FREE AND EQUAL: REFORMS AGENDA FOR HUMAN RIGHTS – By Tanya Jaiswal

All throughout the ages people have been governed by rulers who followed different system and forms of government and used their power and authority to suppress the common people. It was only in 1947 when India got its independence from the British rule and adopted democratic form of government which encouraged India to get its new face. Now even after 70 years of Independence, India still continues to suffer from significant human rights violations, despite framing many laws and policies and promising and making commitments to tackle the problems.

Human Rights in simple sense refers to the certain basic or fundamental rights which are universal for humanity and is entitled to each person of our society irrespective of Caste, creed, colour, race, origin, sex, religion etc. The Principle Objective of human rights for protection of human life and liberty, to preserve the dignity of people, promoting healthy development, maintaining equality etc. In India the violations of human rights is equal to the violations of the democratic principles which is enshrined in the constitution of India. Human rights are no longer the concerned of any particular country and became an international issue. The United Nations has adopted a charter of Human Rights for the respect of people and on 10 th  December 1948, the UN adopted the Universal Declaration of Human Rights for the protection of Human Rights. India was a signatory to the Universal Declaration of Human Rights, but the violations and atrocities are still prevalent. Due to this wide scale violation of human rights like extra-judicial killings, custodial deaths and atrocities by the security force particularly in Kashmir, the Indian Government set up the NHRC (National Human Rights Commission) in 1993. People basic and fundamental rights are denied due to the economic and political interest of politicians, big industrialist and power-drunk people. There are numerous incidents of the violations of human rights and some of them are described below.

Issue1: With the rising crimes, violations, scams and scandals human rights are being violated and taken for granted and in the recent years conditions have become worst and deteriorated in India. Violence against women is increasing at an alarming rate and they are at a high risk of sexual harassment, trafficking, and forced labour including violations of equal participation in political, economic and social life. The circumstances for women rights and their freedom seems to have deteriorated, with not only people committing women rights violations but also powerful politician and police who are easily compromising with the sexual harassment, trafficking, and forced labour including violations of equal participation in political, economic and social life. Recently, supreme (HARMON, 2015) against women have continued unabated despite tough laws enacted after the 2012 gang-rape and murder of a woman in a bus in Delhi. Fast-track courts have been set up but cases have moved slowly, for lack of witnesses and the inability of many families to go through the long legal process. Some victims and their families have ended up being attacked for pursuing cases against powerful men, often local politicians. The killing of the suspects of Hyderabad gang rape case by police drew widespread support in India, where faith in the criminal justice system is low. However, there was also strong criticism of the police for appearing to take the law into their own hands. . Despite the various strong laws and acts framed by the government, women across India still continue to suffer from domestic violence, acid attacks, rape and murder etc. Need legal reform to prevent rapes case by introducing stringent laws such as hanging of rapist in public places, increase death penalty , show no mercy over such criminals etc.

Issues 2: More than 500 students have been injured in India after baton-wielding police charged at them and fired tear gas at two federally-run universities where students were holding anti-citizenship law protests. There is complete violation of human rights of students. Federal law limits the times the police may use force. Law enforcement officers may only use force to protect themselves, other citizens or to protect public order. Police use the right to employ force to protect public order when a citizen simply refuses to cooperate with the police. Indian law defines police brutality as the use of more force than necessary to apprehend or subdue a civilian. “Excessive force” has no precise definition and is determined in a court of law by asking whether more force was used than a “reasonable and prudent law officer would use under the circumstances”.Individual states also have their own laws against police brutality.

Issue 3 :

1.The right to protection from Exploitation: 17 million children in India work as per official estimates. Poor and bonded families often sell their children to contractors who promise lucrative jobs in the cities and the children end up being employed in brothels, hotels and domestic work. Many run away and find a life on the streets. The right to Education: 50% of Indian children aged 6-18 do not go to school Dropout rates increase alarmingly in class III to V, its 50% for boys, 58% for girls.

2.The right to Expression: Every child has a right to express himself freely in whichever way he likes.

3. The right to Information: Every child has a right to know his basic rights and his position in the society. High incidence of illiteracy and ignorance among the deprived and underprivileged children prevents them from having access to information about them and their society.

4.The right to Nutrition: More than 50% of India’s children are malnourished. While one in every five adolescent boys is malnourished, one in every two girls in India is undernourished.

5. The right to Health & Care: 58% of India’s children below the age of 2 years are not fully vaccinated. And 24% of these children do not receive any form of vaccination. Over 60% of children in India are anaemic.

