Class –LL.B (HONS.) IV SEM.

Subject – Human Rights

LL.B. (HONS) SEMESTER-IV

HUMAN RIGHTS LAW AND PRACTICE
UNIT –IV DISADVANTAGED GROUPS

1. Human Rights and disadvantaged Groups – women, prisoners, child, Dalits, Aid victims
and Minorities

2. Enforcement of Human Right in India

Disadvantaged or the Marginalized groups refer to those categories of people in a society

who remain in a state of deprivation and subjugation for centuries as a result of which they are
not able to attain a position of parity with the other sections of society in contemporary times.
Denied of their equal share in the social, economic and political rights, privileges and resources of
the country for obvious reasons over the years, such groups continue to remain in a vulnerable
position even after country gains independence and marches ahead on the path of progress and
development. In India, for instance, such groups of people included the vulnerable sections of the
society like dalits, adivasis, women, minorities, unorganized workers etc.
dalits adivasis women minorities unorganized workers
The discourse of human rights for such groups of people differs from the discourse of human
rights for other sections of society for at least two reasons.
First, owing to their long drawn social, economic and political deprivation, these groups become some
sort of marginalized lot in the society in comparison to the mainstream sections as a result of which the
notion, standards and exercise of the general human rights do not remain valid and meaningful for such
groups.
Second, each of the marginalized groups carries certain distinct physiological, social, economic, cultural,
religious and related traits which distinguish them from the rest of the people in society whose obvious
result is that the norms of human rights for latter could not be applied uniformly to the former.
Hence, a discussion on the issue of the human rights of the marginalized groups becomes an
exercise in diagnosing the ills and evaluating the remedies in action for the time being with a view to
evolve a holistic perspective on the human rights of these groups.

DALITS
Dalits or the Scheduled Castes have been the largest marginalized section of the Indian society.
Indeed, Caste has remained as one of the predominant paradigms of the Indian social system.
Emerging out as the perverted off-shoot of the classical and puratan varna-system of the ancient times,
it has introduced a variety of cleavages in the Indian society which in the course of time turned out to
be the most cruel and inhuman traits of glorious Indian civilization.
For the last many centuries, the Indian society if fragmented into hundreds of castes and sub-
castes neatly ordered into a hierarchical pyramidal form.
Broadly, three distinct levels of hierarchy in the caste system can be discerned:
a) the so-called forward castes people occupying not only the superior echelon of the social
hierarchy but also the power, privileges and false ego,
b) the middle order of the caste system consists of those people who own a part of the parameters of
position and distinguished by their profession and vocational acumen. This category of people is
generally termed as other backward castes (OBCs).

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c) The lowest rung of the social order is occupied by the people who have neither social status nor
economic powers and properties.

Known as dalits, in the contemporary political discourses and badly bereft of necessary
resources and rights, these people have been suffering from various despised social stigmas like
slavery, indenture and the curse of untouchability.

CHALLENGES IN ABOLISHING
THE CASTE- BASED STIGMAS

Ensuring the enjoyment of human rights for the vulnerable groups of people continues to be
the biggest challenge for the Indian democratic ethos. Various disadvantages faced by these people
are, though, common to both the OBCs and the dalits, it is the latter that has been at the receiving end
of the inequitable Indian social order.
Owing to the pollution and purity praxis, the Indian social set-up permitted the recognition
and acceptance of untouchability which is probably the greatest crime against the humanity. Efforts to
overcome the curse of untouchability were precious little till independence. Things started changing as
a result of the strong reservations expressed by Mahatma Gandhi and Dr. B. R. Ambedkar whose pressure
was so strong that the constitution makers had to enshrine its prevention under the chapter of the
fundamental rights. Article 17 of the Constitution declared that untouchability is abolished and its
practice in any form is prohibited. It gave a clear mandate to the state to eliminate the practice of
untouchability with all the forces at its command and with ruthless will.
Despite of the Article 17 coming into practice with the inauguration of the Constitution on 26
January 1950, no serious attempts were made to translate the spirit of the Constitution into practice.
However, with the enactment of the Untouchability (Offences) Act, in 1955, the things were assumed
to look up. But in spite of certain merits in arresting the practice of untouchability, it failed to make a
significant impact on the society due to certain inherent constraints and deficiencies. Hence in order to
make an improvement over this legislation, a parliamentary committee was appointed to look into the
matter.
Based on the recommendations of this committee, the Parliament, in 1974, effected major
changes in the principal Act which was redesigned as the ‘Protection of Civil Rights Act, 1955’. A little
later, the Parliament enacted one more piece of legislation to include certain additional issues not
covered under the previous Act. The new Act, known as the ‘Scheduled Castes, Scheduled Tribes
(Prevention of Atrocities) Act, 1989’, has gone a long way in protecting the human rights of these
people. This Act was further strengthened with the passage of the SC and ST (Prevention of
Atrocities) Rules, 1995.
Among others, the National Commission for Backward Classes Act, 1993 and the National
Commission for Safai Karamcharis Act, 1993, are the major enactments to provide for a holistic
approach to ameliorate the conditions of the people to ensure the basic human rights to them.
In the face of these legal guarantees, one could naturally expect the demolition of the monolith
growth of the monster of untouchability. However, the result has not been as expected due to the lack
of awareness among the people about these legislations.
Without awareness, neither the victims get relief nor the oppressors stop victimizing the
hapless people. In view of the plethora of legal enactments and the subsequent administrative
measures, a large section of the people sitting in the urban areas tends to assume that the practice of
untouchability has ceased to exist. But the social realities come to the fore when one goes to the grass

