Category: Fundamental Rights

Homosexuals Too Have Rights – They are not demanding something ADDITIONAL!

Posted in Fundamental RightsTagged , Leave a comment

We often say that there is gender inequality amongst men and women and that’s true. But what about the third gender that has been given a due recognition by Supreme Court of India[1]. This so called third gender is not even accepted by majority of the people in the society, talking about its dignity, rights and so called ‘equality’ is like a fairytale!

Even after getting a legal status conferred by the Apex Court they haven’t been given their due right in many states. Although we come to read and know about some of the transgender like Zara Sheikh[2], Rudrani Chettri[3], Kalki Subramanyam[4], Madhu Kinnar[5], Manabi Bandyopadhyay[6] , Padmini Prakash[7] and 23 other transgender who have been given jobs at Kochi metro who have achieved something but what about rest of such population.

In the case of Suresh Kumar Koushal v. Naz Foundation[8] the Hon’ble Supreme Court reversed the High Court’s judgment that held Section 377 of Indian Penal Code unconstitutional. In this case the Hon’ble Supreme Court quoted the case of R.M.D. Chamarbaugwalla v. The Union of India (UOI)[9] and asserted that the instead of declaring a legislative provision illegal, doctrine of Severability must be applied and valid portion must be separated from the invalid portion. So from the Supreme Court’s judgment on the rights of homosexuals and constitutionality of Section 377 it can be construed that there is a reasonable classification made on intelligible differentia that homosexuals are an exception to it (Section 377 IPC).

Despite having been given rights by Supreme Court, they aren’t getting what they too deserve. Till date it is very normal and regular to see these people begging at traffic lights, at religious places like temples, mosques, etc. Not only this they’ve to face ill-treatment by police authorities and public. This Eunush culture is present in our culture since the ancient times of Lord Rama. And, it was in that era that homosexuals were considered as the agents of GOD and gave blessing to people on pious occasions. But at present times they have to face hatred, abusive treatment, cruelty and sexual harassment[10]. Till November, 2014 thirty seven attacks have were reported against eunuchs in Hyderabad since March. Shockingly there were around 10 deaths, three gang rapes and five acid attacks[11].

The Hon’ble Court has left it on the competent legislature to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General[12].

But this does not end here only!

Despite the verdicts of Supreme Court this community is being harassed, blackmailed and tortured because of their genetic disorder and make them feel ashamed and embarrassed about their identities. This clearly implies that States are not able to comply with the orders of Supreme Court by not being able to providing its citizens their precious fundamental rights.

[1] National legal services authority v. UOI [WRIT PETITIONS (CIVIL) NO.400 OF 2012 & 604 OF 2013]

[2] India’s first transgender HR Professional in a MNC

[3] Delhi-based transgender activist and head of Mitr Trust, opened a modelling agency to help transgender models get work and recognition

[4] activist and author, established Sahodari Foundation that works for the empowerment of transgender persons in India

[5]  she fought mayoral elections in Raigarh, Chhattisgarh as an independent candidate and won

[6]  India’s first transgender principal a year ago

[7]  India’s first transgender TV anchor with a prime time show on a South Indian TV channel

[8] CIVIL APPEAL NO.10972 OF 2013

[9] AIR 1957 SC 628

[10] Jayalakshmi v. State, (2007) 4 MLJ 849

[11] http://www.deccanchronicle.com/141121/nation-current-affairs/article/eunuchs-face-assaults-rapes

[12] Suresh Kumar Koushal Case, supra

ABOUT THE AUTHOR

Picture1

TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.

 

Freedom of Expression vs. Honour: Your rights end where mine begin

Posted in Fundamental RightsTagged , Leave a comment

Let’s share the story of a friend of mine:

She was born in a small and humble home of a little town, but she wanted to be somebody, to succeed in life, so she worked really hard for her dreams. That’s how she was able to go to school, but this wasn´t enough for her. She wanted to go to high school, but in her little town there were none.

Determinate to overcome her limits, she moved to a large city in order to continue with her studies and by the end of her final year she made up her mind: she wanted to be a teacher. This looked almost impossible, considering her economic background. Nevertheless, during those same years she did put in lots of efforts to improve herself and her community.

All those years of hard work were rewarded: her excellence awarded her with a scholarship so she was able to study her dreamed carrier. Years passed and she contributed a lot to the educational community. She even became the Principal of one of the biggest educational institutions of the city. Her humble beginnings were not an excuse for her.

