PUCL Bulletin,
March 2003
Panchayati
Raj institutions and human rights
By George Mathew
(Excerpts from a long article - Chief Editor.)
Although the Indian independence movement, under the leadership of Mahatma
Gandhi, had villages and their self-governing system at the center, when
the Constitution of independent India was written they did not get a place
in its main body; only a reference in the Directive Principles of state
policy. Therefore the states did not take both the urban and rural local
bodies seriously.
*** *** ***
As a result of campaigns by civil society organisations, intellectuals
and progressive political leaders, the parliament passed on December 22
and 23, 1992 two amendments to the Constitution - 73rd Constitution Amendment
for rural local bodies (panchayats) and 74th Constitution for Amendment
for urban local bodies (municipalities) making them 'institutions of self-government'.
Within a year all the states passed their own acts in conformity to the
amended constitutional provisions.
As a result of these constitutional steps taken by the union and state
government, India has moved towards what has been described as 'multi-level
federalism', and more significantly, it has widened the democratic base
of the Indian polity. Before the amendments, the Indian democracy structure
through elected representatives was restricted to the Indian polity. Before
the amendments, the Indian democratic structure through elected representatives
was restricted to the two houses of parliament, 25 state assemblies and
two assemblies of union territories (Delhi and Pondicherry). And they
had just 4,963 elected members.
Now there are nearly 600 district panchayats, about 6,000 block panchayats,
at the intermediate level and 2,50,000 gram panchayats in rural India
where 72.2 percent of India's population lives. Urban India, with 27.8
percent of India's population, has 96 city corporations, 1700 town municipalities
and 1,900 Nagar panchayats.
*** *** ***
In the traditional Varna system a fifth category is the untouchable or
outcaste. Mahatma Gandhi gave them the name 'Harijans' which means 'children
of god'. But after independence members of the group prefer to call themselves
dalits, meaning oppressed. Constitutionally they have special rights and
today they are known as scheduled castes. In fact after the decentralisation
through the constitutional amendment they were at the receiving end more
than anyone else.
The
father of the Indian Constitution B.R. Ambedkar, himself a member of an
untouchable caste, had stated that the villages were the ruination of
India because a village in India is a den of ignorance, communalism, and
corruption. What he said 50 years ago is still valid in much of India
even after the new panchayat system has been introduced. After the elections,
reports from states showed that the human rights of the dalits were violated
in more than one sense even after strengthening of the local bodies.
The democratic process at the village level in many cases has not given
the strength and power to the participants of that process, namely, the
deprived castes. A study conducted after the 1993 elections in Madhya
Pradesh on the beating up of a dalit panchayat member by the police at
a meeting where the chief executive of the district was present revealed
that the chief executive officer (CEO) visited the villages after a case
was filed on the event with the Human Rights Commission. It was stated
that he asked people not to appear as witness in favour of the dalit member.
The
people were frightened to comment on the issue, as they were afraid of
being harassed by the authorities.
The local bodies elections were a nightmarish experience for the dalits.
Elections could not be held in four gram panchayats reserved for dalits
in some districts of Tamil Nadu - because not a single nomination paper
could be filed in the face of threats from upper-caste people in these
villages. In many areas, dalit candidates are still living in terror,
because they defied the dominant caste of their villages by filing their
nomination papers for different posts in the village councils. Dalit voters
were prevented from voting in many panchayats. A number of houses and
colonies were attacked to intimidate them.
It should be noted that empowering dalits and marginalised groups through
ensuring their participation in the decentralised mechanism was one of
the stated objectives of the central act. However, the ground reality
reflects some negative trends too. It was observed that high caste Hindu
groups resorted to various measures to dilute or sabotage the attempts
to empower marginalised groups especially dalits. There are instances
where high caste groups challenge the reservation for scheduled caste/scheduled
tribes in the court of law, and when this attempt fails they announce
a boycott of elections. There are also numerous cases of violence against
dalits to prevent them from contesting elections or to influence them
to favour other interest groups. If these efforts also fail and elections
do take place, they look for candidates who can be coaxed to carry out
the whims and fancies of the dominant castes. On the other hand if somebody
out of favour of the dominant caste manages to get elected, they do not
cooperate with the person concerned.
Even after coming to positions of power, dalit elected representatives
are restricted in effective exercise of their leadership. This is more
in the case of women dalit members who have to face double oppression.
Instances are not uncommon where the women dalit sarpanches sit on the
floor during the course of the panchayat meetings while the male upper
caste members sit on the chairs. Problems also arise when the gram sachiv
(panchayat secretary) happens to be from the upper caste. On the positive
side it was observed that the presence of a dalit sarpanch or dalit ward
member has greatly contributed to the participation of greater numbers
of the dalit community in gram sabha meetings. Disillusionment arises
when the dalit sarpanchs are forced to give priority to activities favouring
the upper caste members.