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root level of the Indian society. Direct or indirect practice of untouchability, more so in rural areas, can
be encountered in the spheres of entry into hotels, temples and religious processions, drawing
drinking water from tank, tap or other sources, social mixing, economic activities etc. The females of
these castes are often subjected to eve-teasing and the males are normally forced to act as the bonded
labour.

WOMEN AND HUMAN RIGHTS

Women’s human right is a revolutionary notion. This radical renovation of humanity and the
corollary insistence that women’s rights are human rights have profound transformative potential.
The incorporation of women’s perspectives and lives into human rights standards and practices forces
recognition of the dismal failure of counties worldwide to accord women the human dignity and
respect that they deserve simply as human beings. A women’s human rights framework equips women
with a way to define and analyze and articulate their experiences of violence, degradation and
marginality.

HUMAN RIGHTS FRAMEWORK FOR WOMEN

In the late eighties and early nineties, women in diverse countries took up the human rights
framework and began developing the analytic and political tool that together constitute the ideas and
practices of women’s human rights. Taking up the human rights framework has involved a double shift
in thinking about human rights and talking about women’s lives. In other words, it has entailed
examining the human rights framework through a gender perspective and describing women’s lives
through a human rights framework.
In looking at the human rights framework from women’s perspectives, women have shown
how current human rights definitions and practices fail to account for the ways in which already
recognized human rights abuses often affect women differently because of their gender and their
vulnerability. This approach acknowledges the importance of the existing concepts and activities, but
also points out that there are dimensions within these received definitions that are gender specific and
that need to be addressed if the mechanism, programs and the human rights framework itself is to
include and reflect the experiences of the female half of the world’s populations. When people utilize
the human rights framework to articulate the vast array; of human rights abuses that women face,
they bring clarifying analyses and powerful tools to bear on the women’s experiences. This strategy
has been pivotal in efforts to draw attention to human rights that are specific to women and that
heretofore have been seen as women’s rights but not recognized as human rights.

ISSUES IN HUMAN RIGHTS FOR WOMEN

The genealogy of the women’s human rights originates with a need to articulate and
collaborate around broad and similar concerns about the status of women in the civil and political
realm of the women’s life. By the dawning of the early nineties, it was unanimously recognized that
more important and basic, than the issues of status and prestige, are the issues pertaining to the
personal possessions like and body of the women. Their personal possessions were subjected to the
insidious endeavours of the people in general , most profound and universal reflection of which has
seen in the whole range of violence’s against women as well as a negation of the reproductive rights to
the women exclusively.

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In contemporary times, violence against women has emerged as the cardinal issue to epitomize
the human rights of the women. This is so because violence against women takes a dismaying variety
of forms, ranging from domestic abuse and rape to child marriages and female circumcision, all of
which constitute the most fundamental violations of the human rights. The ambit of the violence
against women is amplified in Article 2 of the Declaration on the Elimination of Violence against
women as follows:
1. Physical, sexual and psychological violence that occurs in the family including battering; sexual
abuse of female children in the household; dowry-related violence; marital rape; female genital
mutilation and other traditional practices harmful to women; non-spousal violence; and
violence related to exploitation.
2. Physical, sexual and psychological violence that occurs within the general community
including rape; sexual abuse; sexual harassment and intimidation at work, in educational
institutions and elsewhere; trafficking in women; and forced prostitution; and
3. Physical, sexual and psychological violence perpetrated or condoned by the state, wherever
it occurs.