6.The right to protection from Abuse: There are approximately 2 million child commercial sex workers between the age of 5 and 15 years and about 3.3 million between 15 and 18 years. They form 40% of the total population of commercial sex workers in India. 500,000 children are forced into this trade every year.

The Government’s commitment and priority to child protection is critical to the creation of a protective environment for its children. The Government needs to demonstrate this commitment through the acceptance and recognition of problems, formulation of appropriate policy, strong legal frameworks and programming, and allocation of adequate resources to programs. It needs to ensure that mechanisms for child protection are child friendly, functional and in a position to reach children in needs of protection.Some such initiatives taken by the Indian Government towards creating a protective environment for children as per the law are the:-

1. Juvenile Justice (Care and Protection) Act, 2000.
2. The CHILDINE 1098 service in partnership with Integrated Program for street children, signing and ratification of the United Nations Convention on the rights of the child (UNCRC), and
3.Ratification of the Optional Protocols
4.The National Plan of Action, 2005
5.The National Policy for Children, 1974
6. Study on Child Abuse 2007.

Not only this several issues and challenges have occurred and ended with the violations of human rights. It is just because the politicians of our country have got the habit to play with the life of the people. It seems that Government have lost their moral compass and needs to be reminded again that are accountable to the people as well as towards the security of the people. Now given the growing crime nature and extent of violence there is an immediate need to specially address the women issue including the dalit and other marginalized communities issues more strongly. Now the issues of Women empowerment have been taken up as a Human right issue. It is high time that women in our society should be treated at par with men in all the field of our society. In the recent years the government of India under the leadership of Prime Minister Narendra Modi has taken important strides especially with the legal reform with respect to the treatment of women, dalits and various vulnerable groups. Some of the initiatives launched by PM Narendra Modi are “Beti Bachao Beti Padhao”, UJJAWALA– a comprehensive scheme for the prevention of trafficking and Rescue, “Stand-up India” scheme for Women, Scheduled Caste, Scheduled Tribe and many others. Apart from the various schemes, laws, Acts launched by the Government but still in many areas the government continued to fall short, both with respect to legal reform and implementation. Government still needs to pay more attention towards their laws and policies and check whether it is properly carried out. There is a dire need to sensitize the women, children, youth and various other communities of the people to spread about human rights and different ways to break its shackles.

Issues 4: In September, India’s Supreme Court struck down section 377 of India’s penal code, decriminalizing consensual adult same-sex relations. The ruling followed decades of struggle by activists, lawyers, and members of LGBT communities. The court’s decision also has significance internationally, as the Indian law served as a template for similar laws throughout much of the former British empire.

In December, the lower house of parliament passed the Transgender Persons (Protection of Rights) Bill, 2018. Rights groups and a parliamentary committee had criticized an earlier version of the bill for contradicting several provisions laid down in a 2016 Supreme Court ruling. Although the government incorporated several amendments in the revised bill, it failed to adequately protect the community, including transgender people’s right to self-identify.

Reforms needed for creating safe environment for LGBTQ youth as follows:

  • Build strong connections with LGBTQ youth to demonstrate acceptance and keep the lines of communication open. Often, LGBTQ youth feel rejected. It is important for them to know that their families, friends, schools, and communities support them. Accept LBGTQ youth as they are, regardless of how they identify, reveal, or conceal their sexual identity.
  • Protect all youth’s privacy. Be careful not to disclose or discuss sexual identity issues with parents or anyone else, without the young person’s prior permission, unless there is an immediate threat to their safety or wellbeing.
  • Provide interpersonal support to students by providing a safe place to talk about their sexual identity and navigate decisions about disclosing or concealing it with others. Establish a safe environment at school. Schools can send a message that no one should be treated differently because of who they are or are perceived to be. Add sexual orientation and gender identity protection to school anti-discrimination policies.
  • Create Gay-Straight Alliances (GSAs). GSAs help create safer schools. Schools must allow these groups if they have other “non-curricular” clubs or groups. Learn more about the right to form a GSA under the Equal Access Act.
  • Conduct social-emotional learning activities in school to foster peer-relationships and help students develop empathy.

ISSUES 5: Mob violence by extremist Hindu groups affiliated with the ruling BJP against minority communities, especially Muslims, continued throughout the year amid rumors that they traded or killed cows for beef. As of November, there had been 18 such attacks, and eight people killed during the year.

In July, the government in Assam published a draft of the National Register of Citizens, aimed at identifying Indian citizens and legitimate residents following repeated protests and violence over irregular migration from Bangladesh. The potential exclusion of over four million people, many of them Muslims, from the register raised concerns over arbitrary detention and possible statelessness.

