in a town where communal riots have
already taken place once or twice is stronger than in a town in which riots have never occurred.

(5) Most communal riots take place on the occasion of religious festivals.

(6) The use of deadly weapons in the riots is on the ascendancy.

Incidence of Communal Riots:

In India, communal frenzy reached its peak during 1946-48 whereas the period between 1950
and 1963 may be called the period of communal peace. Political stability and economic
development in the country contributed to the improvement of the communal situation.

The incidences of rioting shot up after 1963. Serious riots broke out in 1964 in various parts of
East India like Calcutta, Jamshedpur, Rourkela and Ranchi. Another wave of communal violence
swept across the country between 1968 and 1971 when the political leadership at the centre and
in the states was weak.

The communal riots in Uttar Pradesh, Gujarat, and Andhra Pradesh in December, 1990, in
Belgaum (Karnataka) in November 1991, in Varanasi and Hapur (Uttar Pradesh) in February
1992, in Seelampur in May 1992, in SamaipurBadli in Delhi, Nasik in Maharashtra, and Munthra
near Trivandrum in Kerala in July 1992, and in Sitamarhi in October 1992—all point out the
weakening of communal amity in the country.

The Sangh Pariwar leaders claimed that India is a Hindu Rashtra that only the Hindu culture is
the authentic Indian culture, that Muslims are actually Mohammadi Hindus, and that all
Hindustanis are by definition Hindus. It is such aggressive approach of Hindu and Muslim
fanatics that leads to communal riots. While 61 districts out of 350 districts in India were iden-
tified as sensitive districts in 1961, 216 districts were so identified in 1979, 186 in 1986, 254 in
1987 and 186 in 1989.

Bootleggers and land builder mafia had also played an important role in spreading communal
violence. Thus, return of communal riots in different states from time to time even now points
out that so long as the political leaders and religious activist continue using communalism as a
powerful instrument to achieve their goal or so long as religion remains politicized, our country
will remain ever so vulnerable to communal tension.

Causes of Communal Violence:

There are several factors of it, but we are only discussing ten major factors on it and they are:

social, religious, political, economic, legal, psychological, administrative, historical, local, and
international.
The social factors include social traditions, stereotyped images of religious communities, caste
and class ego or inequality and religion-based social stratification;

The religious factors include decline in religious norms of tolerance and secular values, narrow
and dogmatic religious beliefs, use of religion for political gains and communal ideology of
religious leaders;

The political factors include religion-based politics, religion-dominated political organisations,

canvassing in elections based on religious considerations, political interference in religious
affairs, instigation or support to agitations by politicians for vested interests, political
justification of communal violence, and failure of political leadership; to contain religious
feelings;

The economic factors include economic exploitation and discrimination of minority religious
communities, their lop-sided economic development, inadequate opportunity in competitive
market, non-expanding economy, displacement and non-absorption of workers of minority
religious groups, and the influence of gulf money in provoking religious conflicts;

The legal factors include absence of common civil code, special provisions and concessions for
some communities in the Constitution, special status of certain states, reservation policy, and
special laws for different communities;

The psychological factors include social prejudices, stereotype attitudes, distrust, hostility and
apathy against another community, rumor, fear psychosis and misinformation

The Administrative factors include lack of coordination between the police and other
administrative units, ill-equipped and ill-trained police personnel, inept functioning of
intelligence agencies, biased police officers, and police excesses and inaction;
The historical factors include alien invasions, damage to religious institutions, proselytisation
efforts, divide and rule policy of colonial rulers, partition trauma, past communal riots, old
disputes on land, temples and mosques;

The local factors include religious processions, slogan raising, rumors, land disputes, local anti-
social elements and group rivalries; and the international factors include training and financial
support from other countries, other countries’ machinations to disunite and weaken India, and
support to communal organisations.
One of the issues which has been agitating both Muslims and Hindus in recent years is the
Muslim Personal Law. With the decision of the Supreme Court in favor of Shah Bano, and its
advice in April 1995 to the government that it should enact a uniform civil code, the Muslims
fear that their personal law is being interfered with. The politicians also exploit the situation to
keep themselves in power.