*** *** ***
The scheduled tribes or adivasis (original inhabitants) include around
400 aboriginal communities, mainly inhabiting remote and forested areas
of India. They constitute 7.5 per cent of India's population. The 73rd
Constitution Amendment's importance was that it aimed at achieving grass
roots democracy guaranteeing adequate representation to the marginalised
groups like the scheduled castes, the scheduled tribes and women. However,
the 73rd amendment was not automatically applicable to the scheduled areas
(geographical area where the adivasis are concentrated) because of their
unique characteristics and special needs. An amendment act was subsequently
enacted in December 1996 titled, 'The Provisions of the Panchayat (Extension
to the Scheduled Areas) Act, 1996. The scheduled areas and the tribal
areas are specified in accordance with the provisions in article 244 and
fifth and sixth schedules of the Indian Constitution.
The
Extension Act is one of the potent legislative measures of recent times,
which recognises the tribal peoples' mode of living, aspirations, their
culture and traditions. However, studies to assess the implementation
of the Extension Act and to examine as to what extent the 1996 Act was
able to establish grass roots democracy in scheduled areas in accordance
with the ethos of the tribal people reveal that nothing notable has taken
place in these areas and that the condition of the tribals remain more
or less what it was before.
It is a sad commentary on the political will of the state leadership that
several states, e.g., Rajasthan did not amend their Acts according to
the 1996 Amendment Act even after the stipulated time. A brief survey
of the State Acts shows that the states have tried to fulfill the constitutional
mandate half-heartedly and not in its letter and spirit. Some State Acts
do not deal sufficiently with important provisions of the Extension Act
like ownership of minor forest produce, prevention of alienation of land,
control over natural resource, etc. This shows widespread apathy on the
part of the state government towards the tribal areas and their resistance
to give so much power to the tribals. On the other hand violations of
tribal rights take place at regular intervals.
In
December 2001 in the state of Madhya Pradesh, tribals who were relying
on fishing for their livelihood in a reservoir as their sole means of
subsistence were up in arms against the state government as they feared
that steps were being taken to deny them the right to market their produce.
In Gujarat, more blatant violations have taken place recently when the
government denied reservation to tribals just 48 hours before the village
council elections were announced.
Scheduled tribe men and women who get elected to office are not allowed
to function in the decentralised institutions of self-government. Just
like the scheduled caste, the tribals also are not treated with dignity
by the panchayat bureaucracy. Elected tribal women members face violence
and rape if they dare to challenge the authority of the officials or the
powerful.
A tribal woman sarpanch was stripped naked while unfurling the national
flag on August 15, 1998 (independence day) in a district of Rajasthan.
In another case a tribal woman sarpanch in Madhya Pradesh was stripped
naked in a gram sabha meeting because she was not consulting the leader
of the dominant caste. Such violations of human rights are everyday occurrence
in the tribal areas of India, in spite of powerful legislations for decentralised
governance.
*** *** ***
When India was under colonial rule it was only the restricted male members
who could vote and contest elections while women were totally absent from
the political scene. For instance, the Bombay Village Panchayat Act 1920
categorically stipulated that no person could become an elected member
who was a female and that the election was to be held in each village
by the adult male residents at a meeting presided over by the assistant
or deputy collector. Even after independence the Indian Constitution did
not mention or specifically provide reservation for women's' representation
in the parliament or state assemblies. It took nearly 40 years for women
to find political representation in the formal political institutions.
As stated earlier, this was made possible through the 73rd Constitution
Amendment Act, which had the landmark provision of reserving not less
than one-third of the total number of seats in the local bodies for women.
It
provided the much-needed opportunity for women to actively participate
in the decision-making processes of their locality through the political
right that was conferred on them through the Central Act. In this new
era of panchayati raj, there are now more than one million women representatives
elected to the three tiers of panchayats who give more meaning for democratic
representation as they become spokespersons of the local community.
Women's political empowerment in the last nine years through the Constitution
amendments has exploded several myths, like the belief that they are passive
and disinterested in political institutions; only to the well-to-do, upper
strata women will come through reservation; only the kin of powerful politicians
will enter panchayats through political connectivity to keep the seats
for them; and lastly and most importantly, women are only proxy - 'name-sake'
- members and they do not participate in the panchayats. Without discounting
the existence in panchayats of some women who do fit into this patriarchally
oriented framework, one can say that these myths have now been buried.
Today the buzzword is that 'women can do it'.
