Saturday, August 4, 2012

LESSONS FROM OUR DEVDASI REHABILITATION PROJECT


(prepared abridged version for book on 25-05-2012)
LESSONS FROM OUR DEVDASI REHABILITATION PROJECT
My narrative  of the work with Devdasis of Sangli and Kolhapur  is titled as --
The Integrated Rural Development Programme for Women in Developing countries:
What more can be done? 
(Published as a chapter in the book "Women, Development & survival in the third world" Edited by Halesh Afshar Longman Publication U.K.(1989)

Women are always the worst sufferers from any social evil or economic constraints. In the Third World countries which are with widening income inequalities, passing through difficult phases, the number of exploited and exploitable women is increasing. The Integrated Rural Development Programme (IRDP) is one of the very few programmes available for any poverty ridden groups of women. But it puts great emphasis on self-employment without recognizing and providing for all the aspects of it. (The latest efforts in providing micro-finance for  self-help groups also suffer from same draw_back.)
The present success story points out the roles of motivation of beneficiary, leadership, managerial efficiency and personal involvement in the greater use of the IRDP for women beneficiaries. It also suggests that such programmes have a better chance of success if women officers occupy more significant posts, in larger numbers in administration rather than being confined merely to a traditionally "soft" department such as social welfare.
INTRODUCTION:
The Integrated Rural Development Programme, popularly known as IRDP, is being tried as an important strategy by many developing countries in their attempts to alleviate poverty and reduce inequalities of income.
This story, presented as a case study relates to 1984-85  when the benefits of the IRDP were extended to a group of socially and economically exploited women called devdasis. The case study is important because it poses many questions regarding the underlying assumptions of the IRDP, especially in the context of women beneficiaries. It suggests ways in which IRDP can be modified in order to achieve its objectives better. It illustrates the developmental role of public sector and possible problems faced due to its bureaucratic structure. It shows how leadership, organizational efficiency and motivation of beneficiaries act as key prerequisites for the success of any potential development programme. Lastly, it also provides some guidelines for voluntary agencies.
I will proceed by giving a short background of devdasis, the women who are the focus of this case, then an account of the structure of the bureaucratic machine in India and its role in implementing the IRDP. This will be followed by an account of how our team used IRDP for economic rehabilitation of devdasis, the barriers encountered and the story of the final success. While so doing, I will highlight some important issues regarding programme implementation and gender considerations.

THE CUSTOMS OF DEVDASIS:
Indian society is characterized by exploitation that gets perpetuated because of poverty, illiteracy and deep-set traditions whose sanctity has not been effectively questioned. One such tradition is the custom of devdasis. These are women who, in early childhood, were offered or sacrified to God by the parents in order to ensure family well-being against the perceived anger of God, or, more importantly, to ask for a son.
Although there is no basis for this system in the Hindu religious scriptures and though the custom has been banned by law, every year nearly 10,000 girls are thus offered to God. The offering takes place ceremonially on all full moon days at the Renuka temple at Soundatti in Karnataka state, but only on Pausha Pournima (the day of the full moon in February) at a few other Renuka temples. In some cases the girls are offered as family tradition. The daughters of devdasis are also normally offered. Tradition and superstition ban them from marrying and settling down to a normal life, and finally they often succumb to prostitution and begging.
To my mind the devdasis qualify to be called the most deprived class of the society. They lack money and education, they are often from scheduled caste, they have the disadvantage of their sex   and coming from villages they also miss the exposure to modern conveniences which are known, if not available, to the urban poor. They cannot acquire the social status of a married woman and a secure family life. To top all this is their own mental barrier of superstition which stops them from aspiring for a better life.
In the past twenty years some social and voluntary organisations have undertaken programs for the upliftment of devdasis. Their main emphasis has been on social and health aspects. These efforts include regular medical guidance to devdasis, organising them, settling them in married life and removing superstition. Ours was perhaps the first attempt of Economic rehabilitation. We felt that the poor families succumb to this tradition as it partly solves the problem of their livelihood.
Devdasis live in groups in villages, with older ones acting as chaperones, although nowadays it is not uncommon for them to stay with their parents. They have no rights in the family, least of all the right to property, but the parents have a right to their income when parents are providing them with lodging, boarding and shelter. They have no right to marry but they can and do live as the kept women of wealthy clients. Most of the offered girls of age between four and early twenties, eventually land up in the flesh market of big cities, but some stay back in the villages. Some return at old age. As part of tradition, at least on Tuesdays and Fridays, they have to go begging for alms in the name of the goddess  and on several occasions they have to visit the temple of Renuka, spending day and night singing and dancing before the deity. For survival they mostly resort to prostitution and unskilled jobs. They also have to provide for their children.
It is estimated that every year 8,000-10,000 girls or women are offered. The system is prevalent in the states of Karnataka, Tamilnadu, Andhra Pradesh, Goa and parts of Maharashtra. The girls are offered by their parents, and rites are performed by temple priests, in spite of many laws declaring both the acts as crimes. Often, the parents are extremely poor, uneducated, and superstitious. Most are from schedule classes, though some offerings are also made from other communities. There are many variations in the reasons leading to the offerings, the rites to be performed, the subsequent living arrangements of the women, their means of survival and so on. But the common factor is the cause of perpetuation, which is undoubtedly a combination of poverty, superstition and lack of education.

THE IRDP :
The Integrated Rural Development Programme introduced in India in 1981 is intended to assist families below poverty line (The word BPL was then coined). A specially conducted survey of families living in poverty, conducted in 1980, showed that nearly 350 million (38 percent) people lived as BPL, out of whom 300 million were in rural areas. They consisted largely of landless labour, small and marginal farmers and rural artisans who have, to a large extent, lost their traditional skills and earning power due to lack of skill-upgradation and unfavourable competition from industrial production. Since most of the women were traditionally engaged as partners with the male artisans, and suffer worse from this poverty-accentuating phenomenon, the IRDP could play a special role for them.
The program has three areas of emphasis. One is to give bank finance to BPL beneficiaries for the creation or purchase of assets such as irrigation wells, cows or machinery.  25 per cent of the cost of asset, comes from the government as a subsidy, which banks treat as equity to give an additional 75 per cent as a loan. The loan is to be returned in easy instalments. The second part is to run short-term vocational courses under a scheme called TRYSEM (Training of Rural Youth in Self-employment). The third is to create infrastructure for the use of a group of beneficiaries. Normally a budget of 15 million rupees is available per district per year for subsidy disbursement, TRYSEM expenses and infrastructure creation. The Zilla Parishad of the district is the unit of implementation of the program and CEO who is an officer of the IAS (Indian Administrative Service) is in charge of this program.