In addition to these, violence against women consists also of all forms of gender biases in the
administration of justice and of any conflicts arising between the rights of women and the harmful
effects of certain traditional or customary practices, cultural prejudices and religious extremism. Any
comprehensive endeavour to safeguard the women’s human rights must have at its centre the pre-
condition of eliminating all forms of violence against women.

POSITION IN INDIA
The pursuits of women’s emancipation in India may be traced back to the nineteenth century
when various socio-religious reforms organizations persuaded and joined hands with the colonial
rulers to get the prevalent heinous practices pertaining to women declared illegal on the one hand and
ingrain in the social psyche the values of women’s empowerment and well being, on the other. After
independence, the state, backed by the constitutional mandate, emerged as an important sphere for
grasping the contentious issues concerning women. The major determinants of the role of state in
relation to women included constitutional provisions, legislations and the dynamics of public policy,
though the efforts of the non-governmental organizations and international agencies are no
insignificant.
The Constitution of India does not provide for elaborate and specific provisions pertaining to
the issues of women. The general principles embodied under the rubric of the right to equality apply
to women also as any discrimination only on the basis of sex is absolutely forbidden.
Article 15(3) suggests State action in the interest of women and children. Rather specific
provisions regarding women are placed in the Directive Principles of State Policy which includes
maternity benefits, health and moral well-being of the mother and the child, equity provisions like
equal pay for equal work for both men and women and a common civil code. However, even after
more than fifty years of independence, a number of these provisions have remained only in the
constitution.
The deficiency of the constitutional provisions regarding women was sought to be made up
through a string of legislations. Though law has never been considered an adequate means of
transforming social structures, institutions and attitudes, it is still considered an indispensable method
of social engineering. Hence, the state, also under pressure from the women’s organizations, has
brought about several legislations on the women’s issues like dowry prohibition, child marriage
restraint, equal remuneration, the indecent representation of women and pre-natal diagnostic

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techniques etc. Two important pending bills relate to reservation of seats for women in the higher
elected bodies.
Though the constitutional-legal framework affirms and promotes the principles of equity and
equality of women and takes care of their special needs, the practical shape to the doctrinal
pronouncements has been accorded through the successive five –year plans. Till the fifth five-year
plan, the governmental approach was to provide welfare measures for the women.
The sixth plan for the first time shifted this welfares approach to the development one with
the focus being on health, education and employment. The seventh plan broke new grounds with
‘beneficiary–oriented programmes’ which extended direct benefits to women. The eighth plan shifted
the thrust from development to empowerment. The ninth plan committed itself to empowering
women as agents of social change and development to enable them to exercise their rights both within
and outside the home as equal partners with men.
The tenth plan refers to the need to gender sensitize the various organs of the government and
proposes to continue with the strategy of women empowerment as agents of social change and
development with a threefold strategy of-
(i) social empowerment
(ii) economic empowerment with adoption of the concept of Gender Budgeting and Auditing,
and
(iii) gender justice to end gender discrimination and to allow women enjoy freedom on par
with men in all spheres of life.
In the wake of the renewed efforts, originating from both the governmental and non-
governmental quarters aimed at women empowerment came with attitudinal changes in policy and
perspective resulting into legal reforms, remedial measures at the level of public policy and
institutional arrangement along with greater focus on socio-economic problems.
Consequently, the National Commission for Women was set up in 1992 to act as the nodal
agency to look after the general well-being of the women including the protection of women’s
human rights. It has been given a comprehensive mandate to tackle the issues like economic
empowerment through transfer of technology and vocational training and wage equality: political
empowerment through representation in the legislative and decision-making bodies from the grass
roots level to parliament; legal issues such as the need for the review of laws, speedy justice, custodial
justice, redressal of grievances and the need for sensitization of the police and the judiciary; health and
social issues such as tackling female foeticide and infanticide, trafficking in women and children; the
problem of SC and ST women; the plight of the widows, specially in religious places; women victims of
domestic violence and improving the status of women in India, among others.
The performance of the Indian government on the issue of protection and promotion of human
rights of the women betrays the high sounding promises made in policy pronouncements and
programme formulations. The increasing incidents of violence and crime against women bear
testimony to the stark reality of the wide gap between the theory and practice. The way out, definitely,
seems to be a holistic approach to the problem leading to attitudinal change in policy and perspective
which in turn should lead to legal reforms, remedial measures at the level of public policy and
institutional arrangement along with a greater focus on socio-economic problems faced by the
women.