These above discuss points are the main problem of the Communal Violence and in India and
also the cause of violence

Measure for controlling the Communal riots

The police should be held fully responsible for the control of communal riots. If a concerned
officer fails to check violence within 24 hours, he or she should be transferred or suspended.

Police should be given specialised training to handle communal riots. In some of the recent riots,
more people were killed in police firing than in rioting.

Non-lethal rubber bullets and water canons should be made available to the police.

In order to spare innocent lives, police officers with guns must be trained as expert shooters.
Preventive arrests should be made mandatory.

The intelligence machinery must be toned up, and competent and secular officers should be
trained in intelligence gathering.

Absence of codified guidelines paralyses the administration. Among all states, the West Bengal
government has succeeded in damping major communal disgruntlement (except after the Babri
Masjid demolition, which was soon controlled).

There should be refresher training for the entire police force. The Centre for Study of Society
and Secularism, Mumbai, has conducted more than 50 workshops for the Mumbai police and for
the police officials in Thane, Nashik, Aurangabad, Bangalore, Mysore, etc. Such workshops are
particularly necessary for the field constabulary and lower-level officials. Unfortunately, these
re-orientation courses are seldom organised.

The police force should also have representation from minority community and Dalits. Riot
prevention calls for the screening of recruits for their secular credentials.
The criminal justice system especially arising out of communal violence has also been criticized.
Suggestions have been made to reform police procedures, and practices and to set up special
investigating and prosecuting agencies, for speedily bringing to justice all those who are
involved in rioting. The book, Riots and Pogroms, Edited by Paul R Brass, underlines the need
for certainty of punishment of the guilty and adequate compensation to the innocent victims for
which a law needs to be enacted.

After looking all the aspect of communal violence in India whether it cause or reason, concept or
the measure one thing I could say that the main problem of communal violence lies in the social
structure of India Society and second problem is Illiteracy among in citizens.

Compensation for victims of Crime and laws

In India, there are no effective laws for the victims of the Crime if there is any incident happen in
the country after the happen riots nothing given to any victim and because of that the life of these
victims become venerable. Governments only gave very less amount of compensation for
restoration of these victims life. Law also not to effective to control the riots and after the
happens the act law not to justice to the victims.
Q3 Write an essay on Bandhua Mukti Morcha and their legal battle for abolishing the bonded
labour system and judicial effectiveness in India.

ANSWER

In India, the exploitation of man remained prevalent in the name of beggar and riot for years.
The term ‘bonded labour’ or Bandhuamazdoor is of recent origin. Despite the abolition of the
zamindari system, land reforms, Bhoodan movement, enactment of legislation (Bonded Labour
Abolition Act, 1976), establishment of Panchayati Raj, interest shown by Social Action Groups
and spirited individuals from society, lakhs of bonded labourers continue to be exploited and
carry the yoke of neglect, suffering and frustration in abject silence.

The ‘bonded labour system’ refers to “the relationship between a creditor and a debtor who
obtains loan owing to economic compulsions confronting his day-to-day life, and agrees to abide
by the terms dictated by the creditor”.

The 1976 Bonded Labour (Abolition) Act defines ‘bonded labour system’ as “the system of
forced labour under which a debtor enters into an agreement with the creditor that he would
render service to him either by himself or through any member of his family or any person
dependent on him, for a specified or unspecified period, either without wages or for nominal
wages, in consideration of loan or any other economic consideration obtained by him or any of
his ascendants, or in pursuance of any social obligation, or in pursuance of any obligation
devolving on him by succession”

The agreement has other consequences too, such as, forfeiting the debtor the freedom of
employment, denial of freedom of movement in any part of the country, and denial of the right to
sell at market value any of his property or product of his labour.

The term ‘bonded labour’ has been defined by the National Commission on Labour as “labour
which remains in bondage for a specific period for the debt incurred”. The Commissioner for
Scheduled Castes and Scheduled Tribes explained the term bonded labour in its 24th report as
“persons who are forced to work for the creditors for the loan incurred either without wage or on
nominal wage”.
Causes of Bonded Labour:

The main causes of origin, growth and perpetuation of bonded labour system are economic, the
social and religious factors to support the custom. The economic causes include extreme poverty
of people.

Social factors

High expenses on occasions like marriage, death, feast, birth of a child, etc., leading to heavy
debts, caste-based discrimination, lack of concrete social welfare schemes to safeguard against
hunger and illness, non- compulsory and unequal educational system, and indifference and
corruption among government officials.

