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Almost everyday there are chilling
instances of violence, ethnic cleansing, heinous torture, child abuse,
man slaughter and several other human rights violations. Despite the
adoption of the Universal Declaration Human Rights (1948) and special
covenants provided for the rights of children, women and disabled,
crimes continue unhindered and unabated. The soul-searching question
is... 'Has humanity been relinquished?'
In India, various mechanisms such as
the National Human Rights Commission, State Human
Rights Commissions, and Women's Commissions have been constituted
at the Centre and in the states, for upholding human rights causes.
Legislative safeguards i.e. The Constitution of India, which is supreme
a lex (the law of the land) and
multifarious laws such as The Human Rights Act, 1997 are in existence
but in vain. Human rights violations are the order of the day and the
above 'law- enforcement' arsenals fall short of implementation. Rights
are merely enumerated on paper and hence remain a dead letter.
Poverty as a causative:
Poverty is a ruthless task master; it exacts an exorbitant price in
terms of denial of basic human rights i.e. food, shelter, clothing,
education, healthcare etc which in turn constitute basic necessities of
life. An analysis of constitutional and other safeguards becomes
pertinent to gauge the efficacy of the law in relation to the millions
who have no other recourse but the arsenal of justice.
Article 21 is the
Magna Carta of the Constitution of
India. It reads as follows- No person shall be
deprived of his life or personal liberty except according to procedure
established by law.
It is noteworthy to mention that
the fundamental right to life and personal liberty
is inherent and is not conferred upon us by the Constitution.
These are primary personal rights without which civil and political
rights are rendered meaningless.
The Court has held that 'the right to life
includes the right to live with human dignity and all that goes with it,
namely the bare necessities of life such as adequate nutrition clothing
and shelter1 inter alia.
In Bandhua Mukti Morcha, where the
question of bondage and rehabilitation of some laborers was involved,
Bhagwati, J held that the fundamental right to live with human dignity
is congruous with the right to life and derives its life breath from the
Directive Principles of State Policy, and particularly clauses (e) and
(f) of Articles 39,41,42.
Again, in the Olga Tellis case the
court held that the ' Right to livelihood
is included in the right to life' as " no person can live without the
means of living".
However these rights has no meaning to those who are living below the
poverty line (31% of the Indian population lives
below the poverty line). The noble ideals of
Social, Economic and Political justice as
embodied in the Preamble and other parts of the Constitution remain an
unrealized dream for millions of our fellow citizens.
The fact remains that India has the largest population in the world that
goes to bed without any food, the largest population who has no clothes
to wear and the largest number of beggars.
India is not shining on 750 million of its people
who have no basic toilet facilities; on 510 million humans with no
access to essential drugs; on 300 million illiterate adults with no
schooling; on its 60 million destitute and widows without a roof; on
nearly seven million suffering from AIDS and on the largest number of
children suffering from malnutrition. Ironically 50 million tones
of food grains lie idle in the FCI go downs, only to be nibbled at by
rodents. The States have not successfully accomplished the
implementation of mid-day meal schemes directive given by the Supreme
Court in this matter. Death is hence comes as a salvation for these poor
and helpless people who have absolutely no recourse. This is just a
minuscule impact of poverty.
Denial of education
In Unni Krishnan v.State of A.P, the
Supreme Court has recognized a fundamental right to education in the
right to life under Article 21. Taking the aid of Articles 41 and 45 it
has held that ' every child/citizen of this
country has a right to free education until he completes fourteen years
of age.'
It differed from Mohini Jain's case
in the sense that the right to education is subject to the limits of
economic capacity and development of the state. Even after the Unni
Krishnan case improvement in the situation has been frugal.
Consequently, the government enacted the Constitution (86th Amendment)
Act, 2002 by virtue of which Article 21A has been provided for. It reads
as follows- " The State shall provide free and
compulsory education to all children of the age of 6 to 14 years in such
manner as the state may, by law, determine".