THE JAT EXPERIENCE :
Attempts to rehabilitate devdasis in the present case were first started in 1984 when, as Collector of Sangli district, I attempted to prevent the ritual of offering devdasi girls at the Renuka Temple of a taluka place called Jat. These attempts met with opposition from village leaders, priests, parents and older devdasis, all of whom had come to the village to perform several tasks during the ritual, and who have a vested interested in the perpetuation of the system (older devdasis are supported financially by the younger devdasis when they are in the group). The resistance died down quickly, once they realised that I was prepared to invoke the Devdasi Abolition Act of 1934 to arrest them if necessary. They had never faced such a threat before. Secondly, there were many local level politicians in the group who did not want to be seen before a woman collector as the perpetrator of an evil system that undermined the dignity of women. Jat is a small place; similar action later created a violent situation at Soundatti, and a show of force or threats of arrest have not worked there.
At that stage, I  had a meeting with about fifty devdasis whom I had arranged to call from other villages. We discussed issues of human dignity and self-respect, social rights and their deprivation, the questions of religion and faith and superstition - all abstract principles, until one of them asked “What alternatives will society offer to us?” They were roused at least to argue and think of alternatives. I grabbed the opportunity, and registered them as trainees under TRYSEM, by making an exception to the rule that they should have passed at least seventh standard. They were all illiterate. When training was offered, they came forward to meet our challenge. They were registered for a three-month poultry training course in a poultry unit run by ZP sangli at Jat.
This case study deals with the second and subsequent groups of trainees who were trained in making of knitwear and in other occupations. In order to understand why subsequent training batches were successful, something must be said about the first training batch. They could not utilise their training and start their own poultry units. In that sense the attempt was a failure, But it was a great success as it helped to build up hope among Devdasis that they could learn new skills and find alternative livelihood rather than depend on begging or prostitution. For me, the first training batch was a success as it allowed me to offer them instant answer to their unexpected question  – “what is our alternative?”
Although the IRDP is intended precisely for people like the devdasis, in many ways it was an unusual attempt and was thwarted, with many queries, lack of precedents, procedural bottlenecks and so on, which even a team of well-meaning officials cannot cope with unless they are willing to take some risks. A few also feared that I was inviting the wrath of God, to which they must not be a party. Some senior officials questioned why so much effort should be wasted on devdasis. However, the immediate success was that on the last day of poultry training, nearly 100 devdasis gathered with a request to be enrolled for training. The stamp of failure was not yet put on the first batch. So myself and the CEO of ZP (Mr Ramani) decided to organise another group of twenty six devdasis for training in woolen knitwear.
THE CHALLENGE:
During their training I had insisted on one condition: that they would not go begging for alms, because this would be the biggest affront to their self respect. Did they continue with prostitution during the night? I would not ask. Should I have tried to stop it? I have asked myself this question only once and have, since then, fully believed in my answer: “in a society which denies them fulfilment of their financial, physical and social needs, I, as a privileged member of that society, have no right to put that condition.” My boundaries could be stretched only up to offering them alternatives from which they must choose themselves. With my government position as a collector, I could offer them an alternative way of earning and I could not even claim that it was better in monetary terms. But the training might break down their social barriers and superstitions, and bring an awareness of their potential to learn skills and do something worthwhile. That would be the reward, even if they continued in prostitution.
Our second training programme (March 1985) was started in machine knitwear. We faced typical problems like “how to get vocational trainers who were prepared to live in a village for six months? Whether or not these were good teachers? This question arose because under the TRYSEM program it is neither possible, nor I think advisable, to have a cadre of trainers. Giving high and regular remuneration to the trainers, is essential. Such training  has not been tried much. The trainer's own motivation is also extremely necessary. Moreover, could they train a totally illiterate group? Could the trainees be asked to spend additional time on literacy lessons? Is money available under TRYSEM to cover the salary of a special literacy teacher? (No, it is not.) The training in operating a knitting machine had obvious, recognisable economic prospects, but what was the use of literacy classes? These questions was asked both by the trainees and the TRYSEM authorities. These questions will be faced in all TRYSEM or similar programs, and their success in developing countries will depend on whether their bureaucratic structures can provide a systematic answer to them. This is possible only if there is sufficient delegation of decision making at the implementation level
A further question was one regarding the attitude of the banks. In India, banks are nationalised and have directives to make some definite lending under the IRDP, yet  they will prefer to process loan cases of small or marginal farmers who have been engaged in agriculture in the past. Loans can be given for cattle-keeping or a shop or a photographic unit. All these loans are given to those who are already in that occupation, and the purpose of loan is to supplement them economically. But where a new skill is to be acquired afresh, banks are reluctant to give loans to trainees who have no previous experience. How can banks give finance for capital investment without asking what was the guarantee that the devdasis would complete training and that they would be adequately trained and thereafter could market their goods? What guarantee can be given by the devdasis, or by any voluntary organisation prepared to run their training programme, or by a collector (who can be transferred the next day)? Such problems have arisen and have been solved in those very few cases in which the crucial factor was the personal initiative of the organiser. They are not solved routinely or by system-design and certainly not without much persuasion. The answers are not available within the given pattern of the IRDP. So long as that remains the case, the benefits of the IRDP cannot be widespread.
Other vocational courses are also run under TRYSEM. They may be tailoring, carpet weaving, pottery or shoe making; I am talking of all those vocations where the final product must be approved and purchased by the consumer. These courses are run not only under TRYSEM but also by many other institutions for vocational training. What happens to the trainees later? Most of the schemes  do not have a system to follow up cases. In India we do not have statistics about the future pursuits of the trainees.
This brings me to a much more important question. All our  vocational training courses assume that the trainees inherently possess four skills; first, of marketing their goods, second, of inventory control; third, of correctly pricing the product; and fourth, of managing working capital. It is as though all they need to be taught is some vocational skill. The courses are, therefore, typically devoid of any component for entrepreneurial or managerial skill development.
In our training program it was sharply becoming clear that within the funding pattern of TRYSEM it was not possible to appoint extra staff who would keep the accounts or suggest designing and market strategies or who would liaise with banks. The important point to make here is that rural development departments are normally not orientated towards commercial management, and hence the IRDP in its present form in India will not achieve much towards self employment unless the aspects of business management and project management are emphasised, both among the implementers and the beneficiaries. Lastly, there are always problems related to implementation. When large quantities of training material are needed, as in this vocational course, the funding is not adequate. The cost of repair and maintenance of machines is not provided. If the training needs to be extended, extra money is not provided. In spite of all this, the IRDP is the only existing programme which contains some hope for a group like the devdasis.
In short, the trainee group at Jat faced the problem of banks not giving loans initially, then the trainer moving away leaving behind a semi trained mechanic, the raw material was always getting quickly exhausted and not replenished, six months' training duration proved inadequate and so on.
THE INTEGRATED APPROACH:
While these problems were being faced one-by-one during the training program and we would frantically try to find solutions as quickly as possible, I was transferred to the post of managing director of the Western Maharashtra Development Corporation (WMDC), which is a public sector undertaking of the government of Maharashtra, under the Department of Industries and based in Pune. Its mandate is to promote balanced industrial growth, and especially facilitate small scale industries. Luckily, Sangli district was included in its geographical jurisdiction. I recognized that I could use the industrial and promotional activities of the WMDC to combine with the devdasi training programme at Jat.
It was only a lucky coincidence that I was posted to WMDC. What I was planning and advocating was new; namely, to combine the organisational skills and capacity of financial investment of the WMDC with a rural, women- orientated training programme. Many people doubted the wisdom of doing so, but luckily I won the support of the Chairman of the board Shri Ulhas Pawar, a politician with good heart, and my colleague officers at WMDC, who were willing to share this extra burden.
Many outside WMDC felt and advocated that this activity was best left to someone in the Rural Development or Social Welfare Department; in their view it could not be categorised as industrial development. The word devdasi kept on playing on their minds. The govt departments have a sharp dividing line between the mandates of different departments – they are governed by something called “Rules of business” which, in my opinion, completely destroys the spirit of coordination and team work.  My argument was that those departments do not have managerial and entrepreneurial skills, which is the main factor missing in the training and management of rural development progams. I pointed out that as soon as the training was over these women would need working capital, marketing arrangements and accounting skills. They would thus need to become entrepreneurs and on their own they could not do so successfully. Such debates are inevitable in administration and they took large chunks of my time during the next three years.