Sometimes, exploitation by some persons in a village also compels people to migrate to some
other place and seek not only employment on the employer’s conditions but also get protection
from influential persons. Religious arguments are used to convince the people of low castes that
religion enjoins upon them to serve people of high castes. Illiteracy, ignorance, immaturity and
lack of skill and professional training sustain such beliefs. Broadly speaking, it may be
maintained that bondage originates mainly from economic and social pressures.

Legislation

The pernicious and inhuman, callous, reprehensible practice of bonded labour existed in many
states in India. After independence, it could not be allowed to continue to blight national life any
longer. As such, when the Constitution of India was framed, Article 23 was enshrined in it which
prohibited ‘traffic in human beings’, ‘beggar’ and other similar forms of forced labour.

However, no serious effort was made to give effect to this Article and stamp out the shocking
practice of bonded labour. The Forced Labour (Abolition) Convention adopted by the
International Labour Organisation (ILO) in 1919 was ratified by India only in November 1954.
Judicial Interpretation Enforcing The Constitutional Provisions Vis-À-Vis Bonded Labour

The Hon'ble Supreme Court of India has from time to time interpreted various constitutional
provisions to safeguard the weaker strata of society against the menace of bonded labour. Some
of them are enlisted below for kind consideration.

Peoples' Union For Democratic Rights V. Union Of India

The court held that, "The Union of India, the Delhi Administration and the Delhi Development
Authority cannot escape their obligation to the workmen to ensure observance of the provisions
of various labour law by its contractors and for non-compliance with the laws by the contractors,
the workmen would clearly have a cause of actions against them as principal employers."

The Hon'ble Supreme Court of India dealt with the expression "other similar form of forced
bonded labour" envisaged in Article 23 of The Constitution of India, 1950. The court gave the
expression a wide interpretation to meet the objectives of Article 23. The court held that a person
who has been forced to work as a bonded labour and person who is working as a labour at a rate
lesser than the minimum wage shall be dealt equally.

Badhua Mukti Morcha V. Union Of India,

The Public Interest Litigation was filed before the Supreme Court under Article 32 of The
Constitution of India to issue appropriate directions for prohibition of Bonded Labour.

The court directed the Central Government and the State of Haryana to install washrooms,
suitable drinking facilities, provide medical kits so as to raise the living standards of the
workmen. The court directed the Central Government to conduct inspection every fortnight and
in case, any workman is found in distressed condition, he should be provided medical and legal
assistance.

The court went on to observe that, This right to live with human dignity enshrined in Article 21
derives its life breath from the Directive Principles of State Policy and particularly Clauses (e)
and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection
of the health and strength of workers men and women, and of the tender age of children against
abuse, opportunities and facilities for children to develop in a healthy manner and in conditions
of freedom and dignity, educational facilities, just and humane conditions of work and maternity
relief. These are the minimum requirements which must exist in order to enable a person to live
with human dignity and no State neither the Central Government nor any State Government has
the right to take any action which will deprive a person of the enjoyment of these basic
essentials."

Neerja chaudhary v. State of Madhya Pradesh

It was alleged by the petitioner that in spite of the fact that a long time has elapsed, quite a
number of labourers rescued from Faridabad quarries have not been rehabilitated. It was
contended by the petitioner that the State Government was obligated to overlook the
rehabilitation of rescued labourers and rehabilitation of labourers is necessary so as to ensure
Right to Life guaranteed to them under The Constitution of India, 1950.

The Hon'ble court held that as per the requirements of Article 21 and 23, the bonded labourers
need to be identified, rescued and also rehabilitated. The court highlighted the importance of
rehabilitation observing that in absence of any concrete measures for rehabilitation of rescued
labourers, they would be driven into the state of poverty and substandard conditions again and it
might lead them to the bonded labour system again.

Statutory safeguards against bonded labour

The Bonded Labour System (Abolition) Act (hereinafter referred as "the act", 1976 provided
various safeguards against bonded labour. Some of them are enumerated below:

Under Section 4 of the act, the primary relief that was awarded to the bonded laborers with the
commencement of the act was that the bonded labour stood discharged from any sort of
obligation to provide bonded labour.