Really inspirational right? But the story does not end here. Many people desired her position[1], and they were capable of doing anything following the famous phrase “end justifies means”. By using their connections, they were able to spread all kinds of infamies and lies about her, which by the magic of the sensationalist press, it was extended like wildfire which damaged her reputation and honour… Really unfair and sad, isn’t it?

There are a lot of rights involved in this story. The problem is how to balance them. On one hand, the Right to Honour and Reputation was damaged. Journalists claim that they have the right to freedom of the press and the one was who actually said something that wasn’t true to damage the good name of the woman, claims the right to freedom of expression. Yes! We all have rights. But there is a principle by which your right ends when other’s rights begin.

The art. 12 of the Universal Declaration of Human Rights, says that “No one shall be subjected… to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”. And the article 19 establishes “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”[2].  As you can see, there is a thin line between those rights.

If you read the websites of international organizations, you will find that they tend to protect more the right to freedom of expression, and they even recommend that “calumny and defamation”[3] should be removed from criminal law. Criminal Law penalties, besides punishing the wrongdoers, have a preventive purpose[4]: to avoid the repetition of the crimes through warning or intimidation[5]. “The object of civil sanction is the redress of wrongs by compelling compensation or restitution, the wrongdoer is not punished”[6]. That’s why there are people against protecting this right only with civil sanctions.

The Declaration of Principles on Freedom of Expression states that: “Protection of reputation should be guaranteed only through civil sanctions, in cases where the offended person is a public official or a public or private person who has engaged voluntarily in matters of public interest…” So if you want to contribute to your country by working in public function or you are involved in matters of public interest, just get ready. People will be able to damage your reputation easily, because civil sanctions are not as intimidating as criminal law penalties.People will tell you to be ready for the attacks and lies others are going to say about you. “It’s always like that”, “that’s how it works” and “you just have to ignore them”; with this phrases people tell you “DO NOT DEFEND YOUR RIGHTS”.

It’s true that a lot of politicians use this juridical figure to persecute journalists who publish acts of corruption that they have carried out[7]. But it must be with accurate information, because Freedom of Expression has its limits. And those limit should be clearly defined.

Freedom of Expression and the right to Honour and Reputation are human rights. They are confronted on many occasions, so mechanisms should be sought both to balance and protect these rights.

[1] Referred to the position of “principal of an educational institution”

[2] United Nations website. Link: http://www.un.org/en/universal-declaration-human-rights/

[3] These two juridical figures are mentioned according to the Paraguayan system, it may be some differences in the denomination or specific characteristics in other countries.

[4]Quoted in: Rivacova y Rivacova, Manual of Function and Application of Penalty, Ed. Depalma 1993, Pág. 18, of the book: Problems of the Penalty, Recife, 1958, Pag. 342

[5]Feuerbach.German jurist of the early nineteenth century. For him, the purpose of imposing a penalty lies in the foundation of the effectiveness of the criminal threat, since without this threat would be ineffective. Quoted in: en http://www.bahaid/lapluma/derecho/revista002/pena.htmream.com

[6] Link: http://www.diffen.com/difference/Civil_Law_vs_Criminal_Law

[7]Referred to politicians.

ABOUT THE AUTHOR

14568028_1189801191081500_887991889626262476_n

ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

Right to Education under Law

Posted in Fundamental Rights, UncategorizedTagged Leave a comment

This article has been written by Neeti Rana. Neeti, a recent graduate of Law College, Uttaranchal University, is a habitual writer and has a penchant for legal research.

Education is a fundamental human right and essential for the exercise of all other human rights. It promotes individual freedom and empowerment ad yields important development benefits.  Yet millions of children and adults remain deprived of educational opportunities, many as a result of poverty. Education is a powerful tool by which economically and socially marginalised adults and children can lift themselves out of poverty and participate fully as citizens.

Education has been neither free nor compulsory. For the state to guarantee education provision through a legislative enactment is a major shift, given a history of provision which has consistently failed disadvantages groups, privileging the interests of minority urban elite. As studies have consistently shown over time, those excluded continue to reflect inequalities within the wider social, economic and political fabric, particularly those of caste, class and gender. Axes of inclusion are broadly predicted around the following occupational and social classification children of the upper castes or from smaller families, or from households that are economically better off or dependent on non-agricultural occupation, with parents who are better educated, or from villages that have better access to schools thus underlining the roles played by social position , economic opportunity and the power exercised by local community leadership in securing state provided resources in education. Cutting right across these axes is the gender gap, which is more or less consistent across social groups.

