January 22, 2022

Human Rights: Rights of Women, Children, Old and People with Disability

human rights

Introduction

A society is a complex set of individuals that together gives rise to a complex societal structure and what governs this complex set is a legal system. A legal system is what keeps a society intact and sane. However, it is quite easy to say that laws are meant to protect everyone and is a step towards attaining the concept of a utopian society. As the reality plays out, the practice of these laws lays in quite stark contrast with the legal context as in reality these laws get mended and bent along the way as they tend to serve just a particular section of the society. Antonio Gramsci had once said, “the law is rather an expression of the ruling class, which imposes on its raison d’etre and expansion.” And hence, “The greatest function of law is to presuppose that insofar as all citizens can become members of the ruling class.”

However, despite this ideology connoting that laws are meant only for the ‘ruling class’ which infers that someone over the course gets to be dominated at and hence, it is not only problematic but is full of folly dichotomy being used to describe the essence of the legal system. Sadly, it seems this kind of ideology i.e. the feeling of entitlement still prevails in the society’s ‘ruling class’. This is the reason that despite so many years of progressions and advancements made, there are marginalized communities in the society that still have to take the help of legal framework to ‘provide’ them with certain rights rather than their birth ensuring that they are guaranteed to live life with basic human dignity.

When one tries to analyze the laws that ultimately frame the social order, they are forced to question their ultimate purpose, whether they are meant to be applied to everyone, or are they just a medium to drive a specific oriented human behavior in making the society work. The question might as well go under various debates or different ideological perceptions but it draws a bottom line that indubitably the laws are what govern the society’s functioning and help in ensuring the survival of society.

It is the law that ultimately becomes the ideological bearer for the society, a tool for bringing radical change, and a messiah for the marginalized. And hence, several discriminated groups have throughout history demanded their right which the society deemed fit to diverge from and arbitrarily snatch and tie them to the thraldom slavery, discrimination and submission. It has then always been the institution of the court which has stood up and acted to make the woman equal to that of man, disabled to that of the able, child to that of the mature, elderly to that of the young.

Rights of Women

 The ’70s was the D-time which finally witnessed feminist campaigns in India. It finally saw the origin of seeking reformation of their long lost human dignity by knocking the legal doors. Though the movement didn’t gain much cognizance or came under public scrutiny, the shocking incidents that happened across the country paved the way for the people to realize the heinous atrocities that were faced by the women.

The Mathura case where the gendered language made the victim itself the culprit, the gravity of sexual violence during the Gujrat riots, the Rupan Deol Baja case where a ‘seemingly’ small incident made the national media protect the culprit are some of the cases which are hard to forget and has till now served as a reminder that sexual violence can occur anywhere and the definition of a victim can be changed through so ‘moral’ or ‘contrary to human behavior’ and ultimately who ‘is not worthy’ to get arrested gets easily mended on what suits the majoritarian’s conscious.

Patriarchy has been so deeply rooted that it just not restricts itself to grave sexual violence, but also family structures, and many a time the courts themselves have upheld the given status of women in society. E.g. Recently, a session court recently granted anticipatory bail to a Mumbai couple accused of mistreating their daughter-in-law, saying taunting by in-laws is something that every family witnesses as part of the “wear and tear” of married life.[1]

 It goes unsaid this judgment further propagates domestic violence and hereby refuses to give importance to mental health. Alongside domestic violence and sexual offense, there exists a gender pay gap, lack of representation, and hence, rights have what brought to some extent an ideological change and thereby are privy in ensuring that they get ‘privileged’ enough to live life with dignity and independently. Following are some of the essential rights which brought a positive wave of transformation