I was most surprised and chagrined by the attitude of many senior colleagues, who would ridicule my efforts and say that no person working in the (prestigious!) Department of Industries needed to concern oneself with these downtrodden women, as the department was meant for high--flying industrialists, and that the devdasis would be better left to the Social Welfare Department. I was told that I was attaching too much personal emotions to the whole issue, which is anathema to the spirit of bureaucracy. Some even said that I was not able to come out of my complex of being a woman and so on. On the other hand, many officers supported my efforts precisely because I was promoting the cause of needy women and they shared my concern for them. Perhaps I did get emotionally attached to the project, which, in the hind-sight, I found necessary for successful implementation of any scheme. This case has taught me that a detached efficiency is not always the best tool for achieving development, as is normally believed among bureaucrats – being emotionally attached is a plus point, with a small rider that I am discussing later.
In WMDC, we started by giving the trainees of Jat an order for knitwear with some  advance financing (about Rs. 50,000). The results were very good. The trainer mechanic, who, by this time, was also frustrated and prepared to quit, decided to stay on. Attendance improved. The trainees started to discuss marketable colour combinations. The secretary of the RD dept. allowed an extension of the training period for a further six months, a discretion available but rarely used. WMDC used the knitwear for a market survey. Costing, accounting and even procurement of orders and transportation were all arranged by the WMDC. It was, in a true sense, the nurturing of an infant industry. When the first batch of knitwear received a good response, we thought of larger participation.
During this period WMDC also used the support  of a voluntary agency named Bhagini Nivedita Pratishthan Sangli for marketing. Earlier, during my days as collector Sangli, they had undertaken to provide hostel facility for the childrn of trainee devdasis.  But their participation in marketing could not continue for long because they had a staff shortage. Also, their main field was nutrition and the health care of the school children. Since then I have been acutely aware of two factors that undermine the working and potential of voluntary agencies. First, is their lack of voluntary workers, sometimes resulting from paucity of funds. Second is their lack of managerial ability, efficiency and technical knowledge despite their well--meaning and hard--working volunteers. These qualities are as necessary as sincerity. The combination of sincerity with knowledge and efficiency is extremely rare. But is it less rare or less needed in government jobs?
Next, WMDC prepared a scheme to run a training-cum-production center for the devdasi trainees. The idea was that this scheme would run for three years, during which WMDC would invest money and provide all support, like accounting, inventory management, marketing and so on while also imparting training to them in these areas. These services were identified as crucial. The scheme would need an investment of nearly Rs. 500,000. We were faced with two sets of questions -- some bureaucratic (including my own bureaucratic rigidities) and some having much wider implications. The bureaucratic questions were the most trivial and the most time-consuming. For example, why are the devdasis not being trained instead, in vegetable selling? Or, did the progam come within the purview of the Department of Industries, or of Social Welfare or of Rural Development, and if it was not of the former, then why should I pursue it. More frequently asked question was “when devdasis are in the domain of Social Welfare then why should those "belonging to SW department", accept my methodology or work given that I was not from "their department". The file when referred to finance or planning department also faced similar querries.
Thus, WMDC had to enter into lengthy correspondence with several departments in govt. of Maharashtra. Finally we were able to ignore them all when a Joint secretary of the Department of Women and Child Welfare in the Government of India, found this idea important and made the funds available. What I want to point out is that this is not a unique situation. Such conflicts will arise when bureaucracy does not show dynamism. Traditionally, bureaucracy is characterised by accountability, which means that one must be seen to be acting strictly within the given job description and within the set rules of financial control. This ignores two vitally important aspects in any development program. First, every development programme will require the coordination of functions of many departments, out of which one that shows maximum promise of success will have to be accepted as the 'leader' for any project. This is no reason for other departments to withdraw their support. In the present age of specialisation, all government sectors must draw from the expertise of one- another rather than try to build up their own cadres in every function. What actually happens is either a race for power-grabbing  or complete abandoning of any project. The coordinated management, in which IAS officers are supposed to be experts is lacking. The second aspect concerns financial propriety. Financial rules are necessary in order to prevent misuse of the vast funds which a government officer handles. However, since the present rules do not recognise the element of risk in any development project, they insist that any project selected for implementation must be, in effect, 100 per cent risk free. This is never possible yet, because of this approach, there is no attempt or methodology to quantify a reasonable risk, or assess possible areas of failure. Thus there can be neither any risk monitoring nor a scope for on-line changes during the implementation of the govt. program.
While tackling these issues, WMDC, in December, 1986 had started another training group in knitting at Gadhinglaj in Kolhapur District for forty trainees. Gadhinglaj taluka has an estimated devdasis population of 5,000 whereas their population in Jat is only about 500. This training was also funded by DRDA of Kolhapur District and supplemented by the local Social Welfare Department. Later (between December, 1986 to December, 1988) two training groups for silk reeling and one more for making knitwear were also started. The total number of beneficiaries had thus risen to 160 by December, 1988. Thus despite all initial bottlenecks, WMDC has systematized a way of using the IRDP more effectively. The trend to involve more women through training would continue in future years. The number to be added per year had been deliberately kept low for reasons which I will shortly  discuss.
The policy issues have to be settled more carefully and the role of leadership becomes important. The issues must be decided on clear philosophical principles if they are to provide continuous guidance. The first principle in selecting trainees was that devdasis must feel themselves to be a part of the mainstream of society. So we included 20 per-cent non-devdasis in every batch and we also tried to select the devdasis from different educational levels. A few devdasis do attend schools up to different standards. The mix was considered necessary to have a  demonstration effect on those lagging behind, and has worked out well. Literacy and numeracy had to be a part of their training, and this was found very difficult to impart. We also insisted that each trainee group formed itself into a co-operative society in which WMDC would be shareholder but not a sharer of profits accruing to the society. The members would earn wages from the co-operative society according to their output. When the co-operative society published its yearly accounts and declared profits, they would share the profits too. Some part of the profit was to be kept aside by each co-operative society in an educational fund, to be used for future training groups if needed. WMDC would provide the clerical and managerial support to every batch and thus to every cooperative society initially for three years. The members were to train themselves to run the affairs of the society. They had to spend some time in acquiring managerial skills, thus forgoing some wage-earning. This was, of course, too much to demand from an uneducated, unprivileged, downtrodden group of women. Even well-educated people are not necessarily good managers. Yet, their real emancipation will come only when they are no longer pliable and manageable by others, easily surrendering before all forms of exploitation and victimisation. The devdasis also understand this. Each woman's learning speed may be slow and different from that of others, but there is no escape from this learning process.
This brings me to the best part of the project. The desire to learn comes not from the lure of increased earnings: in fact, the devdasis earned more wages when their time was not spent on learning these different skills. The argument that learning will prevent their exploitation is understood by them, but only in theory. It was far inadequate to motivate them in learning managerial skills. In their opinion, if their management could continue to be with WMDC, that would, in fact, protect them from exploitation. They would far prefer if management were to remain with WMDC forever and if they did not have to train themselves in management.
I did not share their view. First, no dependence can be free from exploitation, and second, the burden of this trust would be too heavy on WMDC. But there is a third and more important reason, which I will discuss shortly. Their willingness to learn came through self-confidence that we systematically tried to build. For this purpose we arranged visits by university teachers and students and promoted their mixing with the trainees. We had personality development camps ranging from three to seven days, conducted by visiting voluntary organisations. Third effort was to call them to Pune in groups of four or so, for a week's training, during which they were trained by WMDC staff in basic office management skills such as filing, stapling, punching, telling the time, making phone calls, using xerox machines and calculators and such innumerable primary level, trivial skills which at our level we never notice and at their level they had never experienced. Gradually, their interest grew as we took them to secondary and higher levels of learning such as purchasing wool, managing their stalls during exhibitions, making out receipts, procuring small orders, operating their bank accounts, measuring the work output, making wage payments, writing up cash books, visiting other offices, explaining their problems to those officers, writing out applications and so on. With different speed this has proceeded. Some learned to ride bicycles, and wanted to learn jeep and car driving. Some liked photography, some have learned computer data-operating skills, and at the end of the day they feed the data of the total work done by each individual. In turns they undertake inspection and quality control. Some have taken an examination in co-operative accounting. Some are appointed as instructors for subsequent trainee groups, including training in reeling for some farmer group in faraway villages of Aurangabad and Solapur. We encouraged them to demand and receive full trainer's salary on such occasions. A few still have to show any worthwhile progress, but this was to be expected. As for work quality, the silk reeled by them is sold at the silk exchange in Bangalore (the main silk market in India) for the best prices, while the sale of knitted garments has exceeded $40,000 per year (600,000 rupees). Their average earning is 400 rupees per month (The Minimum Wage Act prescribes 300 rupees per month as the lower limit).