The gap between discourse and operational framework in all policy efforts in education, and more wide development, has long been cited as a reason for India’s poor performance in securing equitable educational opportunity for all. Despite a range of commitments made in the Indian Constitution to equality, addressing the historical disadvantages faced by certain groups, and universal education, policies on the ground have done little to fulfil the ambitious vision developed at the birth of the modern Indian nation-state. This gap appears in danger of persisting even with the shift to guaranteeing the right to education. In this section, some of the issues raised by the current approach are explored.

To quote Justice PN Bhagwati, Former Chief Justice of India: “The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into a fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being, otherwise there cannot be a healthy growth of the nation.”

Every generation looks up to the next generation with the hope that they build up a nation better than the present. Therefore education which empowers the future generation should always be the main concern for any nation. It is now an undisputed fact that right to education can be realised on a national level only through compulsory education, or better say, through free compulsory primary education. However, due to the widespread poverty and various prejudices in the society, the efforts to develop an educational system in India with full access, equality and quality of educational has not been achieved. The inability to check the dropout rates among the marginalised sections of the population is another cause of worry.

Why Your Husband should not be in Jail: Family Rights of Prisoners

Posted in Fundamental Rights, Marriage and familyTagged Leave a comment

This article is written by Rashmi Pandey. Rashmi is a third-year student and has been the Chief Student Editor of AIL Reporter, Member of Student Research Society, presently pursuing BA LLB at Army Institute of Law, Mohali.

 

 “Family is affected and involved in the prison sentence. It affects everybody close.”

-Anonymous Prisoner[1]

India is a wonderful place. Indeed we keep blaming the system for endless reasons, here’s one more to add. Let’s imagine a family happily living or otherwise, and circumstances change so that the prime bread winner or probably the husband ends up in jail. Let’s have an empathetic journey of the legal rights and tangents which the family or the wife of such prisoner’s face. As per Sec. 56(1) of the Police and Criminal Evidence Act of 1984, a person who has been arrested has the right to inform someone who is likely to take interest in his welfare.

Articles 21 and 22(1) of the Indian Constitution enshrine more such rights wherein it is the duty of the Magistrate to ensure that the arresting policing officer has complied with these rights.[2]  But again since we live in India “and there are perks which will definitely follow” it is only rarely that all these rights which have been guaranteed are properly implemented. A report by the People’s Union for Democratic Rights discusses the actual implementation of rights of inmates in Tihar jail at New Delhi, to receive visitors, among other prison conditions.[3]

The inmates of Tihar Central Jail, Delhi according to the Prison Manual, are allowed to have two interviews (mulaqat) per week in a designated area called the mulaqat jangla, with three visitors permitted in an interview. However, the process of arranging a mulaqat is extremely tedious and cumbersome. Advanced bookings for the same have to be made either by telephone (011-28520202). Moreover, even though the Manual provides for three visitors, in reality, only 1 is allowed for under-trials and 3 for convicts since March 1, 2011, which is often a problem for out-station families.

Furthermore, since March 2011, several restrictions have been imposed on visitation rights. Only the 8-10 names submitted by the prisoner can be a mulaqatee. Visitors have to undergo a strict and long entry-procedure with multiple checkpoints. The jail administration is extremely arbitrary and unresponsive in nature. Inmates are often mistreated and the prison conditions are degrading for any human being.[4]

The State has employed imprisonment of offenders not just as a method of deterrence but also as a tool for retribution. These retributive restrictions are in fact principles of justice as per which what a criminal deserves on account of his personal character and individual conduct poses the limitation on the morality of states for his treatment.

And when you are a wife of one such state villain; of course you have to adjust to the physical absence of your husband and take all responsibilities, there’s a lot more which life will show you. Some wives feel that they themselves have been imprisoned and “put their lives on hold” while waiting for the return of their husbands.[5] Not only are they subjected to stigmatisation,[6] but can also suffer from social isolation, deterioration of other relationships, loss of income and extra burdens of childcare.[7]

Imprisonment of a partner can also cause, among other problems, relationship issues leading to divorce, shifting of homes and medical and health problems due to the constant pressure in the minds of families.