It is widely recognised that decentralisation of power to the local bodies
and women's proactive participation on a large scale (in the state of
Karnataka women's representation in the local bodies has reached 43 per
cent and the time is not too far when women may capture 50 percent of
seats) in the management of the local affairs in the villages has enhanced
their status and rights. In many states there is greater awareness about
gender equality and women's rights through the work of women's organisations
and especially where human rights initiatives have taken it as a challenge
to protect the interests of women in society.
It has also been proved that wherever women hold positions in local bodies
there is greater efficiency and transparency in the running of public
affairs. Gangamma Jayker, president of a gram panchayat in Malgudi district
in the state of Karnataka, is a product of reservations in the panchayati
raj system. She belongs to the scheduled caste category and had the privilege
of completing her primary schooling. She was very keen on promoting education
and has been running literacy classes for women in the village. On hearing
of the government program for girls' education, she got the details of
the scheme, and followed the procedures to get a school opened in her
village.
The state governments and civil society organisations are today recognising
the outstanding women leaders in the panchayats by instituting yearly
awards.
However, there are serious backlashes too from the male dominated patriarchal
Indian society. Elected women have become the victims of exploitation,
violence, and harassment. There are stories from all over the country
of violations of their rights despite constitutional provisions. The case
of a woman council of a city corporation in the state of Tamil Nadu is
a case in point.
The
people of Villapuram had no permanent water supply facility and were totally
dependent on water that was brought by the corporation tankers. Moreover,
this water was sold to the people for a fee that was levied by the local
henchmen. Attempts to provide water pipes from a water source to Villapuram
were scuttled as the mafia saw the above arrangement more profitable for
them. Leelavathy had campaigned during the elections for the sole mission
of bringing drinking water to her constituency. With her unstinted pressure
on the local bureaucracy, this was almost a reality. But three days after
a trial run, armed man murdered her in broad daylight. Leelavathy came
to be known as a symbol of the people's struggle for water.
Initially, women were hesitant to enter this whole new political arena,
political parties and vested interest groups took advantage of the situation
and proxy rule too prevailed. Thus the power remained in the hands of
the traditionally powerful groups. A new class of 'sarpanch patis' also
emerged where the husband of the woman sarpanch managed the affairs of
the panchayat, while the woman acted only as a rubber stamp. A study in
the state of Karnataka has shown that many women elected to the local
bodies/panchayats are surrogates for husbands and fathers who could not
contest because of reservation. Some were put in place by the wealthy
and powerful, for their malleability - a kind of puppet to serve the vested
interests while appearing to be an elected representative.
A major concern of human rights activists is the prevalence of the two-child
norm as a criterion for contesting elections, especially in the states
of Haryana, Madhya Pradesh, Rajasthan, and Himachal Pradesh, where this
rule has come into force. It should be noted here that early child bearing
is the norm in rural India, which means that the fertility rate is also
high. This restricts many women from coming into the political fray.
Even after being given the space in a democratic process, women belonging
to traditionally marginalised groups were at the receiving end of upper
caste atrocities. After more than a year of the elections to the panchayats
in Madhya Pradesh, there were reports from four districts -- Raigarh,
Chhatarpur, Raisen, and east Nimar -- of a lady sarpanch being stripped
naked, another lady sarpanch being gang raped, an 'upa-sarpanch' (deputy
president) being tortured and a dalit panchayat member being beaten up.
*** *** ***
The decentralisation process that has gathered momentum in India in the
last one decade or so has deep implications for human rights situation
in India. This is particularly so for the villages in rural India. The
democratic process has brought people closer in the villages, and they
could now take part in the local election every five years and assert
their right to vote. The elections in India are a big education process.
The rights of the excluded people had been violated over the years owing
to lack of democratic system of governance at the community level where
they could participate effectively. The system of local self-government
as manifested in the panchayati raj institutions has taken a leap forward
in guaranteeing a life of dignity and respect to the citizen at the local
village level. Ideals of social justice based on gender equality and liberty
are best pursued at the local level.
In a formal sense, all the states have confirmed to the constitutional
requirement of ensuring the participation in the PRIs to the hitherto
excluded groups (women, dalits, and adivasis) through the system of reservation.
The problems of the poor have been sought to be addressed by transferring
some of the poverty alleviation and development programmes to the panchayats
due to the constitutional obligation. By and large women have found representation
in the panchayats through the one-third reservations of seats. The dalits
and adivasis have been represented to the extent of their share in the
population.
Evidently, formal representation need not necessarily be an indication
of participation. Since the new phase of decentralisation, there is evidence
that some of the worst forms of exclusion that plagued the rural society
in India are no longer practised in a number of states. Elected members
sit together and discuss issues in formal and informal meetings. A symbolic
participation of all in the village, including the dalits and adivasis
and women does take place at least as a constitutional requirement. This
is due to the slow but sure changes in the larger political landscape
in India.