Under Section 5 of the act, any custom/agreement whereby bonded labour existed was rendered
void and inoperative.

Prohibition was casted on institution of any suit before any civil court vis-à-vis recovery of
bonded debt.
"Every decree or order for the recovery of bonded debt, passed before the commencement of this
Act and not fully satisfied before such commencement, shall be deemed, on such
commencement, to have been fully satisfied."8

Under Section 7 of the act, any property which is under mortgage vis-à-vis bonded debt shall
stand freed on commencement of the act.

Any person detained in civil prison in pursuance of the bonded debt shall be freed as per the
provisions of the act.

Legal Battle for the Rights of Bonded Labour Judicial interpretation enforcing statutory
provisions vis-à-vis bonded labour

Balram v. State of madhya pradesh

The Hon'ble Supreme Court issued several directions to the Central Government and its' officials
in order to enforce the provisions of the act such as:

Maintain adequate funds for the purposes of the act

The collector and other designated officials to ensure that the stipulated amount reached the
beneficiary i.e. the free bonded labor.

Individual bank accounts to be opened in the name of the beneficiary.

Peoples' union for civil liberties v. State of Tamil Nadu

A writ petition was filed in the year of 1985 highlighting the plight of migrant labourers from
Tamil Nadu in the State of Madhya Pradesh. The court passed an order directing the National
Human Rights Commission to monitor the fulfillment of objectives of the act. The court called
for suggestion by the Government as well. While analyzing the situation at hand, the court
concluded that without chalking out the exit plan on how to rehabilitate the bonded labourers,
their release would render them languishing in the streets without any source of livelihood. In
pursuance of which the court issues certain directions such as:

States and Union Territories to submit their status report in the form prescribed by the National
Human Rights Commission in every six months
Vigilance committees shall be constituted at district and sub-divisional levels in accordance with
S. 13 of the act

It was the duty of the states and the union territories to chalk out a plan to rehabilitate released
bonded laborers either by itself or with the aid of the NGOs.
Q4 Discuss the problem faced by indigenous community and Tribal people due to public project
like Dams, Displacement and their Rehabilitation and the laws in India.
ANSWER

Displacement has occurred due to installing major hydropower dam projects, irrigation projects,
coal mining, the widening of national highway, railway lines, parks, sanctuaries and so on. For
the development of projects, a large amount of land is acquired, which results in displacement.
After the 1950s, first-generation leaders considered hydropower projects as ‘the temples of
modern India’. For national interest, a large number of development projects were constructed in
different parts of the country. The first and second five-year plans mainly focused on
industrialization, irrigation projects, dam projects and so on and the displaced people were
neglected under such planning.
Development projects caused socio-economic, ecological and environmental problems in India.
It is even evident today that the economic development strategy in India is largely nurtured at the
cost of the marginalized sections of society such as tribals, Dalits and other lower castes. History
shows that most of the projects are located in the most backward areas of various tribal
communities, in the forest and mountain tracts, which are the traditional habitats of tribes
endowed with rich minerals and other resources and rich flora and fauna. Most of the rivers
originate and drain through several tribal regions.

The problem of displacement is not merely economic; it is also a socio-cultural problem because
it disturbs a network of social relationships supporting an ethos and a way of life. It affects the
entire gamut of traditional activity and an established social order. It forces people to adopt new
ways of occupational activities and an unknown environment. Displaced people are forced to
change their social patterns, without getting any compensation for social costs and, thus, they are
under pressure, causing a situation of socio-cultural stress . People are often forcibly displaced
from their ancestral home which results in disorganized communities, family structure, kinship
system and so on. The affected people are alienated from their traditional land, houses, religious
places, rivers, mountains and traditional places of worship. Culture and way of life are also
disrupted. Involuntary displacement may create psychological depression among affected people
and result in sickness, grief and death. It is found that involuntary resettlement involves forced
relocation of people without proper plans or without the involvement of displaced people.
Displacement causes a dismantled community social life. Displaced people have no access to
basic facilities and natural resources and have to face lots of hardship before and after the
process. People are forcibly displaced and are bound to live in a new environment, a new place
with new people and changed norms and values which lead to a change in the entire
socioeconomic life of the displaced people The experience related to India shows that displaced
people are given monetary compensation and then forgotten. There was no serious thinking on
initiating programmes of income and livelihood restoration for those losing livelihood from
projects. Once compensation was paid for lands acquired for project purposes the displaced
people were expected to proceed with their resettlement on their own . Questions arise regarding
the role and focus of the governments towards the displaced people.