Families and partners are not a homogenous group with respect to issues faced due to imprisonment of family member/spouse. While the extent of effects of imprisonment on the members of a family depends on various factors such as the closeness of the relationship, familial social and support system etc.,[8] the partners almost always experience far greatstigmatisationion from the society and often feel a “transfer of punishment”.[9]

It’s already difficult for a poor, middle class or a lower middle class women to adjust with the economy, society, and ambitions. Problem of husband being imprisoned shatters them within. The legal system which we have created also at the execution stage looks down upon them and hardly realizes their pain.

 

[1] Alison Liebling & Shadd Maruna, The Effects of Imprisonment, 442 (2005).

[2] AIR 1981 SC 746.

[3] Beyond the Prison Gates: A Report on Living Conditions in Tihar Jail, People’s Union for Democratic Rights, New Delhi (September 2011).

[4] Ibid.

[5] Timothy J. Flanagan, Long-Term Imprisonment, Policy, Science and Correctional Practice, 1995.

[6] Ibid at 150.

[7] Supra Note 1at 444.

[8] Supra Note 1 at 445.

[9]B.N. Chattoraj, A Study on Children of Women Prisoners in Indian Jails, National Institute of Criminology and Forensic Sciences, (2000).

.

Rights of Child out of Rape

Posted in Fundamental RightsTagged , Leave a comment

This article is written by Neeti Rana. Neeti is a student of Law College Dehradun, Uttaranchal University.

 

Rape causes difficulties during and after pregnancy, with potential negative consequences for both mother and child. In rape cases, there are two victims one the girl who was raped and second the child born from rape. The newly born child is a victim in the sense that he or she is forced to live a life of shame and stigma without his or her fault.

They are brought in this world destined to suffer because while the father refuses to lend his name to the child, the mother abandons the child for social reasons. Injury to reputation is a violation of the right to live with dignity. The child is termed as a second victim as he or she is the victim of circumstances.

Victim means a person who himself has suffered a loss or injury as a result of crime and requires rehabilitation, and includes his dependent family members. The child becomes the ‘second victim’ in it, as the mother refused to bring the child up in future. And the father refused to have the child. The child definitely suffers the injury of being left in this world to fend for him without any support.

Pregnancy from rape, children who escape death or abandonment are at risk of abuse and neglect. Because the identifies of their fathers are unknown or undocumented, they are referred to as “devils on horseback,” “children of bad memories”, and “the dust of life,” they may be denied the right of citizenship , cultural beliefs and customs surrounding rape may affects child health. Women who are victims of rape and forced pregnancy may not seek prenatal attention due to shame or fear of abandonment which may contribute to

Women who are victims of rape and forced pregnancy may not seek prenatal attention due to shame or fear of abandonment which may contribute to poor health status of the newborn. Children who are born with or develop physical characteristics of the rapists may be associated with the enemy and be particularly vulnerable to mistreatment.

The child born out of rape has the Right to Life with human dignity as he is the victim of the crime which he has not committed. The Right to Life has been explained in Francis Coralie V. Union Territory of India[1] that any act which damages or injuries or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21.  In the same case, Hon’ble P.N. Bhagwati, J. Held as under: “we think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

Allahabad High Court has in a Landmark Judgement ‘A’ through her Father ‘F’
V. State of U.P. Thru Prin. Secy., Med. & Health Ser. and others[2]  stated that a child born out of rape will have inheritance rights over the property of the biological father. The Court also discussed the need for rehabilitation of victims of rape and their children while adjudicating a matter where a minor child of 13 years was raped and could not abort her child due to medical reasons. The court said that child will be treated as an illegitimate child of rape accused and will have inheritance rights to his property unless legally adopted by someone.

Rape is a crime beyond the control of a victim. This tragedy can strike any family. It is not something for which the victim has to be blamed. The whole society will have to learn to manage their response towards a victim without forgetting that tragedy can befall on one’s own head. The whole society should come forward in defence and help the victim of rape. The manner of birth of a person is irrelevant, the rights of inheritance of a person are governed by a Personal Law to which the person is subjected is irrespective of the manner of birth of the person. It is irrelevant as to whether the newly-born child of a rape victim is born out of consensual sex or otherwise.

The victim of rape and the child should be accepted, and not haunted by the society. The society should show their positive response to both the victims.

