SASI K.G.
01. Meaning and Concept of Vulnerable and disadvantaged Human Rights of Socially Excluded
01. The Rights of Scheduled Castes (SC) and Scheduled Tribes (ST)
Definition of Scheduled Castes and Scheduled Tribes.
It means those castes and tribes which have been declared by the President’s
order as being Scheduled Castes and Scheduled Tribes. Untouchable castes, as
they were earlier called are declared as ‘Scheduled Castes’. Groups of people
who have been primarily living in forests are declared as ‘Scheduled tribes’.
The constitution declares in several Articles that these sections should be
provided with special protection and special privileges. The aim of such
provisions is to put an end to the hardship caused to them due to
discrimination and exploitation. Several laws have been passed by the
Parliament and State legislatures to protect the rights of the Scheduled Castes
and the Scheduled Tribes.
Article 17 of the Constitution abolishes untouchability
and declares it as punishable by law. Since the age old custom continued even
after independence, the Parliament made a more stringent law in 1989 which is
called The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act.
As per Clause (4) of Article 15 permit’s the State
to make special provisions for the advancement of the Scheduled Castes,
Scheduled Tribes and other Backward Classes in educational and technical
institutions.
Reservations in Public services in made by Article
16(4) for posts or appointments in favour of any backward class of citizens
which is not adequately represented in the Services under the State. However,
if there is only one post in a cadre, reservation cannot be made.
Reservation of seats in Lok Sabha and State
Assemblies is made vide Articles 330, 332 and 334 of the Constitution of India.
Special laws are made to protect the tribal land
which forbids the sale or transfer of land to non-tribals.
Special provisions are laid down in the Fifth and
Sixth Schedules of the Constitution. The Fifth schedule empowers the Governor
to enact special legislation for protecting the Scheduled Tribes from
exploitation by moneylenders, regulating allotment of land and prohibiting or
restricting the transfer of land in the Scheduled Areas. The Sixth Schedule
deals with the administration of Tribal areas in Assam, Meghalaya and Mizoram.
02. Human Rights of Children with special emphasis to Convention on the Rights of the Child 1989
01. Convention on the Rights of the Child, 1989
This was ratified by the Government of India in Dec., 1992
Article 37 of it States that “Parties shall ensure that
(a) No child shall be subjected to torture or
other cruel, inhuman or degrading treatment or punishment. Neither capital
punishment nor life imprisonment without possibility of release shall be
imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her
liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a
child shall be in conformity with the law and shall be used only as a measure
of last resort and for the shortest appropriate period of time.
(c) Every child deprived of liberty shall be
treated with humanity and respect for the inherent dignity of the human person,
and in manner which takes into account the needs of persons of his or her age.
In particular, every child deprived of liberty shall be separated from adults
unless it is considered in the child’s best interest not to do so and shall
have the right to maintain contact with his or her family through
correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her
liberty shall have the right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of the deprivation
of his or her liberty before a court or other competent, independent and
impartial authority, and to a prompt decision on any such action.”
Article 39 States Parties shall take all appropriate measures to promote
physical and psychological recovery and social reintegration of a child victim
of any form of neglect, exploitation, or abuse; torture or any other form of
cruel, inhuman or degrading treatment or punishment or armed conflicts. Such
recovery and reintegration shall take place in an environment which fosters the
health, self-respect and dignity of the child.
Article 40 1. State Parties recognize the right of every child
alleged as, accused of, or recognized as having infringed the penal law to be
treated in a manner consistent with the promotion of the child’s sense of
dignity and worth, which reinforces the child’s respect for the human rights
and fundamental freedoms of others and which takes into account the child’s age
and the desirability of promoting the child’s reintegration and the child’s
assuming a constructive role in society.