Dalits, formerly “untouchables,” continued to be discriminated against in education and in jobs. There was increased violence against Dalits, in part as a reaction to their more organized and vocal demands for social progress and to narrow historical caste differences.

In November, farmers protested against debt and lack of state support for rural communities, and called for establishing rights of women farmers and protecting the land rights of Dalits and tribal communities against forcible acquisition.

In April, nine people were killed in clashes with police after Dalit groups protested across several north Indian states against a Supreme Court ruling to amend the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. In response to a complaint of alleged misuse of the law, the court had ordered that a senior police official should conduct a preliminary inquiry before a case is registered under the law. Following the widespread protests, the parliament passed amendments to the law in August, overturning the Supreme Court order.

In July, police in Ahmedabad city raided an area, home to 20,000 members of the vulnerable and marginalized Chhara tribe, a denotified tribe. According to residents, police allegedly brutally beat up scores of people, damaged property, and filed false cases against many of them.

A January report by a government-appointed committee on denotified tribes—tribes that were labeled as criminal during British colonial rule, a notification repealed after independence—said they were the most marginalized communities, subject to “social stigma, atrocity and exclusion.”

Tribal communities remained vulnerable to displacement because of mining, dams, and other large infrastructure projects.

In September, the Supreme Court upheld the constitutionality of the biometric identification project, Aadhaar, saying the government could make it a requirement for accessing government benefits and filing income tax, but restricted it for other purposes. Rights groups raised concerns that Aadhaar registration requirements had prevented poor and marginalized people from getting essential services that are constitutionally guaranteed, including food and health care.

The committee added that the provisions of Article 6 are mandatory and that “the State party [should] continue to and strengthen its efforts to improve the effectiveness of measures aimed at guaranteeing to all groups of the population, and especially to the members of the Scheduled Castes and Scheduled Tribes, thefull enjoyment of their civil, cultural, economic, political and social rights, as mentioned in article 5 of the Convention.” It recommended that:

  • Special measures be taken by the authorities to prevent acts of discrimination towards persons belonging to the scheduled castes and tribes, and in the case where such acts have been committed, to conduct thorough investigations, to punish those found responsible and provide just and adequate reparation to the victims;
  • A continuing campaign be undertaken to educate the Indian population on human rights, in line with India’s constitution and with universal human rights instruments, including the International Convention on the elimination of all forms of racial discrimination, and aimed at eliminating the institutionalized thinking of the high-caste and low-caste mentality;
  • Legal provisions be adopted to make it “easier for individuals to seek from the courts just and adequate reparation or satisfaction for any damage suffered as a result of acts of racial discrimination, including acts of discrimination based on belonging to caste or a tribe.

Human rights lawyers will be familiar with the framework we use, expressed as ‘respect, protect, fulfil’. It is a way of showing the various obligations on government if they are to fully protect human rights or remedy a breach of human rights. But is a way of showing that there is no one measure, no silver bullet to protecting human rights. It is a much more sophisticated and nuanced endeavour that requires multiple actions, across multiple areas, with deliberative mechanisms in place.

Let’s unpack this.

First, the obligation to respect human rights, in general terms, is for the government to ensure that, in its own actions, it does not breach human rights.

What should they do to achieve this? Some examples we set out in the issues paper include:
That human rights are protected in Australian law and remedies are provided for breaches when they occur that mechanisms exist to enable the participation of affected groups in law and policy making—an Indigenous voice to Parliament fits in this category, as does the principle of free and informed consent so important in the world of disability policies and actions and in relation to policies affecting Indigenous peoples and in the context of approaches to elder abuse that the gender and child’s rights impact of laws and policy is understood.

The obligation to protect human rights goes further than this: It requires action by government to prevent others from breaching human rights. Some examples of what this may involve include:

  • Laws that make discrimination unlawful and provide remedies for breaches  businesses have obligations to respect and protect human rights (eg. human rights due diligence to identify, prevent and account for human rights risks and impacts, including the example of ‘modern slavery’ statements) .
  • Human rights education initiatives build awareness of rights and responsibilities in the community and human rights understandings are woven into school curriculam.

And then the third pillar—the obligation to fulfil human rights—requires positive, proactive steps to fully realise human rights and address inequality. Some examples of actions that this may involve, include:

  • That targeted programs exist to address known inequalities (eg Close the Gap; National frameworks on family violence, child protection, National Disability Insurance Scheme), and proactive planning and measurement frameworks address priority human rights issues (eg national action plan on human rights; national implementation mechanism for Sustainable Development Goals)

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