Human Rights – The Law Blog

Right against Sexual Discrimination

Posted on 26 Feb 201826 Feb 2018 by The Law Blog

During her judgeship at the Delhi High Court, Justice Leila Seth was introduced by her male colleagues as “meet our lady judge” and she retorted that no judge is ever introduced with “meet our male or gentleman judge”. At the beginning of her career as well, she received advice from senior lawyers to get married and raise a family instead of starting a career in law. The present instance is a very subtle expression of sexual discrimination a woman is subjected to if she steps out of her home to work and make a livelihood.

Throughout the world, women are subjected to prejudice in every realm of their lives and sexual violence has reached the stage of a global epidemic that needs to be addressed urgently as it violates the basic human right of a woman. However, until recent times, sexual discrimination or sexual violence against women was not treated as a serious concern by any employer or government.

According to the definition of Equal Employment Opportunity Commission, sexual harassment of any kind is any unwelcome or unwanted sexual advance or conduct that impedes a person’s job performance or creates a hostile, intimidating, or offensive work environment. In India, after independence, there were very few gender-specific laws to protect the basic human rights of women by preventing and redressing sexual discrimination and sexual violence against women.

There are different classes of offences perpetrated against women which includes the offences of female foeticide to kill a woman even before her birth, female infanticide, depriving women from the right to inherit family property, mental and physical cruelty at matrimonial home, torturing women for dowry, sexual harassment of women at workplace and some serious and heinous crimes like trafficking, rape and acid attacks.

According to a publication of the WHO, “sexual violence includes any of the following acts: rape, marital rape, domestic violence, child abuse, female infanticide, denial of health care or nutrition to girls, sexual and emotional harassment, genital mutilation, prostitution, pornography, population control, war and state violence, exploitation of refugees, political violence, and reduction in state services which increases the stress and workload for women”.

Sexual offences in the form of sexual violence can cause severe and permanent damage to the physical and mental health of the victims and may also lead to suicide, acute depression and even murder of the victim. The victims of the sexual offences are stigmatised and consequently, they lose their status in their families and society which in turn disrupts their life and social wellbeing.

The Indian Constitution provides that any kind of sexual violence is a violation of the fundamental right to equality, right to life and right to live with dignity by virtue of Articles 14, 15 and 21. Article 19 (1) (g) of the Indian Constitution grants the right to practice or to carry out any occupation, trade or business and it includes a right to a safe environment free from harassment.

Although India has signed and ratified the Convention on the Elimination of All Forms Discrimination against Women, which was adopted by the General Assembly of the United Nations, in 1979, it took a long time to frame laws and procedures to end discrimination against women. The CEDAW signatory countries are legally bound to put the following measures into practice in order to end discrimination against women:

to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.

Owing to the dynamic feminist movements and demands for laws to protect women from sexual discriminations and offences, the Indian parliament has passed the Criminal Law (Amendment) Act. 2013) to amend the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences Act, 2012 to define various kinds of sexual offences including aggravated sexual offences like rape and acid attacks and provide related procedures and punitive measures.

In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was also enacted adhering to the principles and guidelines laid down by the landmark Vishaka Judgement of the Supreme Court in 1997 aiming to ensure safe working places for women and to create conducive and healthy work environments that recognizes the right to equality of status and opportunity of every woman. A successful implementation of these new laws will definitely facilitate the achievement of the right to gender equality, life and liberty and equality in working conditions for women.

ABOUT THE AUTHOR

Shampa Chowdhury

She is a legal professional working in a Law Firm in Kolkata. She has a brief experience of content writing for a few Law portals. Currently, Shampa is pursuing a course on Cyber Law Practice, Information Technology and Social Media Law from NUJS.

Human Rights

Palliative Care – Even the sick and weak have human rights

Posted on 8 Aug 20178 Aug 2017 by The Law Blog

Human rights have existed since human existence and they are what allow us to live as humans. And since its existence, human rights have evolved in many ways and they still continue to do so. They have evolved from freeing all humans from slavery to all men being born equal to the Universal Declaration of Human Rights to equal rights for the underprivileged to LGBT community’s rights, and the evolution still continues. One such recent evolution in human rights is ‘Palliative care’. So, what is palliative care?