On the whole the project was very successful. One  justification for so much involvement by WMDC was that Devdasis was a group whose members could not be expected to get any benefit from various government schemes, simply because government departments do not know about them. Unfortunately devdasis are not the only group with such a fate there are several others like vaghya-murali, nandibailwale, dombari, etc. They cannot knock at the doors of offices to take advantage of various schemes. In that sense WMDC has acted in the role of a voluntary agency, providing supporting services and also filling short-term financial gaps. WMDC approached many offices for them, trying to get whatever benefits were available under different schemes. We thus secured a grant of Rs 5,00,000 for building a working women's hostel for them from the Women and Child Welfare Department. The National Chemicals and Fertiliser Corporation agreed to provide funds for a work shed and nursery, and for expert staff for our proposed training activity in forest nursery. The CEO Sangli built twenty houses for them at Jat under the program of houses for the houseless. IRDP agencies in both Sangli and Kolhapur districts gave money for training and subsidies for equipment. Now the Central Silk Board is in a position to support some more programmes in sericulture activities because the World Bank has asked them to undertake women's programmes. In the space of three years WMDC has been able to integrate the beneficiary programs of many departments and get not only the money but also their expert staff to use for the benefit of trainee  devdasis. However, such help is slow to come. Any other agency which tries to provide a similar co-ordinating service must have its own financial standing and expertise in accounting, marketing dealings and knowledge of various departments which run different beneficiary programmes. This is a guideline for the voluntary agencies.
The other side of such support, however, must also be considered. The devdasis have often asked why WMDC must withdraw its support at a later date. The answer, which is obvious to me, is that the role of WMDC must be limited to that of initiating at the first stage, and only as a stand-by in the later years. Such work needs staff members who are both dedicated and efficient. No organization has a large number of them. Hence, there has to be a scheme by which the work of these staff members is handed over to a different group, so that the staff is kept free for their original work or for subsequent trainee batches. I also felt strongly that those who take over, must come from within the beneficiaries themselves. WMDC achieved what it did because of the high level of efficiency and dedication of the staff and their sense of immense satisfaction that, as a team, they were contributing to a vital social cause. Their  skills in entrepreneurial management were of crucial importance. Very often I also received useful suggestions from other staff members who were not closely linked with this work .
Those who were involved in training, and especially those who were involved in personality development and literacy training, were puzzled as to why I insisted that every beneficiary should be asked to learn everything. Would it not give much quicker results if only a core group was identified as potential managers and was given much more concentrated attention? That can be one way to proceed. However, I would accept a much slower speed if it meant better understanding of the running of the organization by a larger number, than a system in which a few managed and others remained as ignorant as before and therefore as prone to exploitation as before. That is why we have arranged the training in such a way as to include each beneficiary in the learning process. In my opinion the most important point of this success story is the lesson that there is no substitute to learning and no short cuts to the process of learning.
Digressing slightly, I have often seen voluntary agencies running training programmes. They either restrict their role to training only, or if they have to get involved with management as well, then they cannot extend their help to more groups because all their manpower is used up just in the management of one group. I do not want to undermine the work of those voluntary agencies who have remained confined to the management of only one group. But it reduces the scope of help by that voluntary organization. They have to learn how to train the beneficiary group for managerial training too and then withdraw their role in the management. I hope that the example narrated here will help them to modify their strategy.
Another small digression is about the role of women officers. It would be wrong to make a generalization that only women officers can be aware or sensitive to problems of women trapped in a situation like those of the devdasis. In my opinion any officer sensitive to such social problems would have acted similarly.
I, however, must question the normal belief that women officers are suitable only for working in the departments of Social Welfare or Health or Child Care or that they alone are useful in those departments to solve the problems of women. This case shows that the solution to women's problems does not lie necessarily in the schemes of the Social Welfare or Rural Development Department. It is therefore important that women officers be posted in all departments without bias.
There was also the question of giving similar organizational support to many other groups of educated unemployed , who had been given skill training under TRYSEM, but had thereafter remained stranded because no attempt was made to develop their entrepreneurial skills. As I mentioned earlier, that component is not built into the training schedule of TRYSEM. Many such groups approached us. Giving support to these groups would bring us faster results because they have an educational background. We would have more success stories to our credit. However, to provide comprehensive support to TRYSEM beneficiaries is not the assigned role of the WMDC, it is not the assigned role of anyone. We would have been allowed to do it very sparingly and that permission was given only for the devdasi group and with lot of grudge. To my mind, this lack of recognition of the need for comprehensive support for trainee groups reduces the potential of programmes like TRYSEM or the IRDP. Theoretically, many public sector corporations can fill this gap. Indeed, some have tried it in the past. However, they have been trapped in the roles of permanent managers because they did not have the express policy of withdrawing after an initial period of support. As for WMDC, this type of role can be taken up only selectively. WMDC does not have large enough staff to undertake similar activity for many groups; at least not unless such role is  assigned to it. The general consensus in WMDC was that we  need not worry so much about collecting success stories and should restrict our small capacity to help this most neglected section of the society. Other groups are much higher up in the social and economic hierarchy and have a better chance of survival without the WMDC. However, in the system of the IRDP and TRYSEM, something must be included for them. That is another main point in this case study.
In conclusion, I must add that to my mind even the IRDP is not the best programme for imparting the necessary managerial and entrepreneurial skills. This training must be built into the Indian educational curriculum and should be started much earlier rather than having the students spend eight to fifteen years before they are taught these skills. Our educational system must recognize the fact that 50 per cent of children drop out before they have spent four years in school. At that stage they and their parents realize that their wage-earning capacity has not been improved by the four years of schooling. For society as a whole, the returns on investment in universal education can be infinitely high when fully realized, but to an individual the returns come too slowly and the situation can be frustrating. Often the time investment that ranges from a minimum of eleven years to a maximum of twenty years, is beyond the individual's reach. This is true of all developing countries. On the other hand, we have supposedly quick-gain programmes like TRYSEM in which vocational expertise is supposed to be achieved in three to six months with a further assumption that any one who has the vocational expertise can automatically market it. Both assumptions are wrong. All our educational experts must do some heart-searching on the validity of these assumptions, on the one hand, and on redundancy and time wastage in our educational system, on the other. Only then shall we be able to tap the full potential of poverty alleviation programmes like the IRDP.
NOTES:
1. For more information on the IRDP, the reader is referred to the Sixth Five Year Plan of India.
2, 3. The administrative hierarchy in India is as follows. The central government functions from Delhi. The federation of India is divided into several state governments. The smallest unit is a village; about 500 villages make a taluka and about fifteen talukas make a district, which is the most important administrative unit. Each state has several districts. The bureaucracy is responsible for carrying out all development programs within the perspective outlined by the political leadership, although itself it is required to remain apolitical . Most of the key functions of bureaucracy are performed by the IAS officers. In general , the IAS officers are known for high efficiency, sincerity and their apolitical functioning. Unlike in the colonial days, now the bureaucratic machinery of most developing countries is given the task of carrying out speedy development. In India, the IAS officers at district level work, either as district development officers (or CEO) and are in charge of all developmental activities, including the IRDP, or, they work as collectors, who look after revenue collection, maintenance of law and order through police, district planning, and overall co-ordination of government functioning in that district. More senior IAS officers work as heads of public-sector corporations and secretaries of various departments. The author is herself an IAS officer and was actively involved in implementation of the case study presented here.
4. In India, formal vocational education starts after schooling and is conducted mainly by the Industrial Training Institutes (ITIs) and to a small extent by the Districts Industries Centre (DIC).
5. Some readers may even question the whole ideology of giving low-level skills to the TRYSEM beneficiaries and requiring that they turn into small-scale entrepreneurs. Knowing the tough competition which the small-scale business faces from the large concerns, this may be a valid question. However the purpose of this case study is not to go into those long-term questions but to suggest how best the IRDP can be utilized when it is the only available programme for the groups like the devdasis.
6. I have learnt from subsequent collectors of Sangli that the practice of offering young girls as devdasis at the temple in Jat has stopped. At Soundatti also, the government has partly succeeded, as no offering now takes place openly.
Not part of the book: The project got active support from the entire staff of WMDC, collectorates of  Sangli and Kolhapur, Zilla Parishad Sangli, and Panchayat and Tahsil staff at Jat apart from some high-ranking indidviduals such as Shri Ulhas pawar (chairman,WMDC), Shri Sharad Kale (Secretary Industries Maharashtra), Smt. Sujaya, (JS in Social Welfare in GoI), V. Ramani, (CEO Sangli), Smt Shashi Mishra (Secretary Socal Welfare Maharashtra), Bhagin Nivedita Pratishthan Sangli and Bank officers of MSFC in Sangli.