2. To this end, and having regard to the
relevant provisions of international instruments, States Parties shall, in
particular, ensure that
(a) No child shall be alleged as, be accused
of, or recognized as having infringed the penal law by reason of acts or
omissions that were not prohibited by national or international law at the time
they were committed;
(b) Every child alleged as or accused of
having infringed the penal law has at least the following guarantees;
(i) To be presumed innocent until proven
guilty according to law;
(ii) To be informed promptly and directly of
the charges against him or her, and, if appropriate, through his or her parents
or legal guardians, and to have legal or other appropriate assistance in the
preparation and presentation of his or her defence;
(iii) To have the matter determined without
delay by a competent, independent and impartial authority or judicial body in a
fair hearing according to law, in the presence of legal or other appropriate
assistance and, unless it is considered not to be in the best interest of the
child, in particular, taking into account his or her age or situation, his or
her parents or legal guardians;
(iv) Not to be compelled to give testimony or
to confess guilt; to examine or have examined adverse witnesses and to obtain
the participation and examination of witnesses on his or her behalf under
conditions of equality;
(v) If considered to have infringed the penal
law, to have this decision and any measures imposed in consequence thereof
reviewed by a higher competent, independent and impartial authority or judicial
body according to law;
(vi) To have the free assistance of an
interpreter, if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully
respected at all stages of the proceedings.
3. State Parties shall seek to promote the
establishment of laws procedures authorities and institutions specifically
applicable to children alleged as, accused of, or recognized as having
infringed the penal law, and, in particular:
(a) The establishment of a minimum age below
which children shall be presumed not to have the capacity to infringe the penal
law.
(b) Whenever appropriate and desirable,
measure for dealing with such children without resorting to judicial
proceedings, providing that human rights and legal safeguard are fully
respected.
4. A variety of dispositions, such as care,
guidance and supervisions orders, counseling, probation, foster care, education
and vocational training programmes and other alternatives took institutional
care, shall be available to ensure that children are dealt with in a manner
appropriate to their well being and proportionate both to their circumstances
and the offence.
Article 41 Nothing in the present Convention shall affect any
provisions which are more conducive to the realization of the rights of the
child and which may be contained in
(a) The law of State Party;
(b) International law in force for that
State.
02. Laws Protecting Children’s Right
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 to work is 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.
03. Human Rights of Indigenous People with special reference to Declaration on the Rights of Indigenous People
Declaration on the
rights of indigenous peoples
The High
Commissioner for Human Rights welcomes the adoption of the United Nations
Declaration on the Rights of Indigenous Peoples by the General Assembly on 13
September 2007, as a triumph for justice and human dignity following more than
two decades of negotiations between governments and indigenous peoples'
representatives.
The UN Declaration
was adopted by a majority of
143 states in favour, 4 votes against (Australia, Canada, New Zealand and the
United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi,
Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine).
The Declaration
establishes a universal framework of minimum standards for the survival,
dignity, well-being and rights of the world's indigenous peoples. The
Declaration addresses both individual and collective rights; cultural rights
and identity; rights to education, health, employment, language, and others. It
outlaws discrimination against indigenous peoples and promotes their full and
effective participation in all matters that concern them. It also ensures their
right to remain distinct and to pursue their own priorities in economic, social
and cultural development. The Declaration explicitly encourages harmonious and
cooperative relations between States and indigenous peoples.
Previous steps:
President of the
General Assembly selects facilitator for the Declaration on the Rights of
Indigenous Peoples.
8th ordinary
session of the Assembly of the African Union:
On 30 January
2007, the Assembly of the Union adopted a decision (Assembly/AU/
Dec. 141 (VIII)) on the UN
Declaration on the rights of indigenous peoples. In its decision, the Assembly
decided to maintain a united position in the negotiations on amending the
Declaration and constructively work alongside other Member States of the United
Nations in finding solution to the concerns of African States, amongst the most
important of which are question about: a) the definition of indigenous peoples;
b) self-determination; c) ownership of land and resources; d) establishment of
distinct political and economic institutions; and e) national and territorial
integrity.
61st session of
the United Nations General Assembly:
On 28 November
2006, the Third Committee of the General Assembly adopted the amendments
proposed by Namibia, on behalf of the Group of African States (A/C.3/61/L.57/Rev.1) to the draft resolution on the Declaration on the
Rights of Indigenous Peoples (L.18/Rev.1) by a vote of 82 in favour, 67 against and 25 abstentions.
By adopting the amendments, the third Committee decided to defer consideration
and action on the Declaration and conclude its considerations before the end of
the GA 61st session.
First session of
the Human Rights Council:
The Human Rights
Council adopted the Declaration on 29 June 2006 by a vote of 30 in favour, 2
against and 12 abstentions.