HUMAN RIGHTS OF THE MINORITIES

Minorities are defined as groups of people numerically inferior to the rest of the
population of a state, whose members being citizens of the state possess ethnic, religious or
linguistic characteristics differing from those of the rest of the population and show, if only

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implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or
language.
Thus in Indian context, religious minorities are found in the form of various non-Hindu
religious groups, ethnic minorities are found in the states of Assam West Bengal etc. and linguistic
minorities are found in various states in relative context, i.e. Hindi speaking people being linguistic
minority in the states like Punjab, Jammu and Kashmir as well as various southern states of the
country on the one hand and non-Hindi speaking people become linguistic minority in Hindi-belt
states on the other.
Conceptually, the most important right of members of a minority group is right to equality,
through which it is ascertained that ethnic, religious or linguistic differences cannot form the basis for
discrimination against minorities. At the same time, members of minority groups need special rights to
enable them to preserve and develop their ethnic, religious or linguistic characteristics. In other
words, these people should be entitled to enjoy their own culture, practice their own religion and use
their own language.

Statutory provisions for minorities

For the promotion and protection of the human rights of the minorities, an elaborate provision
has been made in the Constitution of India.
At the very outset, Article 14 of the Constitution declares that “the state shall not deny to any
person equality before law or equal protection of laws within the territory of India”, thereby
preventing discriminatory practices to be followed by the state. Not content with a more general
declaration of the right to equality and fully conscious of the types of discrimination prevalent in the
country, the framers of the constitution went a step further in Article 15 to propound that the state
shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth
or any of them. Further, Article 16, equality of opportunity in matters of public employment has been
ensured. In addition to the various provisions to ensure right to equality, the basic civil and political
rights have been provided to the minorities under Article 19 to 22.
However, the framers of the Constitution were not satisfied with such provisions alone and
under Article 25 to 28, provided for the most generous rights to religious minorities in order to infuse
a sense of complete confidence in them. While Article 25 provides that all persons are equally entitled
to freedom of conscience and the right to freely profess, practice and propagate religion, Article 26
goes a step further to guarantee the freedom to manage the religious affairs and institutions. Article
27 enshrines an additional protection to religious activity by exempting funds appropriated towards
the promotion or maintenance of any particular religion from the payment of taxes. Article 28
prohibits religious instruction in any educational institution wholly maintained out of state funds, to
provide a secular orientation to the polity.
Ethnic and linguistic minorities are bestowed with distinct set of cultural and educational
rights under Articles 29 and 30 of the constitution. Section (1) of Article 29 guarantees the right of
any section of the citizen residing in any part of the country having a distinct language, script or
cultures of its own, to conserve the same. Further, section (2) of the same Article prohibits any
discrimination based only on religion, race, caste, language or any of them in the matter of admission
to state of state-aided educational institutions. Section (1) of Article 30 provides that all minorities,
whether based on religion or language shall have the right to establish and administer educational
institutions of their choice. According to section (2) of the said Article, the state shall not, in granting
aid to educational institutions, discriminate against any educational institutions on the ground that it
is under the management of a minority, whether based on language or religion. Thus, we find that
when provisions under Article 29 and 30 are considered along with other provisions in the chapter
on fundamental rights and elsewhere in the constitution, safeguarding the rights of religious, linguistic
and ethnic minorities, it becomes clear that the purpose of these provisions is to reassure the

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minorities that certain special interests of theirs which they cherish as fundamental to their life, are
safe under the constitution.