I am sure not many of us know what palliative care means. If I had to connote it in simpler words, it means ‘End of Life Care’. When a person is struck with a long-term disease or a chronic disease, like cancer, HIV/AIDS, etc., whereby their death is imminent, their world is disrupted. The same is the case when a person becomes frail due to old age. Such persons’ normal routine undergoes a change and they are in need of special care.

When a person is suffering from a chronic or a long-term disease or is frail due to old age, they become patients and their family members become their ‘caregivers’. This has been a trend for many years now. The family starts caring for such aforementioned persons, and this becomes a burden on both the ill persons and the family members. Why? Because the ill persons are not given the proper care which the professionals can give and this tends to give them more pain, adding to their already existing pain, and the family members are also burdened with due to emotional and financial issues.

It’s not easy to take care of an old frail person and a person suffering from a long-term disease. So, why do such persons need palliative care? It’s to preserve their human rights. Palliative care is fundamental for preserving the health and dignity of the diseased and the old people; and this can be done by providing the necessary care to such persons by eliminating, or at least by reducing, the pain and other distressing symptoms. Palliative care helps the patients by helping them in identifying the physical and the emotional needs, by providing comfort and by helping to cope with the changes in their condition.

Of course, Palliative Care is not restricted only to the patients, but also to their family members. The emotional issues that the patients’ family members go through are burdening on them and even on the patients, equally. That’s when Palliative Care comes into the picture and helps the family members, too, through compassionate listening, which can help them deal with their grief and move on with their lives, and also helps them with decision making related to the goals of care of the patients.

In short, Palliative Care exists to ensure that the patients suffering from long-term diseases and frailty due to old age live a painless life for the limited amount of time they have. And, though very recent development in human rights field, there have been many Palliative Care centres set up in many countries, including India, to protect the human rights of the diseased and old persons. So, next time, you have a family member who needs that extra care or end-of-life care, just look up on the internet for the Palliative Care centres.

ABOUT THE AUTHOR

VIDHYA KUMARSWAMY

Vidhya Kumarswamy is a Law student pursuing B.B.A. LL.B. (Hons.), has a craving for knowledge and passionate about writing just as she’s a passionate foodie. Also, she’s a blogger and an Otaku.

Human Rights

Peace, Tolerance, and Rule of Law to ensure Human Rights

Posted on 24 Jul 201724 Jul 2017 by The Law Blog

It is evident that young people in Africa make up to 60% of the population and this indicates that there is a great need to harness on the involvement of young people in order to ensure that there exist freedom and respect for human rights within a society. However, there are about three major concepts that need to be focused on in order to ensure freedom, and these concepts of tolerance, peace as well as the effective application of the rule of law.

Moreover, it should be noted that freedom is not only limited to the listed concepts, but they serve as the most crucial concepts that need to be applied at all times in order to ensure that freedom for all citizens is not limited in any way or infringed. Peace is usually associated with the absence of war and to some extent, this is very true. However, peace is when there is no poverty and the people within the community equally enjoy the prosperity within their own community. However, so many people in Africa are victims of poverty hence challenging their freedom as citizens to pursue their desired goals and ambitions so as to provide for themselves and to the economy of the country, therefore in order to overcome such a challenge it is time for young people to be more involved in ensuring freedom for all.

One basic example will be that in my very own community, poverty has escalated due to various reasons such unemployment, cronyism, just to mention a few; which has affected many young people both in the urban and rural areas. Therefore, in order to challenge such an issue and advance freedom in my community; the following aspects should be maintained so as to create a solution to this issue/ problem.

These aspects include training, research, conducting more campaigns or parades so as to advance the importance of maintaining peace, tolerance and the effective application of the rule of law. As discussed in the latter, peace is when all members of the community enjoy the benefits equally whereas tolerance is respecting the different opinions, ideas of others irrespective of those ideas being different from your own personal point of view and lastly the rule of law is when there is no bias in the application of law and when the law principles are equally applied to all members of the community despite the status of a person. In terms of training, young people should be trained on the essence of peace, tolerance and effective application of the rule of law, and such pieces of training should be conducted on regular basis in schools colleges or universities as well as including young people working with non-governmental organisations.