Thursday, March 15, 2012

Need for Research support in CAT – An Introspection.

Need for Research support in CAT – An Introspection.

By Smt. Leena Mehendale, Hon'ble Member (A), CAT, Bangalore Bench

As any other prestigious institution of this country, the CAT has come through various ups and downs, and vicissitudes of its fortunes in the 25 years of its history. The CAT has been set up under the Administrative Tribunals Act, 1985 in accordance with Article 323-A of the Constitution of India. The objective of the Act is to provide for adjudication of disputes and complaints with respect to recruitment and service conditions of persons appointed to different cadres and posts in various departments of the Union government. Similarly under Sec 4(2), the Central Govt. may, on receiving a request from State Govt. establish the State Administrative Tribunal which will cater to the needs of employees within employment of the States. The jurisdiction of CAT extends over the territory of India and all offices under the control of Govt. of India. This jurisdiction can be and has been extended over many Corporations or Societies working under the Govt. of India for administrative matters connected therewith or incidental thereto.
The CAT, as on date, serves as an effective mechanism for redressal of the grievances of the membersw of the following services.
(A) All India Services – 4
(B) Other services regulated by the Central Government – 46
(C) Other services covered by the Central Civil Services Rules – 20
(D) Corporations/Societies and other organizations which come under the purview of the CAT under Section 14 of the Act – 202.
All this is not to mention a large number of establishments that have been brought under the provisions of State Administrative Tribunals.
At this stage, we may take a clue from Physics. It is a well-known principle in Physics that the performance of a machine as also of a system can increase by a quantum jump only with an effective feed-back mechanism. The CAT has now come to a standing where such a feed-back mechanism must be introduced. By the time of its Silver Jubilee year, the CAT has accumulated a wealth of valuable judicial material in the form of decisions and judgments rendered by the eminent members of the Tribunal. It is a worthy material for a serious study and research by scholars and senior level students of law. Findings of these researches will be a valuable input for introducing reforms in administration as well as in the rules and practices of various departments from which the cases coming up before CAT get generated. Although, the reportable judgments of this Tribunal are being published in certain law journals, no effort has been made for throwing open the valued materials available from the archives of the Tribunal for encouraging study and research. Such activity is likely to benefit about 40 lacs Central Govt. employees and other nearly 60 lacs employees of the other organizations which have been brought under the purview of the CAT. Such research will also help the cases arising at the level of State Govt. employees and also in the adjudication in private sector.
But first, let us look into a few landmark judgments in the history of CAT. From Apex court they are --
S.P. Sampath Kumar Vs. Union of India – (1987) 1 SCC 124;
Dr. Mahabal Ram Vs. ICAR – (1994) 2 SCC 401'
L. Chandrakumar Vs. Union of India & Ors. - (1997) 3 SCC 261 and
State of Madhya Pradesh Vs. B.R. Thakare & Ors. - 2002(1) SCSLJ 25.
Three other HC cases have also acquired importance, namely,
Thammaiah Chari Vs. State of Karnataka & Ors. - 2005(1) ATJ 324
Divisional Railway Manager, South Central Railway, Hubli & Ors. Vs. Smt. G.L.Patil W.P. No.9551 OF 2003 (S-CAT),
both of the High Court of Karnataka and
-------------------------vs.--------------------------------- Kolkata HC

It has been a matter before the Apex Court again and again as to the validity of the judgments passed by a Single Member Bench. In this regard, Section 5(6) of the Act is important which reads
"(6) Notwithstanding anything contained in the foregoing provisions of the section, it shall be competent for the Chairman or any other Member authorized by the Chairman in this behalf to function as [a Bench] consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases of such matters or such matters pertaining to such classes of cases as the Chairman may by general or special order specify.
Provided that if at any stage of the hearing of any such case or matter, it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting [two Members], the case or matter may be transferred by the Chairman or as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit."

while entirely examining the position of Section 5(6).
As opined by Hon'ble Judicial Member CAT Shri Shankar Raju, “It is no more res integra that Section 5 of the Administrative Tribunals Act, 1985 mutatis mutandis applies to the State Administrative Tribunals in the State.” Thus the chairman of CAT as well as any State tribunal has powers to send matters to a single member bench but subject to the proviso as above.
Section 5 of the A.T. Act does not distinguish between Judicial and Administrative Members in the matter of jurisdiction, powers and authority to be exercised by the Benches.
A Constitution Bench of the Apex Court in L. Chandra Kumar Vs. Union of India & Ors. (1997) 3 SCC 261, examined the constitutional validity of statutory provisions of A.T. Act and functioning of the Tribunals and while dealing with the issue of appointment of Administrative Members, the following conclusions have been arrived at.

"95. We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. It has been pointed out that Administrative Members who have been appointed have little or no experience in adjudicating such disputes. The Malimath Committee has noted that at times IPS officers have been appointed to these Tribunals. It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenure. Fore these reasons, it has been urged that the appointment of Administrative Members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It must be remembered that the setting up of these Tribunals is founded on the premise that specialist bodies would, by virtue of their specialized knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of Judicial Members and those with grassroot experience would best serve this purpose. To hold that the Tribunal should consist only of Judicial Members would attach the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that Administrative Members are chosen from amongst those who have some background to deal with such cases."

S.P. SAMPATH KUMAR versus UNION OF INDIA & ORS
Supreme Court Cases
1987 SCR (3) 233 1987 SCC Supl. 734 JT 1987 (2) 626 1987 SCALE (1)1317

HELD: 1. In the case of recruitment to the Central Administrative Tribunal the appropriate course would be to appoint a High Powered Selection Committee beaded by a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India, while in the case of recruitment to the State Administrative Tribunals the High Powered Selec- tion Committee should be headed by a sitting Judge of the High Court to be nominated by the Chief Justice of the High Court concerned.
In the case of recruitment to the Central Administrative Tribunal the appropriate course would be to appoint a High Powered Selec- tion Committee headed by a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India, while in the case of recruitment to the State Administrative Tribunals, the High Powered Selection Committee should be headed by a sitting Judge of the High Court 235 to be nominated by the Chief Justice of the High Court concerned.
In S.P. Sampat kumar vs. union of India (AIR 1987 SC 271), the Supreme Court upheld the validity of art. 323-A and the Act as the necessary changes suggested by the court were incorporated in the Administrative Tribunal Act.
In a landmark judgment in L.Chandra kumar vs. union of India (AIR 1997 SC 1125) a seven-member constitutional bench of the supreme court has unanimously while reconsidering the SAMPATH KUMAR'S CASE, has struck down clause 2(d) of articles 323A and clause 3(d) pf art. 323B which provided for the exclusion of the jurisdiction of the high courts under articles 226 and 227 and the Supreme Court under article 32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic structure of the constitution.
Firstly, the 'Apex Court' by a Five Judge Constitution Bench, headed by the then Hon'ble Chief Justice, Justice P.N. Baghavathi, examined the constitutional validity of Article 323-A and its provisions in S.P. Sampath Kumar Vs. Union of India and others (Reported in A.I.R 1987 � Supreme Court � page 386). The said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal.

Thereafter, a seven Judge Constitution Bench of the Supreme Court in 'L. Chandra Kumar Vs. Union of India and others case (Reported in AIR 1997 Supreme Court � page 1125) while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in 'S.P. Sampath Kumar's case', but also held that, the Tribunals are supplementary in their role and the power of 'Judicial Review' vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the 'Administrative Tribunals Act, 1985' which excludes the jurisdiction of High Courts.

�To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them�.

While rejecting the said plea as indicated above, the Apex Court suggested for creation of 'Single Umbrella organisation' to over see the functioning of the Tribunals in the country.

In the Dr. Mahabal Ram's case, the Hon'ble Apex Court has observed the following:
"6. Sub-sections (2) and (6) appearing as limbs of the same section have to be harmoniously construed. There is no doubt that what has been said in Sampath Kumar case would required safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, he many cases before the Tribunal where very often no constitutional issues or even legal points would be involved. Mr. Ramamurthi, Senior Counsel suggested to us in course of the hearing that keeping the principles indicated in the Constitutional Bench judgment in view, the single Member contemplated under sub-section (6) should be meant to cover a judicial member only. That view perhaps not be appropriate to adopt. On the other hand, we are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rotationalized."

It is thus clear that even at the suggestion of Senior Counsel who urged that Section 5(6) should mean to cover a Judicial Member only, the Apex Court has not been ready and did not consider this view to be appropriate to adopt. On the other hand, they found it sufficient for safeguarding the interests of claimants going before the Tribunal to hold that:-

"........while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should to to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rotationalized."

Thus, the Apex Court has not approved the interpretation that the constitution of a Single Bench of Judicial Member alone should be allowed. The Apex Court has clearly laid down "as a ratio of dicidendi that when before single Bench consisting of an Administrative Member the question of law and its interpretation in the context of constitutional provisions is in issue, the matter should not be assigned to a Single Member. Accordingly, the above decision does not distinguish between a Judicial Member and an Administrative Member and uniformly applies to both the categories in so far as complex nature of question of law and interpretation of certain constitutional provisions are concerned. A deemed reference is that except two categories referred to above, a Judicial as well as an Administrative Member are competent to constitute a Single Bench and also within the jurisdiction to decide the matters.
In Govt. of Madhya Pradesh Vs. B.R. Thakare reported in 2002 (1) SCSLJ 25, the Hon'ble Supreme Court set aside the order passed by an Administrative Member on the ground that he is not competent to pass an order.