LAW PROTECTING CHILDREN’S RIGHTS

The children of our country are the most underprivileged in our society. The poverty in our
country is of such great magnitude that children from underprivileged section of the society are forced
to work resulting in child labour. According to National Sample Survey, the number of child workers
have increased manifold in the society. Further the condition in which a child is forced to work is no
better than that of slavery. The government of India have enacted the following thirteen Acts to
provide legal protection to all children-
1. The Child Marriage Restraints Act, 1929.
2. The Children Act, 1933.
3. The Employment of Children Act, 1938.
4. The Minimum Wages Act, 1948.
5. The Factories Act, 1951.
6. The Plantation Labour Act, 1951.
7. The Indian Factories Act and Mines Act, 1952.
8. The Merchant Shipping Act, 1958.
9. The Apprentices Act, 1961.
10. The Atomic Energy Act, 1962.
11. The Beedi and Cigar Workers (Condition of Employment) Act, 1966.
12. The Shops and Establishments Acts, 1969 (Statewise)
13. The Child Labour (Prohibition and Regulations) Act, 1986.
Of these, the 1986 law is the most important one, wherein the Act lists occupations and
processes in which employment of children is prohibited. Few of the hazardous occupations where
a child cannot be employed are as domestic servants, workers in dhabas, restaurants, hotels,
motels, teashops, resorts, spas or other recreational centres. Further the working hours for a child
are also specified. It states that a child can work to six hours, including an interval of at least one
hour and children are not permitted to work between 7 P.M. to 8 P.M.

7PM to 8A.M
ENFORCEMENT OF HUMAN RIGHT IN INDIA

India has been one of the oldest civilizations in the world having a chequered history of the
existence of some sort of human right precepts and values to secure a dignified and contended life for
the people. Though at a certain point of time in her history a rupture occurred in this rich tradition
resulting in the snatching away of the human rights of few sections of people in the society, the sense
of appreciation for the ideals and values of human rights as the primary foundation stone for the
modern and democratic life for the people remained intact amongst the national leaders of the
country. As a result, even during the course of the freedom struggle, the
national leadership never failed to emphasize the bestowing of basic human rights on all the people
of the country irrespective of any distinction in the form of fundamental rights once the country
becomes independent. Hence, in the post-independence times, the Constitution of India became the
chief instrument for the national leaders to redeem their pledge of securing for the people the basic
human rights through the provisions like the fundamental rights and the directive principles of state
policy, along with the others. Moreover, stipulations were also made with the futuristic vision to

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enable the government to enact law for the constitution of certain bodies and institutions for the
purpose of protecting and promoting the human right in the country.

Human rights laws in India

Conceptually, human rights laws in almost all parts of the world are relatively recent
phenomenon. Given the philosophical roots of the human rights being traced back to the sixteenth
century social contract theory which evolved the idea of natural rights of the people as being
ordained by birth without any positivist intervention on that count, the initial take on human
right considered it to be a notion existing even in the absence of any positivist law being framed on the
subject. However, with the growing complexity of life on the one hand, and varying understanding of
the concept of human rights by various countries and people on the other, sometimes even to the
detriment of the notion of human rights itself, arguments were advanced for the clear-cut stipulations
of the idea of human rights through the means of constitutional and statutory provisions. Following
the lead given by the United Nations mandated Universal Declaration of Human
Rights, 1948, various countries in the world have strived to make elaborate provisions for the
enjoyment of the human rights by their people through the constitution and other statutory
enactments.
The inauguration of a liberal democratic political system in the country after independence
ensured that India becomes one of the foremost countries in the world to have an elaborate system of
human rights laws. The body of human rights laws in the country could be conveniently categorized
into two segments: Constitutional and statutory laws.
The constitutional laws pertaining to the human rights are spelt out in varying measures in the
chapters and provisions dealing with the preamble to the Constitution, the fundamental rights, and the
directive principles of state policy. The statutory laws on human rights are provided for in the form of
various enactments to ensure the social and economic justice to the marginalized sections of the
society like women, children, disabled people, weaker sections of society etc. Important among such
enactments include the Protection of Human Rights Act, 1993, Persons with Disabilities (Equal
Opportunities Protection of Rights and Full Participation) Act, 1995 etc. Apart from these, the
corpus of human rights laws in India also consist of the numerous international
covenants, conventions, treaties signed, ratified and acceded to by the government of
India. Such international legal documents not only include the general documents like the
Universal Declaration of Human Rights but also various target-specific legal frameworks aimed at
protecting the human rights of the specified groups of people like women, children,
disabled, minorities, refugees etc.

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