However, before this training can be conducted a proper, detailed research should be carried out so as to find out the different opinions of people within the community concerning such a problem and the exact number of people affected. The research will enable the researcher to be more informative and be able to share with others the possible ideas that could be the solutions of advancing freedom. The other aspect will be that of campaigns, campaigns usually educate others on a specific matter which is a concern within a community or raise awareness. Trained youth should conduct campaigns in schools and such campaigns should be informative, direct and reflect the possible goals of conducting such campaigns. Not only should these campaigns be informative but should edge more young people to be more involved, edge more young people to establish groups, which will vigorously fight for peace, tolerance within a community in order for all members to enjoy the prospects of freedom. Such can be done by holding more campaigns or parades in schools, which will teach students about peace and how poverty can be overcome when prosperity is equally shared and enjoyed by all citizens within a community.

Furthermore, local stakeholders should form partnerships with young or youth leaders that advocate for peace and tolerance. Therefore, with that, in conclusion, in order to advance freedom, more young people should be involved and the discussed concepts should be upheld at all times. Just as Nelson Mandela said, “To be free is not merely to cast off one’s chains but to live in a way that respects and enhances the freedom of others”.

ABOUT THE AUTHOR

LESEGO GAETWESEPE

Lesego Gaetwesepe is a law graduate and she is intrinsically passionate about human rights, community building and empowering young people. She is a participant at the YALI Regional Leadership Center in Southern Africa and was also part of the #ageofconsent project. She was also part of a project facilitated by NACA (NATIONAL AIDS COORDINATING AGENCY). Ms Lesego is currently a volunteer at Gogontlejang Phaladi Pillar of Hope Project and also represents the organisation at the UNESCO Pan African Youth Network for building a Culture of Peace, and she is also taking up training as an ASFL (African Students for Liberty) Local Coordinator.

Human Rights

Is poverty a violation of human rights?

Posted on 13 Jul 201713 Jul 2017 by The Law Blog

We are living in a world where more than a billion of people are living with less than a dollar a day. Because of lack of resources, every day 30 000 children under 5 years die because of sicknesses that could be prevented. 1 over 5 children doesn’t have access to primary school and only 1 over 10 will live until 5 years. This awful outcome, which could be extended, explains the socio-economic situation of the world. Even though everyone is convinced that poverty as a social phenomenon is real, there is a great deal of debate about what Poverty truly is. However, a precise definition of poverty is necessary to delimit the phenomenon, by identifying the main actors for bringing appropriate solutions.

Thus poverty, as a social phenomenon, should be regulated by Law. But even if it is hard to believe, poverty is not definable in Law. In a few lines, we will see how it would be essential to plead to conceive poverty in a legal framework, especially through the prism of human rights.

What is poverty?

A potential definition of poverty will depend on what aspect of poverty is taken into account. Thus, we distinguish two main approaches to poverty: an absolute approach and a relative one. According to the absolute perspective, Poverty is a lack of vital minima, such as needs of nurture, health care and education, which is due to a lack of resources. The relative approach defines the poor as those whose life condition is lower than the life of the population they belong to. But these two perspectives can’t separately explain the complexity of the notion. That is also the viewpoint of Amartya Sen, a great Indian economist, who is defending the concept that exceeds this controversy. Thus, a scientific definition is necessary for designing poverty as a combination in terms of income, human development, social exclusion and rights.

Is poverty a violation of Human rights?

Some people think poverty is not a human right violation. Firstly, because experts don’t agree about what causes and maintains poverty. Thus, if the causes are unknown it will be impossible for Law to prevent them by enacting clear rules. Secondly, it is not possible to identify those who are responsible for human rights violations. Therefore, Law cannot reprimand them if they do not fulfill their duty. Furthermore, the distinction between people who are poor and those who are not is arbitrary. Those who are poor in a specific country can’t be considered differently in other countries.

However, we believe that the dilemma to identify those who are poor and those who are responsible for eradicating poverty can be solved, if poverty is considered as a human right violation. In that sense, it would be possible to mobilise public action and contribute to the adoption of adapted public policies by the governments.

Consequently, the poor would be those who can’t exercise their socio-economic rights. This approach is justified when we think of the mission of the human rights. Firstly, human rights, specially the socio-economic rights, tend to permit to each man and woman to exercise their economic, social and cultural rights so they can achieve the ideal of free human beings. In that sense, the general assembly of ONU adopted on 16 December 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR). Secondly, human rights are generally identified as rights held by every person just because of his/her human nature. Then, poverty will become an urgency that requires public policies, rules, rather than compassion and charity. Therefore, the poor will be able to initiate legal action against his/her government and the persistence of poverty will become a denial of justice.