Significantly, in
Article 3 the UNDRIP recognizes Indigenous peoples’ right to
self-determination, which includes the right “to freely determine their political
status and freely pursue their economic, social and cultural development.”
Article 4 affirms Indigenous peoples’ right “to autonomy or self-government in
matters relating to their internal and local affairs,” and Article 5 protects
their right “to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions.” Article 26 states that “Indigenous
peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired,” and it directs
states to give legal recognition to these territories. The Declaration does not
override the rights of Indigenous peoples contained in their treaties and
agreements with individual states, and it commands these states to observe and
enforce the agreements.
The UNDRIP was
adopted by 144 countries, with 11 abstentions and 4 countries voting against
it. These four countries were Canada, the USA, New Zealand, and Australia.
Since 2009 Australia and New Zealand have reversed their positions and now
support the Declaration, while the United States and Canada have announced that
they will revise their positions.
04. Human Rights of Disabled with special focus on UN Convention on Persons with Disabilities
The Convention’s preamble states
that disability is an evolving concept. Nevertheless, it does reflect a social
model of disability as it clarifies that disability results from the
interaction between persons with impairments and external barriers that hinders
their participation in society (preambular para. (e)).
In this perspective, the
framework reflected in the Convention is built on the understanding that it is
the external environment, and the attitudes that are reflected in its
construction, that plays a central role in creating the condition termed
“disability.”
This contrasts sharply with
the medical model of disability, which is instead built on the concept of the
“broken body”, with disability being the obvious result of a physical, mental
or sensory deficiency of the person. Because of this approach, the notion of
“disability” cannot be rigid but rather depends on the prevailing environment
and varies from one society to the next. While the Convention recognizes
disability as an evolving concept, it clearly endorses the understanding of it
as a social construct, when it states that disability “results from the
interaction between persons with impairments and attitudinal and environmental
barriers that hinders their full and effective participation in society on an
equal basis with others”.
In line with this
understanding, the Convention does not provide a closed definition of who persons
with disabilities are, but states that they “include” those who have long-term
physical, mental, intellectual or sensory impairments which in interaction with
various barriers may hinder their full and effective participation in society
on an equal basis with others (art. 1, purpose).
Some important elements to
consider are:
(a) Evolving v. fixed concept.
The Convention recognizes that “disability” is an evolving concept resulting
from attitudinal and environmental barriers. Consequently, the notion of
“disability” is not rigid and can be adapted to the prevailing environment in a
particular society (the focus will be on the type of attitudinal and
environmental barriers present in those societies and ways to overcome them).
(b) Disability not as a
medical problem but as an interaction between an impairment and the surrounding
environment. The focus of the Convention is not on disability as a medical
problem; for the Convention, persons become disabled when they clash with an
unwelcoming or inaccessible environment. Persons with disabilities do not
require to be “fixed” before accessing an environment (society); it is instead
the environment that needs to be uniformly open to all its members. It does so
by dismantling attitudinal and environmental barriers so that everyone can
actively participate and enjoy the full range of rights.
(c) The Convention includes
all disabilities. The Convention does
not restrict coverage to particular persons; rather, it identifies persons with
long-term physical, mental, intellectual and sensory disabilities as its
beneficiaries. The reference to “include” in article 1 could therefore extend
the application of the Convention to all persons with disabilities, e.g., those
with short-term disabilities or persons who are perceived to be part of such
groups.
(d) Categorizing barriers
rather than human beings.
Categorizing a person can be
the first step towards excluding that person and violating his or her inherent
dignity. The Convention does not preclude the use of definitions in national
legislation; definitions might be particularly necessary in some sectors, such
as employment or social security. What is important is that definitions informing
policies and laws reflect the social model of disability where the challenge
facing a person with a disability is measured in terms of the existing barriers
and not on the category or percentage of the impairment. The explicit reference
to barriers, external to the subject, as constituting factors of disability represents
an important step away from notions that equated disability with functional
limitations.
05. United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
Societies throughout the world
enjoy ethnic, linguistic and religious diversity. Ending discrimination against
minorities requires us to protect and embrace diversity through the promotion
and implementation of human rights standards. UN Member States took a major step in this
direction in 1992 when they unanimously adopted the United Nations Declaration
on the Rights of Persons belonging to National or Ethnic, Religious and
Linguistic Minorities.