  • Right to a safe environment: Bhanwari Devi, a social reformist, as part of her job attempted to prevent child marriage but that raised a question over the domination of the bearers of patriarchy and as a result, she was gang-raped.
    The court in this infamous Vishaka case[2] observed that the crime was a violation of art. 14,19 and 21. Relying on CEDAW,( The Convention on the Elimination of all Forms of Discrimination Against Women) an international instrument to which India is a signatory, the court laid down the historic Vishaka Guidelines. These guidelines were later converted verbatim into The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013[3]

  • Right to equal pay: The court in Randhir Singh v Union of India[4] constitutionalized article 39-d saying “that there is equal pay for equal work for both men and women”.[5]
  • Right to bodily integrity: The apex court through Suchita Srivastava v Chandigarh Administration[6] brought in a new sphere to Article 21 of the constitution as it introduced the right to make reproductive choices on whether the woman wants to go ahead with her pregnancy or abort her fetus.
  • Right to the custody of minors: Through the supreme court judgment in Roxann Sharma Vs Arun Sharma[7], the court helped in establishing the notion that the mother is a natural guardian and brought an end to the bitter legal issues faced in getting custody of their children.
  • Right to marry or live with anyone of choice: The court through its landmark judgment in Lata Singh vs State of Uttar Pradesh finally brought an end to the question of so “honor killing” over inter-caste/ inter-religion marriage and validated a woman’s personal freedom to choose who she wants to marry or live with.
  • Property right: The apex court, in its 121-page judgment in Vineeta Sharma v Rakesh Sharma[8]overturned its prior judgment and held that daughters and sons have equal coparcenary rights in a Hindu undivided family and marital status of daughters in the future shall not affect its viability.
  • Right to a reservation in Panchayat: Representation becomes vital for making demands heard especially when there has been a history of suppression and the others deciding what’s good for the other rather than asking them, Article 40 of the constitution quite rightfully reserves one-third of seats for women in the panchayat.

Rights of children

It is often said that children are the face of god because they are filled with innocence which humans with age seem to forget as they get eloped by the greed that the evil side of the materialistic world provides. Maybe that is the reason that yet another community sees itself tied in a vulnerable position. Whether it’s making them get married to uphold marriage as a social-religious affair, or them facing exploitation either sexually or making them work under excruciating conditions. To protect the very innocence that the period of childhood offers which ultimately helps in shaping the future of our country, these rights become a guiding light for the public authorities or the concerned guardians/ institutions. And courts through their intervention have safeguarded them from the evil clutches of the ugly side of the human race.

  • Right to education: The Supreme court in the case of Mohini Jain[9] and Unnikrishnan vs State of Andhra Pradesh[10] ruled that the right to education is a fundamental right that flows from the Right to life in Article 21 under Indian Constitution and hence later the benchmark 86th amendment to the constitution in 2002 was made under article 21 A reading “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”
  • Right to a safe environment in schools: The court in Avinash Mehrotra[11] further interpreted the right to education amendment and included that all children have the right to learn in a safe environment.
  • Right against exploitation: Through article 24 of the constitution, the article strictly prohibits the employment of children under 14 years of age in factories and any hazardous processes which through further interpretation and amendment include domestic, hotel, and restaurant work.
  • Right to minimum living with human dignity: the court in VikramDeo Singh Tomar v State of Bihar took cognizance of the pitiable conditions prevailing in care homes maintained by the State of Bihar for women and children and has directed the State to improve matters in these homes and provide at least the minimum living conditions ensuring human dignity[12].

Further the Draft National Policy and Charter for Children, 2001 provides several other rights like :

  • Right to Survival : (Article 1 )
  • Right to health and nutrition (article 2 &3)
  • Right to a Standard of Living (Article 4)
  • Right to Play and Leisure (Article 5)  
  • Right to Protection 
  • Right to participation: According to the UN Convention on Child Rights, Children have the right to participate in decision making and due weight should be given to their opinions, according to their opinions, age, and maturity[13].