Displacement of tribals has drawn the attention of several scholars. It is estimated that
development schemes like dams, mines, industries and various projects have resulted in the
displacement of about 40 per cent tribals between 1951 and 1991. The illiterate and powerless
Tribals have been compelled to leave their resource rich regions and migrate to other places.

Displacement and law

The Constitution guarantees our rights as citizens. The judiciary is responsible for translating
them into practical terms by trying cases in courts to ensure that these rights are not violated.
But, a number of rights for marginalised communities seem to be lost in translation, because, as
Usha Ramanathan found, despite constitutional guarantees, the law itself is biased against the
protection of rights of the displaced. Statute law, she says, “determines the process by which the
relationship between a community and its resources may be affected, even as it redefines rights.”

The power of the statute, however, goes further: it has a profound influence on judicial
understanding of the problem of displacement. The statute, it will be seen, insidiously but
definitely, determines judicial interpretation of constitutional mandates. It is to this that the lack
of empathy may partially be attributed, when a court finds that 'preferential' treatment of
displaced families would be against the equality promised in the Constitution - even while
accepting the poverty of the displaced.1 Expediency, proferred as an argument by the state, has
struck a responsive chord in the court. Judicial hands-off on matters of policy has given power to
the state beyond legitimated challenge.

Displacement and Rehabilitation

As a society, we would like to achieve both economic prosperity and social justice. Yet, there
seems to be an inherent contradiction in our pursuit of these goals. One possible way to bridge
this gap would be to implement a comprehensive and fair rehabilitation policy for those who
have been displaced by development. In one such incident in 1996, Coal India was seeking a
large World Bank loan to upgrade its mines. Ratnakar Bhengara wrote about how displacement
caused by coal mining goes unquestioned at the level of policy-making. Though Coal India had a
rehabilitation policy that promised employment to those being displaced, Bhengara found that
people were soon disillusioned with this.

Much of the claimed rehabilitation is actually not done. By the government's own admission,
only a small proportion of those displaced are effectively rehabilitated. The coal sector has
effectively rehabilitated less than 35 per cent of displaced people. [Govt of India: 1985]. The
World Bank itself admits that in its former World Bank funded projects of India's coal sector, the
process of rehabilitating project-affected people has not been completed. Finally, in the sense
that this displacement is done against the will of the people, and in that it disrupts their social,
cultural and economic institutions, it is nothing less than a form of structural violence against
them.

Meaning Rehabilitation

The large-scale displacement that had taken place in Singrauli because of the Gobind Sagar
Reservoir and the Rihand Dam (in the 1960s) and later the mega thermal power projects by the
NTPC (in the 1980s) and then coal mining projects by the Northern Coalfields Ltd (NCL). They
examined the issues of resettlements and rehabilitation with a special focus on three phases of
displacement and its consequences in Singrauli. They argued that the people affected by
displacement have never been adequately rehabilitated because the process of rehabilitation does
not take into account the fact that they are accustomed to traditional ways of earning their
livelihoods, and may not have the means or the privilege to be able to pursue alternative
livelihoods.

The displacement for the Gobind Reservoir and Rihand Dam started suddenly in 1960 (without
adequate notice). This resulted in immense problems for the affected villagers. However, the
population in the region was not very high and the government owned large tracts of deforested
lands there. Accordingly, each displaced family was allotted five acres of land. However, almost
20% of the displaced families, a majority of them tribals, left the region, and their whereabouts
remain unknown (Jan Lok Hit Samiti report; Kothari 1988). In the absence of a rehabilitation
policy, people accepted the meagre amount of compensation which was not adequate even to
construct a new house. Over 60% of these displaced families settled close to the reservoir site
(mainly towards the northern stretch), only to be displaced again during the setting up of the
super thermal power projects by the NTPC.

