Posted in Fundamental Rights, Uncategorized

Right to Education under Law

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.

Posted in Fundamental Rights, Marriage and family

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

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).

.

Posted in Fundamental Rights

Rights of Child out of Rape

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.

 

Posted in Constitutional Law, Fundamental Rights

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

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

Posted in Constitution of India, Fundamental Rights, Personal Laws

Constitutional Scrutiny of Personal Laws

Constitution is the incomparable and central law of our nation is not only an archive constituting and constraining the Government, however, an epitome of the qualities and ethics of a democratic nation. It promises extraordinary security for the religious and social minorities present in the nation. Be that as it may, inside each of these groups there exist unfair practices that quandary individuals from that group. For instance, women and individuals from a lower caste are denied from entering certain Hindu sanctuaries. In addition Muslim men appreciate the privilege to divorce their wife by the method for “triple talak”, i.e. by only expressing “talak” thrice whereas Muslim women has no such right to confer. Muslim Personal law provides that Muslim men can have up to four spouses (however, they are committed to treating everyone of their wives similarly), though there is embargo restricting the number of husbands Muslim women should have.

At the point when there are two provisions, which are in apparent conflict with each other, they ought to be deciphered such that impact can be given to both and that construction which renders both of them out of inoperative and futile ought not to be received aside from in the final resort.

The subject of justiciability of Personal laws has drawn significant contemporary consideration in the light of Ms Shabnam Hashmi’s PIL thought of the Supreme Court testing the foreswearing of the right to legacy to inheritance to a child adopted by a Muslim guardian. The bench, held that Muslim Personal law is uncodified law and has neither limited the Muslim not to embrace a deserted, surrendered child nor forced to adopt one.

In the recent case, Dr Noorjehan Safia Niaz v. Condition of Maharashtra, the Bombay High Court lifts the prohibition on the Muslim women to enter the Haji Ali Daragh. A division bench of Justices V M Kanade and Revati Mohite Dere held that the prohibition was violative of the Fundamental Rights of the Petitioners as provided under Article 14 (Equality before law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them) and Article 25 (Freedom of conscience and free profession, practice and propagation of religion : Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion).

There is nothing in any of the verses in Quran which demonstrate that entry into a dargah/mosque, is prohibited. It cannot be said that the preclusion is a crucial and vital piece of Islam and essential to take after the religious belief, and taking without end that part of the practice would bring about a basic change in the character of that religion or its belief. The Haji Ali Dargah Trust is a public beneficent trust, open for all individuals everywhere throughout the world. Thus, cannot legitimise its choice exclusively taking into account a misreading of Article 26 (Freedom to manage religious affairs). The trust is dependably at liberty to find a way to counteract lewd behaviour against the women, not by banning their entrance in the sanctum sanctorum, however by making successful strides and arrangements for their well-being and security, as by having separate queues for men and ladies, as was done prior. Advocate Shoaib Memon, presented the case on the behalf of respondent, contended that Islam demoralises free blending amongst men and ladies and that the aim of the confinement is to keep this collaboration at an unobtrusive level which can also taken care of without the discriminatory provision of the Charitable Trust.

Article 13 of the Indian Constitution- Judicial Review says that any “law” that abuses a basic right (ensured by Part III of the Constitution) is void. This provision applies to both pre-Constitutional and post-Constitutional. The expression “law” “incorporates any statute, request, bye-law, principle, direction, warning, custom or notification having in the domain of India the power of law”. The fundamental reason of the contention consequently was that Muslim Personal law was void as it disregarded the privilege to uniformity. The Bombay High Court dismisses the prohibition in light of the fact that Muslim Personal laws void as it disregarded the privilege to uniformity. The forefathers of the Constitution had intended to get rid of the biased Personal laws straightaway. The presence of Article 44 infers that the drafters put upon the Parliament the onus of destroying such prejudicial religious practices by instituting a Uniform Civil Code.

 

AUTHOR

YashKriti Ratan

Posted in Constitution of India, Fundamental Rights

Right to move Supreme Court: A fundamental right

The Indian Constitution provides some fundamental rights to all persons under Part III of the Indian Constitution. These fundamental rights are available to all the Indian citizens. Some of these fundamental rights are also available to non-citizens such as Right to Life and Personal Liberty under Art. 21. Unlike the Directive Principle of State Policy, Fundamental Rights are enforceable in nature. An individual can always enforce his Fundamental Rights against the state. But in certain cases he can also enforce them against private institutions or individual, for example right to Abolition of Untouchability under Art. 17 is available against everyone. Under the Art. 32 of Indian Constitution, every individual have a right to move Supreme Court to enforce his or her Fundamental Rights. The Supreme Court is empowered to issue certain writs to enforce the Fundamental Rights. Art. 32(2) of Indian Constitution states:

“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”

Writs are orders or directions which can be issued either by the High Courts (under Article 226) or by the Supreme Courts (under Article 32). This article will be dealing only with the writs issued by the Supreme Court under Article 32. The Supreme Court can issue five different types of writs which are discussed below:

  • Habeas Corpus

Habeas Corpus is a Latin phrase which literally means ‘you may have the body’. The Supreme Court can issue this writ if a person is arrested or detained without a lawful justification.  When a person is arrested he has a right to know about the grounds of his arrest and he must be produced before the nearest Magistrate within 24 hours of his arrest excluding the time which is necessary to reach to such magistrate. If he was not produced before the Magistrate within such time, the Supreme Court can issue the writ of Habeas Corpus to free him.

  • Mandamus

Mandamus means ‘we command’. The Supreme Court can issue the writ of Mandamus if a government authority is not enforcing the fundamental rights of the individual. The Supreme Court can also issue this writ when a public authority entrusted with some work is not doing the given work properly. Generally the writ of Mandamus is issued against the executive in order to ask or order them to work in accordance with the mandates of the legislature. The court can issue continuing Mandamus if earlier Mandamus is become futile.

  • Prohibition

When an inferior court exceeds its jurisdiction while deciding a particular case, the writ of Prohibition can be issued by the Supreme Court to prohibit the inferior court from exceeding its jurisdiction. Writ of Prohibition enables the Supreme Court to act as supervisor over the lower courts.

  • Quo Warranto

The writ of Quo Warranto means ‘by what authority’. When a public authority act in a certain manner which is not authorized or when an individual occupy a public office without a proper authority the writ of Quo Warranto can be issued to restrain such public office from acting in such manner or the individual from occupying that position.

  • Certiorari

Certiorari can be issued by the Supreme Court to the inferior courts to transfer a case from the inferior court to superior courts if the Supreme Court thinks that the lower court has committed some mistakes in deciding the case or if the inferior court is incompetent to decide on a particular matter.

It is not necessary that in order to issue the writs there should be the infringement of the Fundamental Rights, mere threat of infringement of Fundamental Rights can also result in issuing of the writs. The Court has discretion to deny the remedy under Art. 32 if there is an unreasonable delay in filing the writ petition. An individual can file the writ petition only for the Fundamental Rights, he or she cannot file a writ petition for the enforcement of Directive Principle of State Policy or any Government policy. When a Court issues writs, non-compliance with those writs can be considered as the contempt of the court and suitable punishment can be imposed. Thus the right to move the Supreme Court to enforce one’s Fundamental Rights is an important right which enables the general public to keep checks and balances on the power of the Government Authorities and ensure good governance.

 

AUTHOR

Vishwanath Rajput