Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - India (Ratification: 1960)

Articles 1, 2 and 3 of the Convention. Discrimination based on social origin. The Committee notes the information provided by the Government regarding the implementation of the quota system for employment by the central and state governments of persons considered to belong to “scheduled castes, scheduled tribes and other backward classes”. The Committee notes from the figures provided by the Government that as of 1 January 2008, persons considered to belong to the scheduled castes (constituting 16.23 per cent of the Indian population according to the 11th Five-Year Plan (2007–12) (“11th Plan”), were represented in central government services as follows: 12.5 per cent in group A; 14.9 per cent in group B; 15.7 per cent in group C; and 19.4 per cent in group D. Total representation of scheduled castes was 16.51 per cent as of 1 January 2008. The Committee recalls that in November 2008, a special recruitment campaign was launched to fill the backlog of reserved vacancies, and notes that no recent statistics have been provided on the representation of scheduled castes for the whole of the reporting period. No new information is at the Committee’s disposal regarding the achievements of the reservation system in state government employment. The Committee understands that the Supreme Court is presently studying the legal implications of denying quota rights regarding jobs in government and educational institutions for Christian and Muslim Dalits, who have so far been excluded from the reservation system. The Committee further notes the information provided by the Government on the implementation during 2009–10 of the various schemes and programmes aimed at educational, economic and social empowerment of the scheduled castes, including a new Centrally-sponsored Scheme “Pradhan Mantri Adrash Gram Yojana (PMAGY)” initiated during 2009–10 on a pilot basis in 1,000 villages having more than 50 per cent of the population belonging to scheduled castes. However, from the information provided it appears that for some of these programmes and schemes the level of expenditure or the number of participants or beneficiaries covered has decreased. The Committee regrets, however, the absence in the Government’s report of information regarding steps taken to complement protective legislation with “promotive legislation which covers the rights of scheduled castes with respect to education, vocational training, higher education and employment”, or any affirmative action measures, in particular for the private sector as foreseen under the 11th Plan, or regarding any awareness-raising campaigns on the prohibition or unacceptability of caste-based discrimination in employment and occupation. Recalling that discrimination in employment and occupation against men and women due to real or perceived belonging to a certain caste is unacceptable under the Convention, and that continuing measures are required to end any such discrimination, the Committee urges the Government to provide information on the specific measures taken to launch and intensify awareness-raising campaigns on the prohibition and unacceptability of caste-based discrimination in employment and occupation, including on the steps taken to seek the cooperation of the workers’ and employers’ organizations in this regard. The Committee further requests the Government to provide information on the adoption and implementation of any new measures, including any legislative measures referred to under the 11th Plan or any affirmative action measures, and to provide comprehensive and up-to-date information on the results achieved and the impact of the various existing schemes and programmes with respect to equality of opportunity and treatment of persons belonging to the scheduled castes, including the reservation system for the public service at the central and state levels. Further, the Committee requests the Government to provide information on the outcome of the Supreme Court decision with respect to the denial of quota rights of Dalit Muslims and Dalit Christians under the reservation system, and any follow-up thereto.

With regard to the enforcement of protective legislation, the Committee notes the information in the Government’s report regarding the cases handled by the police and the special courts regarding the application of the Protection and Civil Rights Act, 1955 (PCR Act), and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (POA Act), which provide for the punishment of the practice of untouchability. According to the statistical information provided by the Government on the cases handled by the police and the courts during 2008, the total number of court cases regarding scheduled castes under the PCR Act was 1,876, only 55 of which resulted in a conviction (compared to 2,613 cases and 63 convictions in 2007). With respect to the POA Act, the Government’s report indicates that there were 104,898 cases before the courts in 2008, out of which 6,688 resulted in a conviction (compared to 104,003 cases and 6,505 convictions in 2007). Statistics however continue to suggest that under both Acts large numbers of cases remain pending before the courts. The Committee further notes that the “Committee for effective coordination and ways and means to curb offences of untouchability and atrocities against scheduled castes and scheduled tribes and effective implementation of both Acts” has so far held nine meetings (the last one in February 2010), and reviewed 25 states and four Union Territories. Noting the large number of pending cases and the decreasing number of convictions, the Committee requests the Government to take additional steps to ensure the strict enforcement of the Protection of Civil Rights Act, 1955, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, by the special police and special courts, including measures mentioned in the 11th Plan such as capacity building and awareness raising of the judiciary, public prosecutors and police to reduce the backlog and delays in the administration of cases in courts and to speed up the issuing of judgments. The Committee also requests the Government to make every effort to collect and provide more up-to-date statistics on the number and outcome of the cases handled by the competent authorities. Recalling that the State and District Level Vigilance and Monitoring Committees review the implementation of the POA Act and PCR Act, the Committee requests the Government to provide information on the specific activities of these Committees.