Relocation does not mean Rehabilitation

In an effort to reintroduce the Asiatic lion to the Kuno wildlife sanctuary in 2003, 24 villages
were relocated from the outskirts of the sanctuary which displaced over 5,000 people largely
belonging to the Sahariya tribe.According to Asmita Kabra, the Sahariya had historically been
completely dependent on forest lands for their livelihoods. She wrote that though there were
efforts made to rehabilitate the Sahariya, the results were less than adequate. Consequently, the
tribe remained alienated from their ancestral land. The most significant question that the present
study tries to address relates to the impact of relocation on the living standards and livelihoods of
the affected community. Our experience suggests that in the short run, there has been a very
significant decline in livelihood security, directly attributable to displacement from a resource-
rich forest, and disruption of a well-established livelihood pattern. While the rehabilitation
package offered in this case, as well as the overall attitude of the agency that carried the
relocation out seems to have been a significant improvement over previous recorded instances of
such exercises, it emerges that displacement has nevertheless had a significant negative impact
on the livelihood of the people, at least in the short run. Serious efforts would need to be
undertaken by all relevant state agencies to address this issue urgently. It would require sustained
investments by government and non-government agencies, in the medium to long run, for the
displaced community to be able to reconstruct livelihoods and regain levels that prevailed inside
the sanctuary (and perhaps even improve upon them).

The above given points are the some close observation of mine on the related issue of the
question, In this I tried to give the answer of the question regarding the what are the laws on it
and what are the consequences of the development and what is the meaning of rehabilitation.

In the last I conclude my answer with these word that In India, there is an absence of a uniform
national resettlement and rehabilitation policy. Whatever policies are there for the displaced
people in the country have not focused on the issues of tribal people. they are the worst victims
of development and displacement. The problems of displacement are enormous for them.
Government rethink about this and provide as much benefit as much possible, by doing so our
country progress in both manner social and economical.
Q5 Write an elaborate essay on the concept of Legal Aid and the poor with reference to the Legal
Services Authorities Act.
ANSWER
Legal Aid means giving free legal services to the poor and needy who cannot afford the services
of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an
authority.

Legal Aid is the method adopted to ensure that no one is deprived of professional advice and
help because of lack of funds. Therefore, the main object is to provide equal justice is to be made
available to the poor, down trodden and weaker section of society.

In this regard Justice P.N. Bhagwati rightly observed that:

The legal aid means providing an arrangement in the society so that the missionary of
administration of justice becomes easily accessible and is not out of reach of those who have to
resort to it for enforcement of its given to them by law, the poor and illiterate should be able to
approach the courts and their ignorance and poverty should not be an impediment in the way of
their obtaining justice from the courts. Legal aid should be available to the poor and illiterate,
who don't have access to courts. One need not be a litigant to seek aid by means of legal aid.

Therefore, legal aid is to be made available to the poor and needy by providing a system of
government funding for those who cannot afford the cost of litigation.

Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal
justice is made available to the poor, downtrodden and weaker sections of the society. It is
worthy to mention that the Constitution of India provides2 that State shall secure that the

operation of the legal system promotes justice on a basis of equal opportunity, and shall in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen by reason of economic

or other disability. Constitution of India also makes it obligatory for the State to ensure equality
before law and a legal system which promotes justice on a basis of equal opportunity to all.

Contribution of Judiciary
The Supreme Court of India got a major opportunity to make an emphatic pronouncement
regarding the rights of the poor and indigent injudgment of Hussainara Khatoon where the
petitioner brought to the notice of Supreme Court that most of the under trails have already under
gone the punishment much more than what they would have got had they been convicted without
any delay. The delay was caused due to inability of the persons involved to engage a legal
counsel to defend them in the court and the main reason behind their inability was their poverty.
Thus, in this case the court pointed out that Article 39-Aemphasized that free legal service was
an inalienable element of ‗reasonable, fair and just‘ procedure and that the right to free legal
services was implicit in the guarantee of Article 21.

In the case of Khatri v. State of Bihar, the court answered the question the right to free legal aid
to poor or indigent accused who are incapable of engaging lawyers. It held that the state is
constitutionally bound to provide such aid not only at the stage of trial but also when they are
first produced before the magistrate or remanded from time to time and that such a right cannot
be denied on the ground of financial constraints or administrative inability or that the accused did

not ask for it. Magistrates and Sessions Judges must inform the accused of such rights. The right
to free legal services is an essential ingredient of reasonable, fair and just procedure for a person
accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is
under a constitutional mandate to provide a lawyer to an accused person if the circumstances of
the case and the needs of justice so require…The State cannot avoid this obligation by pleading
financial or administrative inability or that none of the aggrieved prisoners asked for any legal
aid.