Rights of senior citizens

It is quite ironic that the country that has taught generations to respect elders at all stages faces an all-time exuberant threat over their question of survival. With the growing change in dynamics of the family structure i.e. the growing no. of nuclear families, it has come to light the lack of institutional medical system or community care schemes to support the elderly in India. This particular age community faces no. of problematic situations like financial stress, emotional care, emergency in health problems, legal disputes, etc. The marginalization of this community is a cause of grave concern as it has led to social isolation and instead of living a quality life, they have to undergo the everyday struggle of battling loneliness, isolation, mental health well as physical health problems and making their ends meet. Thereby legal sanctity seems to be their only relief and getting their community acknowledged.

  • Right to live with dignity: The Uttarakhand high court two-judge bench laid down several mandatory directions to be abused by the state through the Senior Citizen Welfare Organization & another v. State of Uttarakhand & Anr[14]. Where it has been laid down that It is the duty cast upon the State Government to protect the life, liberty, and property including dignity and decency of senior citizens. They cannot be permitted to be left unattended in the twilight of their lives. Ours is a welfare and socialist state and it is expected that every senior citizen should live in a dignified manner with the assistance to be provided by the State Government[15] along with the establishment and maintenance of old age homes.
  • Right over immovable property and eviction of abusive children: The high court of Chattisgarh in Pramod Ranjankar & Anr. v. Arunashankar & ors[16] held while allowing the Petitioner’s interim application for eviction opined that the anxiety to stop the right of the abuse of senior citizen is to be made effective as otherwise, it would be a symbolic collapse of the legal system by not responding to the request or by adhering to the dummy mode by Courts.[17] Whereas the Apex court in Sunny Paul and another v state NCT of Delhi[18] has already held over the senior citizen’s right over immovable property.
  • Right to the maintenance of old widows: The court through Narayanarao Ramachandra Pant V. Ramabai[19] identified the need and hence laid down the right to maintenance of old widows
  • Right to maintenance: The court altered the Hindu family through Kirtikant D. Vadodaria v. the State of Gujarat[20] and set a benchmark that irrespective of being a son or a daughter, old and infirm parents are entitled to maintenance, The only fallback was that it was limited only Hindu family structure.

Rights of People with Disability

The average employment rate of people with disabilities is 0.28 percent in the private sector and 0.54 percent in the public sector. A recent WHO report showed that 87 percent of persons with disabilities in India worked in the informal sector[21]

 Additionally, children with disabilities are 3.7 times more likely than non-disabled children to be victims of any sort of violence, 3.6 times more likely to be victims of physical violence, and 2.9 times more likely to be victims of sexual violence. Children with mental or intellectual impairments appear to be among the most vulnerable, with 4.6 times the risk of sexual violence than their non-disabled peers. Whereas violence against adults with disabilities found that overall they are 1.5 times more likely to be a victim of violence than those without a disability, while those with mental health conditions are at nearly four times the risk of experiencing violence.[22] Thereby being the biggest democracy in the world, it is imperative for the govt. to consider their needs and provide rights from which the society drifted away.

  • Right against discrimination of disability: The court through Deaf Employees Welfare Association v Union of India[23] put an end to the system which through its analysis inferred one disability to cause more hamper in daily functioning and held that deaf and mute people should be equally given transportation allowances with that of people with blind and orthopedically handicapped employees of the government.[24]
  • Right to reservation: The court through Government of India v Ravi Prakash Gupta [25]held “It is only logical that, as provided in section 32 of the aforesaid Act, posts have to be identified for reservation for Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate government to make appointments in every establishment.” [26]
  • Furthermore, through  Disabled Rights group v Union Of India,[27] the Court directed all educational institutions run or aided by the Government to comply with their obligation to reserve 5% seats for the disabled and directed them to report their compliance with the same to authorities set up under the Act. [28]

Conclusion

Despite providing rights that have the sole purpose to safeguard the interests of women, children, the elderly, and people with disabilities, the reality begs to differ from the legal context. They have been overlooked, for long they have been looked down upon, for long they have struggled to get recognized and survive with basic human dignity. But no more. There needs to be an end to this system of people matching certain criteria to be approved and finally getting them conferred with a right to sound life. While there may be many rights introduced and brought about, the oppressive cycle continues to go on after so many years of fighting their way just to be heard. There needs to be a proliferation of legal awareness among these groups, the rights that they are entitled to.