 

 

[1] (1981) 1 SCC 608

[2] 8210 (M/B) of 2015 A.F.R.

 

Right to Information and Right to Privacy: A Critical Analysis of the Act

Posted in Constitutional Law, Fundamental RightsTagged , , , Leave a comment

The right to know and the right to privacy are two of the most ambiguous legal arena today facing government the court, the public and individuals. The welfare of the society is the primary duty of every civilised state. Right to privacy is not explicitly enumerated as a fundamental right under Part III of the Constitution. But, the Honorable Supreme Court has developed the law as to privacy by spelling it out from ‘Right to Freedom of Speech and Expression’ in article 19(1) (a) and within the ambit of ‘Right to Life’ under Article 21 of the Constitution. The Supreme Court has said, “Privacy is the State of being free from intrusion or disturbance in one’s private life of affairs”.[1] In Mr. X v. Hospital Z the supreme court held that it was open to hospital authorities or the doctor concerned to reveal such information to the person related to the girl whom he intended to marry and she had right to know about the HIV status of the appellant. A three-judge bench of the supreme court held the disclosure of HIV-positive status justified as a girl has right to know, there was no need to for this court to go further and declare in general as to what right and obligation arise in such context as to right to privacy.[2]

An encroachment upon one’s privacy is only shielded if the offender is the state and not a private entity. In R. Rajagopal v. State of Tamil Nadu[3] the Supreme Court held that the right to privacy is a right to be let alone. No one can publish anything concerning the above matters without the consent of the parties, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.

The right to privacy is not, however, absolute; reasonable restriction can be placed thereon in public interest under article 19(5).

The Right to Information Act is a strong weapon in the hands of the media and the press. The restrictions imposed on such right under the Constitution, the Act itself, any other law and by judicial interpretation seem to be reasonable and strike a good balance between people’s right to know and secrecy maintained by the State.[4]

But the question arises regarding how far the Right to Information Act has succeeded in achieving its above-mentioned objective. A review of the practical application of the Right to Information Act makes a revelation of the following tangent to the situation.[5]

Efforts made to generate mass awareness of the RTI Act are lacking.[6]

Misuse of the Act: – The experience of the past years has shown that there are cases wherein frivolous applications are being filed in the name of transparency. The principal objectives for which the RTI Act is being misused are:-

  1. To know the secrets of competitors (third party).
  2. To harass the Public authority or bring disrepute to a public servant with the intention of settling a score.
  3. For promotion of self-interest like a survey or research; tender or other business interest; blackmailing; derailing investigating; service matter- appointment , transfer, promotion, vigilance enquiry, etc.;
  4. It has the potential for being misused for spying activities.[7]
  5. The Act does not have strict penal provisions. The fee charged for information and the manner of payment is not uniform, there is also confusion about the head of accounts to which the application and other fees are to be credited.[8]

More than 75 percent of the citizens are dissatisfied with the quality of information being provided.[9]It is found that the Nodal Departments have not yet published user guides in most of the states.[10]

RTI is indeed a noble idea, yet the context has somehow assumed a new dimension and requires attention so as to fulfill our goals of good governance.

[1]    Krishna Pal Malik, Right to Information (Faridabad: Allahabad Law Agency, 2013)161.

[2]    Nidhi Saini and Shashi Bhushan. “Right to Information Constitutional Aspect”, Nyaya Deep, Vol. X,

(3), (2009).

[3]    AIR (1994) 6 SC632

[4]    Priyanka Jana, “Limitation of the Right to Information Act, 2005”, Global Media Journal, Dec 2010

[5]    Dr. Rajinder Kumar Marwah, “Critical Appraisal of The Right to Information Act, 2005”, Law 

       Journal, Guru Nanak Dev University, Vol. XVII, 2009

[6]    Anshu Jain, A Treatise of The Right to Information Act ( New Delhi: Universal Law Publication, 2014)

177

 [7]   Dr. R.K. Verma, PIO’s Guide To RTI, (New Delhi: Taxman Publication (p) Ltd., 2011) Page no. 549

[8]    Anshu Jain, A Treatise of The Right to Information Act ( New Delhi: Universal Law Publication, 2014)

179.

[9]    Ibid.

[10]   Right to Information Act, retrieved from http://www.ssrn.com visited on 5-09-2016 at 2.45 pm

 

AUTHOR

Rashmi Pandey