Manual scavengers. For many years, the Committee has been conducting a dialogue with the Government regarding the practice of manual scavenging and the fact that Dalits, and very often Dalit women, are usually engaged in this practice due to their social origin, in contravention of the Convention. The Committee recalls that the 11th Plan referred to 342,000 remaining manual scavengers, while the Government previously reported that a total of 138,464 manual scavengers were still to be liberated under the Integrated Low Cost Sanitation (ILCS) Scheme as of 31 March 2009. The Committee had expressed serious concern that, despite the efforts taken by the Government, thousands of Dalit men and women still found themselves trapped in this inhumane and degrading practice. The Committee has been particularly concerned at the apparent weak enforcement of the Employment and Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993 and at the fact that the practice even continued in employment under the Government’s authority contrary to Article 3(d) of the Convention. The Committee notes that, according to the Government’s report, the 1993 Act so far has been adopted by 23 states and all union territories. Two states report that they do not have dry latrines and that they are scavenger free; two states have adopted their own legislation on the subject. With regard to enforcement of the Act, the information in the Government’s report indicates that only the State of Uttar Pradesh has reported that 32,314 cases of prosecutions have been filed in the Judicial Magistrate’s Court since 10 April 2010 and that a fine has been imposed in 5,206 cases. Other states merely report that the State is either scavenger-free, that no cases have been reported or that the issue is not applicable in that State.

The Committee notes the ILO Project on the Promotion of Equality at Work in India which aims to support the central and state governments, workers’ organizations and civil society organizations in their efforts to eradicate manual scavenging and promote equality in employment for caste-based excluded communities like the Valmikis. It notes in this context that research and consultative meetings have been carried out at regional and national level with a view to supporting efforts by the Government to eradicate manual scavenging by the end of 2012, as foreseen in the 11th Plan. The Committee notes that the National Advisory Council (NAC) was reconstituted in March 2010 to provide policy advice and legislative suggestions to the Government with a special focus on social policy and the rights of excluded groups (Order 631/2/1/2004.Cab of 31 May 2004 and Order 1/3/2/2010.Cab of 29 March 2010). In a Resolution on Manual Scavenging of 23 October 2010, the NAC expressed concern at the persistence of manual scavenging in India, the poor implementation of the legislation and rehabilitation schemes, in particular the Self-Employment Scheme for the Rehabilitation of Manual Scavengers, and urged the various relevant departments of central government, including Railways, to abolish the practice by the end of the 11th Plan period. The Committee also notes that the NAC made proposals regarding further follow-up steps to be taken by the Government, including the adoption of new legislation, a new nationwide survey involving government officials and civil society to collect accurate data on remaining dry latrines and manual scavengers, the demolition of all dry latrines, improved access requirements to rehabilitation schemes of manual scavengers, especially women, and their families, and a specific programme for the education of children of families presently or previously engaged in manual scavenging. The Committee also understands that the Supreme Court of India has issued orders condemning certain practices faced by government contract workers, in particular members of the Valmiki community.

In addition, the Committee notes that in June 2010 the Ministry of Labour and Employment established a Task Force on Sanitation and Leather Workers which was to develop a social security scheme and propose new legislation covering all forms of manual scavenging. The Task Force drafted a new bill for sanitation workers entitled “Sanitation Workers (Regulation of Employment and Conditions of Service) Bill”. The Committee also notes that the Government again expressed its commitment to eliminating the practice of manual scavenging in the Approach Paper to the 12th Five-Year Plan (2012–17) “Faster, Sustainable and More Inclusive Growth” of the Planning Commission (October 2011), and has proposed the Prohibition of the Employment as Manual Scavengers and their Rehabilitation Bill, 2012 to strengthen accountability mechanisms and widen the definition of manual scavenging. The Committee understands that the Ministry of Social Justice and Empowerment constituted in April 2012 a Committee for recommending modalities for conducting a Survey of Manual Scavengers and their dependents, taking in consideration the data available from the 2011 Census and the Socio-Economic Caste Census (Order No. 190/12/2011-SDC-IV). While taking due note of the Government’s expression of commitment to ending the practice of manual scavenging, the Committee requests the Government to take vigorous and comprehensive measures to combat caste-based discrimination and end the degrading and inhumane practice of manual scavenging by the set target date. The Committee also requests the Government to provide information as follows:

• (i) the results of the 2011 Census and the Socio-Economic Caste Census with respect to the existence of dry latrines and manual scavengers;
• (ii) the concrete follow-up given to the proposals made by the National Advisory Council, in particular the Survey on Manual Scavenging and measures to address the gaps and to improve the effectiveness of the rehabilitation schemes, particularly for women beneficiaries, and the education programme for children of manual scavengers;
• (iii) any developments regarding the adoption of the Prohibition of the Employment as Manual Scavengers and their Rehabilitation Bill, 2012 and the Sanitation Workers (Regulation of Employment and Conditions of Service) Bill;
• (iv) any relevant orders or decisions by the Supreme Court relating to caste-based discrimination involving manual scavengers, including the Supreme Court Order regarding government contract workers; and
• (v) any other measures taken in the context of a multifaceted approach designed to promote equality of opportunity and treatment irrespective of social origin and address caste-based discrimination, including awareness raising for manual scavengers of their rights, avenues for redress, rehabilitation schemes and programmes providing alternative livelihoods; educational programmes addressing the general public and local government bodies and law enforcement officials on caste-based discrimination.

Equality of opportunity and treatment of women and men. The Committee notes from the information provided in the Government’s report that the implementation of the Mahatma Ghandi National Rural Employment Guarantee Act, 2005 (MGNREGA), which provides for employment guarantee schemes and an unemployment allowance, covers the entire country and that employment guarantee schemes are operational in 618 districts. Women’s participation in the schemes has been steadily rising from 41 per cent in 2006–07 to 48 per cent during 2008–09. By the end of 2010, the overall participation of women was 49 per cent although significant differences in participation rates exist between states (ranging from less than 20 per cent to over 80 per cent participation of women). With regard to training, the Committee notes the general information provided by the Government on the trades and skills offered to women by the network of National and Regional Vocational Training Institutes (NVTI and RVTIs), many of which have a tendency to lead to jobs and occupations traditionally considered “suitable” for women. The Planning Commission is also considering a proposal for setting up twelve more institutes exclusively targeting vocational training requirements of women in the country. The Committee draws the Government’s attention to the fact that gender stereotypes regarding women’s aspirations, preferences and capabilities with respect to certain trades and skills continue to be an underlying issue affecting the application of the Convention. Providing vocational guidance and taking active measures to promote access to education and training, free from considerations based on stereotypes or prejudices, is therefore essential in broadening the range of occupations from which men and women are able to choose, and in achieving gender equality in the labour market (General Survey on fundamental Conventions, 2012, paragraph 750). The Committee requests the Government to continue to provide information on the implementation of MGNREGA, including information on the percentage of women participating in the schemes who have been provided with work, or with an unemployment allowance, including women of scheduled castes and tribes, “other backward classes” and minorities. The Committee also requests the Government to provide information, disaggregated by sex, on participation rates in the various vocational training courses offered by the NVTI and the RVTIs, and on the measures taken to ensure that the vocational training courses offered to women are free from considerations based on stereotypes or prejudices.

The Committee had previously noted from the 11th Plan (paragraphs 4.41–4.46) that the labour force participation of women remained much lower than that of men and that in urban areas unemployment was much higher for young women than for men in the corresponding age group in both the unorganized and the private sectors. The Committee notes that the Government in a very general manner refers to the objectives of the 11th Plan, without providing information on the concrete measures taken to promote equality of opportunity and treatment in employment and occupation in the public and private sectors, as requested by the Committee. The statistical data provided by the Government on literacy rates, attendance in educational institutions, and employment, relate to the period of 2005–06. Noting that the 12th Five-Year Plan (2012–17) is being developed, the Committee requests the Government to indicate the specific measures foreseen under the Plan to promote and ensure equality of opportunity in employment and occupation between men and women, in rural and urban areas, as well as the private, public and unorganized sectors. The Committee requests the Government to provide all relevant information on the results achieved under the 11th Plan with respect to action taken to promote women’s equal access to employment in the organized and public sectors, as well as government services. The Committee also requests the Government to make the necessary efforts to collect and provide more recent and relevant statistical information on the participation of men and women in employment, according to sector and employment status, if possible, allowing an assessment of the progress made over time.

The Committee is raising other points in a request addressed directly to the Government.