Relying on the judgment of Hon'ble Supreme Court in Thakare's case, the Hon'ble igh Court of Karnataka & the High Court of West Bengal at Calcutta held that the Administrative Member is not competent to decide a matter. As already stated, the decision rendered by Hon'ble Supreme Court is applicable to the facts circumstances peculiar to the case.

The decision of the two High Courts have resulted in a piquant situation where the notification of Hon'ble Chairman dated December 18, 1991, is partially nullified in the Benches of Bangalore and Kolkata and the Administrative Members in the two Benches are precluded from deciding the cases, falling within the subjects notified by the Hon'ble Chairman, whereas in other Benches, there is no such fetters on the powers of the Administrative Members.

The validity of the Administrative Tribunals Act 1985 was upheld by the Hon'ble Supreme Court of India in Sampath Kumar Vs. Union of India........... whereby the Hon'ble Supreme Court emphasised the theory that the Administrative Tribunals shall be an effective substitute for the High Courts. However, the theory was discountenanced by the Hon'ble Supreme Court in various subsequent decisions and the matter came to be reviewed by the Constitutional Bench before the Supreme Court of India in L. Chandrakumar Vs. Union of India JT 1997(3) SC – 589.who repudiated the theory in so far as taking away the power of the High Courts to hear writ appeals filed before itself against the orders of the Administrative Tribunals under Article 226 and 227 of the Constitution of India. Their Lordships held that the power of judicial review by the High Courts within their territorial jurisdiction is under Articles 226 and 227 of the Constitution and it is one of the basic features of the Constitution which cannot be taken away by way of an amendment or enactment by the Parliament. However, their Lordships qualified by propounding that only a Division Bench in the High Court can undertake a judicial review of the decisions rendered by the Administrative Tribunals. At the same time, the Hon'ble Supreme Court also dispelled the contentions raised from various quarters about advisability of appointing the Administrative Members on these Tribunals and held that (a) there is no illegality in the appointment of the Administrative Members and (b) the Administrative Tribunals are competent to decide the constitutional validity of any statutory provision except in so far as it relates to the statutory provisions of its own Act under which the Hon'ble Members have been appointed.

The CAT, as on date, serves as an effective mechanism for redressal of the grievances of the membersw of the following services.
(A) All India Services – 4
(B) Other services regulated by the Central Government – 46
© Other services covered by the Central Civil Services Rules – 20
(D) Corporations/Societies and other organizationswhich come under the purview of the CAT under Section 14 of the Act – 202.
All this is not to mention a large number of establishments that have been brought under the provisions of State Administrative Tribunals. A study of the details of the above mentioned case law of L. Chandrakumar Vs. Union of India reported in JT 1997(3) SC – 589, throws light on the impressions created in the mind of the Hon'ble judges about the functioning of the Administrative Tribunals. Without any exception, all the Members of the Bar arguing before the Bench and expressed a view that the functioning of the Tribunals leave much to be desired. The Hon'ble Supreme Court referred at length to the report of Justice V.S. Malimath Committee on the functioning of the Administrative Tribunals in which Hon'ble Justice Malimath has elaborately discussed the short- falls in the functioning of the Tribunals. He has concluded that "Tribunalization of justice in our country is not satisfactory and encouraging."

Although, there is no internal evidence to prove our point, it seems to us that the adverse observations and comments that are raised in the Justice Malimath's report and the judgment of the Hon'ble Supreme Court in L. Chandrakumar's case arose out of a poor performance of some of the State Administrative Tribunals. The following observation of Justice Malimath Committee report which has been extracted by the Hon'ble Supreme Court in the case referred to above is revealing:-