The Declaration sets essential
standards to ensure the rights of persons belonging to minorities and as such
is a key reference for United Nations work. It offers guidance to States as
they seek to manage diversity and ensure non-discrimination, and for minorities
themselves, as they strive to achieve equality and participation. Some Articles
of the Declaration are reproduced below.
Article 1
1. States shall
protect the existence and the national or ethnic, cultural, religious and
linguistic identity of minorities within their respective territories and shall
encourage conditions for the promotion of that identity.
2. States shall adopt appropriate legislative
and other measures to achieve those ends.
Article 2
1. Persons belonging to national or ethnic,
religious and linguistic minorities (hereinafter referred to as persons
belonging to minorities) have the right to enjoy their own culture, to profess
and practise their own religion, and to use their own language, in private and
in public, freely and without interference or any form of discrimination.
2. Persons
belonging to minorities have the right to participate effectively in cultural,
religious, social, economic and public life.
3. Persons belonging to minorities have the
right to participate effectively in decisions on the national and, where
appropriate, regional level concerning the minority to which they belong or the
regions in which they live, in a manner not incompatible with national
legislation.
4. Persons belonging to minorities have the
right to establish and maintain their own associations.
5. Persons belonging to minorities have the
right to establish and maintain, without any discrimination, free and peaceful
contacts with other members of their group and with persons belonging to other
minorities, as well as contacts across frontiers with citizens of other States
to whom they are related by national or ethnic, religious or linguistic ties.
Article 3
1. Persons belonging to minorities may
exercise their rights, including those set forth in the present Declaration,
individually as well as in community with other members of their group, without
any discrimination.
2. No disadvantage shall result for any person
belonging to a minority as the consequence of the exercise or non-exercise of
the rights set forth in the present Declaration.
Article 4
1. States shall take measures where required
to ensure that persons belonging to minorities may exercise fully and
effectively all their human rights and fundamental freedoms without any
discrimination and in full equality before the law.
2. States shall take measures to create
favourable conditions to enable persons belonging to minorities to express
their characteristics and to develop their culture, language, religion,
traditions and customs, except where specific practices are in violation of
national law and contrary to international standards.
3. States should take appropriate measures so
that, wherever possible, persons belonging to minorities may have adequate
opportunities to learn their mother tongue or to have instruction in their
mother tongue.
4. States should, where appropriate, take
measures in the field of education, in order to encourage knowledge of the
history, traditions, language and culture of the minorities existing within
their territory. Persons belonging to minorities should have adequate
opportunities to gain knowledge of the society as a whole.
5. States should consider appropriate measures
so that persons belonging to minorities may participate fully in the economic
progress and development in their country.
Article 5
1. National policies and programmes shall be
planned and implemented with due regard for the legitimate interests of persons
belonging to minorities.
2. Programmes of
cooperation and assistance among States should be planned and implemented with
due regard for the legitimate interests of persons belonging to minorities.
Article 6
States should
cooperate on questions relating to persons belonging to minorities, inter alia,
exchanging information and experiences, in order to promote mutual
understanding and confidence.
Article 7
States should cooperate in order to promote respect for
the rights set forth in the present Declaration.
Article 8
1. Nothing in the present Declaration shall
prevent the fulfilment of international obligations of States in relation to
persons belonging to minorities. In
particular, States shall fulfil in good faith the obligations and commitments
they have assumed under international treaties and agreements to which they are
parties.
2. The exercise of the rights set forth in the
present Declaration shall not prejudice the enjoyment by all persons of
universally recognized human rights and fundamental freedoms.
3. Measures taken by States to ensure the
effective enjoyment of the rights set forth in the present Declaration shall
not prima facie be considered contrary to the principle of equality contained
in the Universal Declaration of Human Rights.
4. Nothing in the present Declaration may be
construed as permitting any activity contrary to the purposes and principles of
the United Nations, including sovereign equality, territorial integrity and
political independence of States.
Article 9
The specialized
agencies and other organizations of the United Nations system shall contribute
to the full realization of the rights and principles set forth in the present
Declaration, within their respective fields of competence.
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