The reality however is hard- hitting. The question arises as to the
implementation of this gigantic task. Poverty breeds poverty. The
vicious circle of poverty denies to lakhs of children the right to
education, despite the fundamental right that
children below 14 years of age shall be given access to primary
education. A country's progress depends upon the development of
its populace. Education is an arsenal to achieve the same. However in
our country, widespread illiteracy still continues to persist .the
government does not have adequacy of funds to run its own educational
institutions. Education is undergoing privatization. The resultant is
that schools have become centers for exploitation due to colossal fees
charged and the common man is deterred by the affordability factor.
The relevant reasons are lack of infrastructure, absence of relevant
education, low attendance, high- drop -out rates etc. Even after five
decades of independence, 50% of the children are dropouts. Sex is one of
the significant differentials of illiteracy that is characterized by a
strong patriarchic value system. The level of literacy is about 64% for
males and about 39% for females.
India's failure to achieve universal literacy even after fifty-six years
of independence is shocking. At the present rate, it would take another
50 years to achieve total literacy. Education is the sign of a civilized
society and the lack of it is one of the primary reasons for the
commission of unpardonable crimes and intolerance.
Subjugation
of women
In India women constitute nearly fifty percent of our population. Women
are denied human rights from the cradle to the grave. Infanticide is
rampant in certain parts of the country where the birth of a girl child
is not welcome. Nearly forty-one percent of the women abroad play an
active role in the production process. In India the situation leaves
much to be desired.
Sexual abuse and flesh trade are gnawing evils, which threaten the
existence of women as independent entities.
Dowry is the greatest crime against women. 'Are our daughters and
sisters for sale? Women are virtually sold into the marriage market.
Huge dowries are still demanded even when the girl can supplement the
man's income.
In such a milieu, a woman enjoys no rights because she is a woman.
Rape is a weapon to subjugate women. The woman is safe nowhere. Justice
prides herself on being blind to everything but the truth - yet as far
as rape is concerned, the facts paint a different picture.
In the Mathura Case. - The judgment did not distinguish between consent
and forcible submission. Correspondingly the judgments in
Bhanwari Devi and a few other cases were unjust and in favor of the accused.
In a significant judgment of Vishakha v. State of Rajasthan, the
Supreme Court laid down exhaustive guidelines for preventing sexual
harassment of working women in their place of work until a legislation
is enacted for this purpose.
Bias in the law: Negates effective implementation
# As a whole, the process of law is biased against the victim. If the
victim is a minor, the onus is on the accused to prove his innocence.
But if the victim is a major, it is up to her to prove her charge.
# Also, in rape cases, unless the woman is examined medically within 24
hours, it becomes difficult forensically to prove that rape has
occurred.
# The laws too are discriminatory in nature. According to Section 155
(4) of Indian Evidence Act, "When a man is prosecuted for rape or an
attempt to ravish, it may be shown that the prosecutrix (victim) was of
generally immoral character."
# Section 54 of Indian Evidence Act says, "In criminal proceedings
(including rape) the fact that the accused person has a bad character is
irrelevant, unless evidence has been given (by him) that he has a good
character, in which case it becomes relevant"
# Forced cohabitation, molestations and sexual harassment is the norm.
Justice is rarely meted out to such victims who either do not lodge a
complaint for the fear of a social stigma.
# Moreover the accused gets acquitted due to a poor prosecution, hostile
witnesses and the like. In India the rate of conviction is about 2-3%.
Thousands of widows and elderly people are left to fend for themselves.
Insensitivity, non- action and a lack of desire to come forward are
responsible factors.
'Do we mean to say that are daughters, mothers, sisters have no rights'?
State as the violator of Human rights
According to Mr J.S Verma, the former Chairman of NHRC, a startling
revelation is that " It is often the State which is the violator of
human rights in maximum cases in the country". Paradox |
The
author can be reached at: spiti@legalserviceindia.com
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