The government needs to create a robust legal system, they need to fund NGOs and empower them to take up drives and touch even the remote places of the country. Though this decentralized way of delegating responsibilities is a sound mechanism to expand the reach, the government cannot simply do away with the responsibility that they owe to the people. We boast about unity in diversity but are we truly pluralistic when these many marginalized communities face such exuberant situations? It’s time that the government and the institution of eminence- the supreme court, take an active role to vanguard these communities.

For more notes on Human Rights, Click Here.

For law notes, Click Here.


[1] Phadke, Manasi, et al. “Sarcasm, Taunting by in-Laws Is Wear and Tear of Married Life, Mumbai Judge Observes.” ThePrint, 31 Dec. 2020, theprint.in/judiciary/sarcasm-taunting-by-in-laws-is-wear-and-tear-of-married-life-mumbai-judge-observes/576988.

[2] AIR 1997 SUPREME COURT 3011

[3] Singh, Shreya Shree, and Author: Shreya Shree SinghAmity Law School. “Landmark Judgements On Gender Equality: The Practical Reality.” Legal Bites – Law And Beyond, 8 Dec. 2020, www.legalbites.in/landmark-judgements-on-gender-equality/.

[4] 1982 AIR 879

[5] Central Government Act Article 39(d) in The Constitution Of India 1949

[6] (2009) 14 SCR 989

[7] 2015 8 SCC 318

[8] Civil Appeal 32601/2018

[9] 1992 AIR 1858

[10] 1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290

[11] Avinash Mehrotra v Union of India (2009) 6 SCC 398

[12]“CHILD RIGHTS IN INDIA: AN ACCOUNT OF LANDMARK DECISIONS AND REGULATIONS.” Racolb Legal, 2018, racolblegal.com/child-rights-in-india-an-account-of-landmark-decisions-and-regulations/.

[13] DR. PRATEEP ROY, SITUATION OF CHILDREN AND CHILD RIGHTS IN INDIA, A Desk Review (Butterflies), 2015

[14] Writ Petition (PIL) No. 52 of 2013

[15] Sharma, Satish. “Satish Sharma.” Vakilno1com, 29 Oct. 2018, www.vakilno1.com/legal-news/judgments-on-welfare-of-senior-citizens.html.

[16] 2018 SCC OnLine Chh 548

[17] Id.

[18] 2017 SCC OnLine Del 7451

[19] ILR (1879) 3 Bom 415

[20] 1996) 4 SCC 479

[21]“Employment.” Employment | National Centre for Promotion of Employment for Disabled People, www.ncpedp.org/Employment?textsize=normal#:~:text=The%20average%20employment%20rate%20of,worked%20in%20the%20informal%20sector.

[22] “Violence against Adults and Children with Disabilities.” World Health Organization, World Health Organization, 11 July 2012, www.who.int/disabilities/violence/en/.

[23] Civil Petition 107 of 2011, decided on December 12, 2013

[24] https://cis-india.org/accessibility/blog/summary-of-judgments-on-disability-rights#fr1

[25] (2010) 7 SCC 626

[26] Id at Para 16

[27] WRIT PETITION (CIVIL) NO. 292 OF 2006

[28] Name. “Through Two Progressive Rulings, Indian Supreme Court Bolsters Rights of the Disabled.” OHRH, 21 Feb. 2018, ohrh.law.ox.ac.uk/through-two-progressive-rulings-indian-supreme-court-bolsters-rights-of-the-disabled/.


Author Details: Sakshi Kothari

Law Library LawBhoomi

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