In Suk Das v. Union Territory of Arunachal Pradesh, Justice P.N. Bhagwati, emphasized the
need of the creating the legal awareness to the poor as they do not know the their rights more
particularly right to free legal aid and further observed that in India most of the people are living
in rural areas are illiterates and are not aware of the rights conferred upon them by law. Even
literate people do not know what are their rights and entitlements under the law. It is this absence
of legal awareness they are not approaching a lawyer for consultation and advise.
Justice Krishna Iyer, who is crusader of social justice in India, had rightly said that ‗if a prisoner
sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of
appeal inclusive of special leave to the Supreme Court for want of legal assistance, there is
implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, the
power to assign counsel for such imprisoned individual ‗for doing complete justice‘.

The same was observed by Supreme Court in State of Haryana v. Darshana Devi, that "the poor
shall not be priced out of the justice market by insistence on court-fee and refusal to apply the
exemptive provisions of order XXXIII, CPC.

Statutory Recognition

Though there was a statutory procedure providing free legal aid by appointing the advocate for
defending criminal case and by exempting court fees in civil cases, it was not really making any
significant impact on the ability of the underprivileged people to get the judicial redressal for
their grievances. Hence under tremendous constitutional persuasion from the Supreme Court the
Legal Services Authorities Act, 1987 was passed by the parliament of India. The Act prescribes
the criteria for giving legal services to the eligible persons. It makes a person eligible for
assistance under the act if he is -

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the

Constitution;

(c) a woman or a child;

(d) a mentally ill or otherwise disabled person;

(e) a person under circumstances of undeserved want such as being a victim of a mass disaster,
ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

(f) an industrial workman; or

(g) in custody, including custody in a protective home or in a juvenile home

(h) of in a psychiatric hospital or psychiatric nursing home within the meaning of clause

(g) of section 2 of the Mental Health Act, 1987; or

(i) A person whose annual income less than rupees fifty thousand or such other higher amount as
may be prescribed by the State Government.

Bodies under the Act and Their Hierarchy

National Legal Services Authority is the apex body constituted to lay down policies and
principles for making legal services available under the provisions of the Act and to frame most
effective and economical schemes for legal services.

In every State a State Legal Services Authority is constituted to give effect to the policies and
directions of the Central Authority (NALSA) and to give legal services to the people and conduct
Lok Adalats in the State.

District Legal Services Authority is constituted in every District to implement Legal Aid
Programmes and Schemes in the District. The District Judge of the District is its ex-officio
Chairman.

Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal or for
group of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to
organize Lok Adalats.

In order to provide free and competent legal service, the NALSA has framed the National Legal
Service Authority (Free and competent Legal service) Regulations, 2010. The salient feature of
Regulation is engaging senior competent lawyers on payment of regular fees in special cases like
where the life and liberty of a person are in jeopardy.

Supreme Court of India has also set up Supreme Court Legal Services Committee (SCLSC) to
ensure free legal aid to poor and under privileged under the Legal Services Authorities Act. It is
headed by a judge of Supreme Court of India and has distinguished members nominated by
Chief justice of India. The SCLSC has a panel of competent Advocates on record with certain
minimum number of years of experience who handle the cases in the Supreme Court. Apart from
that the SCLSC has full time Legal Consultant who provides legal advice to poor litigants either
on personal visit or through the post.

In last of the answer I conclude my answer with these words, Legal aid is not a charity or
bounty, but is an obligation of the state and right of the citizens. The prime object of the state
should be equal justice for all‖, free legal aid has been held to be necessary adjunct of the rule of
law, the legal aid movement has not achieved its goal. There is a wide gap between the goals set
and met. The major obstacle to the legal aid movement in India is the lack of legal awareness.
People are still not aware of their basic rights due to which the legal aid movement has not
achieved its goal yet. It is the absence of legal awareness which leads to exploitation and
deprivation of rights and benefits of the poor.