"The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the States where they have been established for their abolition."
In this context, it may be noted that in some States the State Administrative Tribunals have been wound up following the decision by the Hon'ble Supreme Court in L. Chandrakumar's case. These State Governments observed that by reintroducing the jurisdiction of High Courts over the matters in which the State Administrative Tribunals alone had jurisdiction hitherto entails an additional financial burden to the parties thereto, besides dragging the litigation further. It is possible that these states also found that the performance of the State Administrative Tribunals was not quite satisfactory. A joke is told about the UPAT that they decided to summon the Chief Secretary, whereopon the government promptly decided to take away the powers of contempt from them.
We did not come across any such adverse observation made by the Justice Malimath Committee or by the Hon'ble Supreme Court in the above case about the functioning of the CAT or State Tribunals. If someone will study the statistics of the writ of appeals before the High Courts and the Supreme Court where the decisions of the Tribunals were upheld, then alone we will know the percentage of confirmation of the decisions rendered by Tribunals which we feel, will be very high. Such incidence of confirmation of the decisions of the Tribunal will be a great indicator of efficacy, success of the justice rendering mechanism of the Tribunals. We are not aware if any such statistics are available in the DoPT or any other forum, but, we strongly feel that such a mechanism should be created.
In the history of CAT, two core issues come up – one of which was about the writ jurisdiction of the High Courts. Another was the issue regarding the disposal of cases by a Single Member Bench. As back as in 198....? the then Chairman of CAT has looked into the question of categorization of cases appearing before the CAT and prescribed guidelines as to what type of cases can be brought and heard before a Single Member Bench. He was careful to include a comprehensive guideline to say that when the parties apply for a case to be heard by a Division Bench, then so shall be done. Also, later in the case of ........... Ram Vs. ICAR, their lordships in case No................... have held that there is no bar on a Single Member Bench hearing and disposing the cases except when there is an issue of constitutional interpretation. This was further quoted in L. Chandra Kumar Vs. UOI in Ors. In which their Lordships held that the vires of Sec. 5(6) is not questionable. However, precaution must be taken that when a question of constitutional interpretation comes, the matter must be referred to a Division Bench of the Tribunal. Subsequently, another case became important in the history of CAT namely ..............Govt. of MP Vs. Thakre & Ors. The case is interesting enough to merit some details at this juncture. First of all, it arose not from any application decided by CAT but from an application decided by MPAT. Therein the Chairman of MPAT had previously issued a notification authorizing Member (Judicial) of MPAT to exercise all the powers of the State Tribunal itself When the case of Shri Thakre & Ors. Came up, it was heard by another Member (Administration) sitting single who disposed it. Hence, the main issue before the Apex Court was whether the said order was ab-initio ultra vires. While deciding the matter, their Lordships came across two issues -
(a) Whether the authority of the Tribunal can at all be delegated to a Single Member Bench?
(b) When it is delegated to one particular Member (Judicial), whether a Member (Administration) can exercise the authority?
Without any need to go into first question, their Lordships have set aside the decision of MPAT on the ground that the matter was disposed of by a Single Member (Administration), who was not authorized by Chairman.
It is pertinent to note that in the said judgment although their lordships have recorded that the quashing of the orders is not merely on the ground that the Chairman had not authorized the Administrative Member. On the other hand, in case of CAT, the notification issued about Single Member Bench cases, no distinction has been made between a Member (Judicial) and a Member (Administration) and this position has been upheld in the case of L. Chandrakumar Vs. Union of India & Ors. Hence, the CAT has to take up a categorical stand in the issues raised by the subsequent judgments of High Courts of Karnataka and Kolkata.
Much water has flown under the bridge since the L. Chandrakumar's case. With due respect for the Hon'ble Supreme Courts decision, it may be noted that many State Governments found it unviable proposition to continue with the Administrative Tribunals when the Supreme Court restored to the High Courts the power of judicial review over the decisions of the Administrative Tribunals. It is also pertinent to know that the Law Commission of India has also recommended for reversing the ratio of the Supreme Court in the L. Chandrakumar's case whereby the jurisdiction of the High Courts over the decisions of the Administrative Tribunals was restored. It is learnt that the Law Commission had recommended for an Appellate mechanism under the Administrative Tribunals Act itself so as to obviate the need for judicial review of the High Courts. Although that will not bring down the number of times a litigation will be fought, we feel that it will lessen the already overburdened High Courts. It is satisfying so far, that the CAT has been continuing its journey and no adverse observations have emanated from any of the higher Courts including the Supreme Court about its efficacy and capacity to render justice. There was a time when it would appear that the Central Govt. was contemplating seriously in terms of closing the CAT and the then Cabinet Secretary has gone on record to state the thinking of the Central Govt. on these lines. However, the day is well past. It is now for certain that the Central Administrative Tribunals have come to stay as an alternative form for grievance redressal for the Central Govt. employees. The Administrative Tribunals (Amendment) Act, 2007, has further brought far reaching amendments, the vires of which was challenged before the Hon'ble Supreme Court in ............................................. The Hon'ble Supreme Court has also upheld the validity of the Administrative Tribunals (Amendment) Act, 2007. In its judgment rendered on ....................., now all the Members of the Tribunal appointed after the amendment have been equated with the High Court judges in terms of status and other perquisites by elevating the status of a Member of this Tribunal. It is required that the quality of the output of the Tribunal has also to be comparable to that of the High Court, even though, it is no longer treated as a substitute to the High Court.
For raising the standards of the CAT, however, these amendments in the Act are a necessary but not sufficient condition. We may recount some efforts towards system-improvement. For example, the status and the qualifications of the Presiding Officers of the Tribunal have been raised to a level equal to the High court Judge and the Hon'ble Members have strived to live up to the expectations of the public. Another good idea is that the Hon'ble Chairman has been deputing the newly appointed Members to the Interactive Sessions in the National Judicial Academy, so as to update their knowledge. A third initiative is a system of Annual Conference of Hon'ble Members where serious discussions take place over various administrative and judicial matters and efforts are made to clear all possible bottleneck in the discharge and functions of Tribunals. To these we may add the need for skill upgradation of the administrative staff. The members of the staff as well as officers in the Registry are no doubt quite experienced in the functioning of the Tribunal and in discharging their functions as per law, yet, they require constant updating of their knowledge in administrative and judicial matters. This will be done only by imparting to them the required training in the Administrative Training Institutes as well as judicial Academies. The CAT, Principal Bench may have to bestow their attention and efforts in evolving an arrangement whereby the members of the staff and the officers of the Registry are constantly exposed to the rules and the basic principles of law governing their administrative and quasi-judicial functions.
Having examined these issues, we come back to the question of quantum jump in system building through research. Although our decisions are reported by some journals, there is no instance of any scholarly assessment and presentation of the contribution made by this Tribunal in the area of administrative law. The CAT, has played a pivotal role in the development of administrative law, as a specialized branch of law. If the rate of approval of its judgments on appeal before the Hon'ble High Courts and Hon'ble Supreme Court is any guide, our achievement is of a high order. We have a wealth of precious materials available with us and it should be used more fruitfully for the purpose of research which could be of immense use not only for legal practitioners of Administrative Law, but for the more than 272 services/organizations falling under the jurisdiction of this Tribunal. The Tribunal may engage the services of students prosecuting courses in law in various colleges and Universities for studying and preparing data-bank from the various judgments of this Tribunal. Then comes data sorting and data mining thorough their research and formulate the legal principles and theories that have evolved over a period of time through the decisions of this Tribunal. This study and codification through the senior-level students prosecuting law in the Colleges and Universities may go a long way in tracing the evolution of the legal principles in administrative law. This will serve as a guide for all the Central Govt. officers and other participating institutions in this Tribunal. This may serve not only as a guide for the Central Govt. organizations, but for other similar Tribunals and adjudicating bodies in private sector too. Further, about 38.75 lakh of Central Govt. employees and other employees of organizations under the Tribunal will find the effort and its result very useful. The decisions will serve as a guideline for many administrative reforms. Such research will also give a better career prospect to the students of Law who may specialize in this field.
It would not be amiss to mention some impressions that I collected in my short spell of working as Member CAT for last six months about the nature of cases. First, I find that a number of cases come from Group 'C' and 'D' employees and it is really a good idea of approaching CAT is less expensive for them than approaching High Court. Second, we receive many cases in which a request for compassionate appointment is rejected. These cases when seen together as a group, makes one feel that the departments need to have more transparency and clarity in their Rules. Admittedly, only 5% of the total vacancies can be filled from applicants claiming compassionate appointment. The departments are therefore, required to decide priority based list of cases taking into consideration the economic hardship. Some departments have made very elaborate rules as to how they allocate marks and deal with various grounds for economic hardship. Yet, the fact remains that the concept of economic hardship has lot of intangible angles to it and thee can be no perfect mathematical formula. This factor contributes largely in increasing the number of cases coming up before the Tribunal where the subject matter is the rejection of application for compassionate appointment. Hence, through the Research support as discussed earlier, if it is possible to rise above the daily routine of the work in the Bench, then, a more cogent view can be formulated and proper directives can be given to the administrative departments. Similarly, I have come across large number of cases where the subject matter is merely a request to the department to finish a departmental enquiry within a reasonable time or even worse, to consider a representation either for transfer or some such small issue in which the department has just not bothered to give a reply to the applicant in a reasonable time. These cases are indicative of a certain amount of careless attitude that appears to be cropping up in the administrative system and are a pointer to a certain irreversible malice. It is therefore, a subject matter of a good academic research which needs to be conducted by students or teachers in academia, but with active consultation with the Members in CAT .
We feel that the occasion of the Silver Jubilee of CAT is a right muhurat for launching this type of study by the CAT.

Wednesday, March 7, 2012

Women in Governance -- Economic Digest- MEDC

Women in Governance
My article " Women in Governance " is published as a cover story in March issue of the Economic Digest of Maharashtra Economic Development Council
here is the text

WOMEN IN GOVERNANCE

The role of women in Indian Governance has become a matter of study only recently. About ten years back I had undertaken to compile small biographical sketches of at least some women IAS Officers, who came in service upto 1970, but could not proceed beyond Anna Malhotra, Pratima Trivedi and Nirmala Buch. Later, I found some short articles in Marathi, pen-sketching a few women IAS from Maharashtra. One study was tried by the Lal Bahadur Shastri. National Academy of Administration at Mussoorie. But none has been persuaded with seriousness it deserves, and none has aimed at a meaningful compilation.

On this backdrop, I was quite pleasantly surprised one day when someone said to me “you women officers, who came in the governance in initial years do not know what yeoman service you have done and for what large number of girls you have been role models." The person was Mr. Jayant Salgaonkar, well known in Maharashtra as an astrologer and publisher of almanac – based calenders and hence presumably an orthodox or conservative personality.

When we talk of women in governance, we cannot restrict ourselves only to the IAS Officers alone, yet undoubtedly they have a major role in the whole theme.

Speaking of India, we have seen women in governance at different levels in different categories. First comes those who played the leader role, such as Indian Gandhi, the Prime Minister, Pratibha Patil – the President of India and a handful of those others who were Chief Ministers of States such as Nandini Satpathi and Sheila Dixit or Governors such as Fatima Bibi. By and large, they have played their leader's role well. In comparison many more women politicians who have served as ministers either in centre, or in the States, have not shown their enterprise or leadership so well – they have not left much of a mark for their ideas or vision or work style or creativity in the departments which they handled as their portfolio. They are not much remembered for their scholarlines or as strategist or as a thinker.

Women in IAS do stand out as a class. Right after the independence, we discontinued the recruitment in Indian Civil Service – that was London – based and meant for 'British Raj'. But Sardar Patel had recognized the importance of the civil services and a robust bureaucracy which could be like a supporting backbone for running the country's Administration. He set up a systematized recruitment channel to Indian Administrative Service right from 1948 itself. And thanks to the participation of a large number of women leaders in the freedom struggle, nothing was considered untoward when in 1949, the first lady IAS namely Anna Kurien (now known as Anna Malhotra) got selected. The trend of having one or two lady officers in subsequent batches continued till 1970 and most of them were Delhi based. The news of this opportunity for women did not reach other parts of the country so early.