Social transformation through a democratic process is not peaceful in
India. Therefore on the other side after India has taken bold steps to
strengthen decentralisation and local governance system the human rights
violations at all levels have gone up. The main reason is that all those
who were enjoying the powers and privileges so far are trying to subvert
the constitutional mandate overtly or covertly.
This has to be seen from another angle too. In a traditional society any
change that has structural implications involves conflict. The conflict
of interests is so powerful that it leads to violence, bloodshed and loss
of life. Ever since India got independence this has been happening but
it did not take on a prolonged bloody character because of the developing
democratic system in the country.
Since 1993, in the new generation of panchayats, at least two rounds of
elections have been held except in a couple of states. It is ironical
that elections in India become an occasion for serious human rights violations.
During the election period, the rich try lo dominate the poor by buying
their votes or keeping the poor as 'vote banks'. In many cases the upper
castes stop the lower castes from exercising their democratic rights if
they come to know that the poor and disadvantaged will exercise their
votes independently. In the process violent incidents take place and many
lose their lives. Although it happens even during elections to the states
and parliament the violence is more in the local elections as the polling
percentage is higher at this level.
Violence has increased at the village levels as political power is the
most important instrument that exists at the local level and everyone
wants to wield it. Therefore, tensions that have existed earlier mount
when those who aspire for power come up against those who resist giving
it up. Muscle, money, and caste power are worse at the local level during
elections. An analysis of this violence shows that whenever political
consciousness is low and development is relatively backward the people
in those areas are more prone to violence.
It may be stated here that there are no consistent and systematic attempts
with a political will to combat casteism. The implementation of the legal
provisions has been minimal and utterly insufficient and often the violators
go unpunished. The members of the Indian parliament belonging to the scheduled
castes publicly acknowledged the government of India's unwillingness to
enforce legal sanctions against casteism and the continued abuse of lower
caste people. They said, "It is a shameful tragedy and irony of fate
for the hapless Indians belonging to the scheduled castes and scheduled
tribes that inhuman and barbaric treatment is meted out to them by their
own countrymen. Sometimes their women are paraded naked in streets and
their children butchered like animals, their hearths and homes are burnt
at whim destroying their meagre source of livelihood. The state and its
machinery play at best, a helpless mute witness or indifferent analyst
or still worse active collaborator."
State scheduled caste/scheduled tribes commissions have been set up following
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
of 1989, but the victims are afraid to report caste atrocities for fear
of retribution, despite the protection and monetary compensation that
the commissions promise.
Panchayats have, all the same, opened possibilities for bringing to surface
most of the things previously swept under the carpet. No more it is hidden
or secret. Although gram sabha and gram panchayat are hotbeds of manipulative
politics, they provide a democratic forum to grapple with social and political
issues in the open. Such a forum is now available, for the first time,
with the constitutional backing.
Here the role of political parties is crucial. The earlier concept of
consensus (in effect, consent to whatever the powerful was saying or doing)
is giving way to people aligning on party lines questioning every action
that is less than transparent. If one political party becomes protector
of the oppressed for whatever reason, another party becomes the guardian
of the oppressor. In the local situation, state politics or national level
ideology is of little consequence. As of now, open participation of political
parties in the panchayat elections is the best way to challenge the age-old
autocracy of caste or family.
The mass media, communication technology and spatial mobility have broken
the isolation of villages. Incidents even in remote village panchayats
are thrown up promptly at the state and national level. The new panchayat
system, with all its current weaknesses, has helped to weave the village
into the broader social fabric.
The silver lining on the otherwise dark horizon is positive intervention
of judiciary upholding the human rights of the downtrodden at the local
level. Although. Indian judiciary is notoriously slow, the public interest
litigation has been a successful tool to give meaning and content to the
local bodies legislations. There was an instance where a woman belonging
to a dalit community who was elected as the head of the panchayat had
to face retribution by the defeated candidates belonging to the upper
caste. The first information report (FIR) lodged with the police station
by the dalit woman president stated that the miscreants looted her house
and abused her using derogatory language. A case was filed in the court.
The high court refused to quash the FIR and observed that "the caste
system in India, based on the feudal occupational division of labour in
the past, is today totally outmoded and is a great hindrance to the nation's
progress... no doubt, the word 'chamar' is a word denoting a certain caste,
but the said word is also used in a derogatory sense for persons who are
regarded as inferior by the so-called upper caste, and, therefore, it
should not be used by the members of the so-called upper castes or OBCs
(other backward castes) as it hurts the feelings of the dalits.
Several elections more to the local bodies are a necessary condition to
create a culture of genuine democracy and political participation. There
is no doubt that the local governments based on vibrant democracy at the
local government level with the support of civil society organisation
will protect the human rights of the people at all levels. But in a traditional
society like India this will take time through the democratic process.