Anna was allotted the Tamil Nadu cadre. When initial one year district training was over, she was promptly posted at the secretariat in Madras while other male colleagues were given charge of a sub-division to work as Assistant Collector-cum-SDM. When Anna took up the issue with the then Chief Minister, Chakravarti Rajgopalachari, he turned out to be one orthodox Tamilian and refused to grant that she could handle Law and Order or Stategic Management. Finally, only at the intervention of Delhi and because of her perseverance, she was posted as SDM. What might have happened if she had not fought so well! As many as 30 years passed after her battle, when women IAS officers of Maharashtra had once again to agitate for getting posted as C.E.O. or Collector in a district and 60 years have passed but a women officer is still not considered fit for becoming Chief Secretary, though 3 years back, two got posted as Home Secretary in succession. By now almost every state has seen a women Collector but only 4 have seen a woman Chief Secretary – Madhya Pradesh, Assam, Uttar Pradesh and Tamil Nadu. Although, women officers of Indian Foreign Service have held highly strategic posts such as Ambassador to the USA, none from IAS has yet become Cabinet Secretary and none from IFS as India's Secretary Foreign Affairs.

Looking at women Collectors most of them have carried out this job in such a way that they have been remembered for excellent handing of the districts – thus reconfirming that C. Rajgopalachari or other patriarchs of his type need not have feared when Anna was first posted as SDM.

With a pinch of salt it has to be admitted that some women IAS officers have not lagged behind in corruption – two officers who will always be talked about in this regard are Neera Yadav - Ex Chief Secretary of Uttar Pradesh and Tinu Joshi of Madhya Pradesh. Yet I find that one of their important characteristic is that their husbands were equally high ranking government officers, and whatever corruption they practised was in company of their husbands.

Although the number of women officers in IAS and IFS increased substantially during and after seventies, they still constitute only about fifteen percent of the service.

Coming to Uniformed forces, dealing with internal and external security, an important visible presence of women officers is found in the IPS (Indian Police Service) but not so much in Army. It is unfortunate that women had to fight legal and mental battles to get into these services. But it is through such battles that we could get the inspiring biography of Kiran Bedi-the first lady IPS Officer or the stories of first batch of Naval lieutenants or forest officers or fire brigade officers and so on. The battles are not yet over. It must be said from the experience of these officers that they needed lesser strength and courage to fight criminals and enemies but more mental strength to fight the attitude of their male colleagues who always saw capable women officers as a bigger challenge than capable male officers or smart enemies.

But if the public were to be the judge of the quality of governance and toughness and fairness provided by the women police officers, then ask any lady employee of the subordinate services and her instant reaction is that she feels protected by presence of lady officer in IPS however remote may be her posting. Public of Satara still remember the time when they had Vandana Krishna as Collector and Meera Borwankar as SP and even the Superintendent of district jail at Satara was a lady, and the public perception is that the trio was in no way less competent than any all- male-trio at any time. The per centage of women IPS Officers is still only around ten and needs to increase to a more respectable level.

Another category of a large number of very high ranking women officers is that of other All India Services such as Customs, Railways, Post, Telecommunication, Defence Estate, Defence Accounts, Audit & Accounts, Revenue Service and so on. These officers usually do not have much of public presence and they remain behind the desk. Their presence is about 30-40 percent in these jobs and they have proved equal to their male counterparts in all aspects. Though lacking in visibility, they have still provided high level motivation to youngsters to come in these services.

A very important category would be the Judges in the Supreme Courts and the High Courts. Here again we find a big gap in Supreme Court after Sujata Manohar. The number at the High Courts is also very small. I can recall only women judges in the Supreme Court so far Sujata Manohar, Fatima Bebi and Ranjana Desai as the Judges of Supreme Court and Leela Seth the Chief Justice of High Court. No lady Advocate has become the Solicitor General of India or Advocate General in any State. Similarly, a very few women Advocates have ever been the Presidents of Bar Association. This aspect is important because of a rising number of cases of atrocity against women. Although, I have nevel held that only female judges can appreciate the gravity of atrocity against women, it can be seen at times that the required sensitivity and attitude does not come to male judges as a matter of course but has to be cultivated by them consciously. This is where the women judges make a difference.

After 1985 and particularly after the 79th Constitutional Amendment which allowed 30% reservation of seats at the level of local self government, two important results have taken place. First was to give a similar reservation to women in many subordinate government cadres. This has paved way for recruitment of large number of women in the traditional as well as non-traditional areas. We can now see women employees in such organization as Police Constable, P.S.I, Fire Brigade, Naval Officers, Airplane Pilots, Railway Engine Drivers, Bus Conductors etc. Apart from those is banking, education animal husbandary, agriculture etc. Another effect is seen in the large scale presence of women at political level in the local self- government institutions such as Gram Panchayat Surpanch, Zilla Parishad President, Municipal Corporators and Mehyors in Municipal Corporations. The latest news in this regard which in my opinion must be celebrated as a welcome news is that several housewives have been elected to the Bombay Municipal Corporation. This is a big leap which would provide them a direct opportunity of participation in Governance. Even after their retirement, their political participation as a watch-dog for our democracy would continue. In Indian traditions where 60 to 70% of our women population are still playing the role of housewife and, therefore, by popular perception, not having great insight about the working of Government, this role-switching from housewife to a policy-maker of the largest Municipal Corporation is the most effective way to enlist and ensure the participation of a larger number of women- folk in the protection of our democratic polity.

The presence of women in governance can in last 65 years, therefore, be seen as a step-by-step happening. The initial large scale participation of women folk in our pre-independence struggle had demonstrated that women of India were capable of jumping from the role of a housewife to the role of a political fighter. This spirit went out after independence and we saw the sharp decline of women in political institutions. However, the pre-independence awakening as well as the relevant educational reforms paved way for women to take up such careers which took them to the higher levels of economic freedom and economic participation in country's. This career-oriented role was most prominent in government services but gradually career women also captured Private Sectors and Entrepreneurial challenges. It was felt that their role in political life could be only a sequel to their economic career. This would necessarily limit the number of women in political field. However, the recent BMC Elections would once again start the trend of housewives going straight into political career without any intermediate stage of econonic emancipation. This creates a good possibility of getting many more women-folk into the affairs of governance. I look differently at a fisher-woman getting elected to corporation from a housewife getting elected. For the fisher-women has tasted an economic freedom, but not the housewife. Hence, I consider this result as more fascination and promising.

In this regard it must be pointed out that initially when the participation of women in local self-government was facilitated, a situation was often witnessed where the women would prefer to be accompanied by their husbands for going to the Gram Panchayat's or municiple meeting. This was often quoted as the justification to demand that women should be relegated back into their role as housewife. I personally do not subscribe to this view. In my opinion even if any women today needs to be supported by her male relatives for taking a political decision in a political institution, it is only the initial aberration and over the time all women are bound to understand the importance of their own decision-making and their inherrent capability for taking a decision. This will complete the pyramid of various categories in governance where each level would see presence of woman working with full potential, whether at the level of Gram Panchayat, Municipality, Subordinate Government ranks or still Higher Government Services or Higher Politico-Executive Posts. Such a change would definitely increase the access of women to education, health, employment and a political power. It will also increase the capability of the Nation to take up more challenges and deal with them in confidence to bring success.
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From Vidya Dhopatkar vidyadhopatkar@gmail.com
Dear Madam,

Please find attached a copy of a letter for your article in MEDC’s Monthly Economic Digest for the month of March 2012.

Regards,

Vidya Dhopatkar
Economist – MEDC
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To                                                                                                        February 15th, 2012

Ms. Leena Mehendale, IAS

  Sub.: Request for an Article for MEDC’s Monthly Economic Digest.
             
Respected Madam,

As you are aware, for the last several years, MEDC has been publishing the Monthly Economic Digest, which is an update on global, Indian & Maharashtra’s economic trends & policy-issues. The Monthly Economic Digest has been widely read and well received by the Govt. officials, business, industry, academicians & media.

On behalf of Mr. Vithal Kamat, President, MEDC, and on behalf of the Editorial Advisory Board of the Monthly Economic Digest, I request you to contribute an article for our Digest on the subject of
“Women in Governance

I request you to send your Article of about 1200-1400 words by the 27th February 2012, so as to enable us to publish the same in our next issue slated for March 5, 2012, which will have the Lead Story on this subject on the occasion of International Women’s Day. The other authors that are contributing to the cover story are Dr. Vibhuti Patel, (Social Security and Social Protection), and Dr. Thanksy Thekkekara, (Micro Finance).

We also request you to send one page abstract by February 20th, 2012 for circulation among the Digest Editorial Board Members.

We look forward to your positive response and confirmation at an early date.

Thanks and with warm regards,

Yours sincerely,

 Dr. C.S. Deshpande


Executive Director