Moreover, poverty can be considered as a human right violation, because its consequences such as hunger, housing problem and illiteracy, are clearly prohibited by the article 11 of the ICESCR, which stipulates that every human being has the right to an adequate standard of living including basic income, food, housing, sanitation and clothing and the continuous improvement of living conditions.

Talking about poverty in terms of human rights violation put emphasis on the interconnection between socio-economic rights and civil and political rights that are in practice neglected. In fact, the civil and political rights can’t be turned into reality if the socio-economic rights are not respected.

Poverty is a scourge that must unceasingly be fought, and defining it as a human right violation can be a new paradigm in eradicating poverty in the world. Thus, poverty would be the impossibility to exercise the socio-economic rights. But, defining poverty as human right violation won’t be sufficient if institutions are not established to guarantee the socio-economic rights.

However, how to eradicate poverty in countries where human rights are still not recognised?

ABOUT THE AUTHOR

PATRICK ERWIN MICHEL

Patrick Erwin Michel has studied Law at School of Law and Economic Sciences of the State University of Haiti. He is currently preparing his final dissertation on Poverty and Human rights. He is poet, slammer and comedian; he has studied drama at National School of Arts. His area of interests includes Literature, Philosophy, Sociology, Law and Research in Social Sciences. Above all, He is convinced that education can create a better world.

Human Rights

The universality of Human Rights and Hurdles thereto

Posted on 10 Jul 201710 Jul 2017 by The Law Blog

Human rights are defined as entitlements that one acquires. Moreover, there is no definite definition as to what human rights are; as they can be described in various ways. Their definition can either be derived from various documents such as International treaties, covenants or conventions; and one of its principles is that human rights are universal.

The term universality of human rights connotes that these rights apply to all regardless of sex, age, colour, religion, ethnic group etc. They are recognised by international law; meaning they apply both to a global and national system as it stems in the Universal Declaration of Human Rights[1]. However, the universalism of human rights has proven to be a complex and controversial issue as it has been difficult to implement in practice due to various reasons.

Furthermore, one of these reasons will be that of culture or cultural practices which have acted as hurdles in the implementation on the set of universal human rights. These practices are viewed as norms within a certain cultural group which threaten the lives of individuals and the promotion of human rights, thus making it difficult to protect individuals from certain cultural beliefs or norms that bring forth harm into their lives. A typical example will be that of female circumcision which has been in practice for over many years in many African countries.This practice threatens the lives of women and girls as it is in breach of article 6 of the International Covenant on Civil and Political Rights which describes that every individual is entitled to the right of life.[2] It is also in breach of article 12 of the International Covenant on Economic, Social and Cultural rights which stipulates that every individual has the right to health.[3] According to a case study that was conducted in Burkina Faso in 2004, about 90 percent of girls have gone through such a horrific procedure[4] and this on its own challenges the promotion, protection and the universal concept of human rights.

Despite the efforts that have been made to raise awareness on the protection of human rights; cultural relativism has seemed to take its own toil. The concept, ‘Universality’ has rather been described as a western idea that promotes western practices and values but further challenging cultural values and norms. This, on the other hand, has relatively caused an inherent conflict as it is difficult to balance between cultural relativism and the universalism of human rights in order to ensure that all rights are protected.

One other practice which is a major concern will be that of honour killings. This is basically where an individual kills a massive number of people all in the name of their deity. This religious norm causes a corrosive effect both on the individual and the society. However, many seem not to realise that encouraging such norms is also challenging the humanity of other people. This may explain why the implementation of universalism has almost seemed impossible.

There are many other different practices which challenge the concept of universality, however, in conclusion, the start of challenging these is through education; that is making individuals realise the importance of respecting one’s individual rights. Just as the late South African President, Nelson Mandela once said ‘Education is the most powerful weapon that can be used to change the world.

[1] Human rights and their Universality <https://www.lawteacher.net/example-essays/human-rights/universality.php

[2] Summary of ICCPR and ICESCR

[3] Ibid

[4] Religious practices in female Genital cutting: A case study in Burkina Faso <Https://www.ncbi.nlm.nih.gov/pmc/articles>

ABOUT THE AUTHOR

LESEGO GAETWESEPE

Human Rights, Social Issues

The Need to Recognise and Confer Rights to LGBT Community: India

Posted on 3 Oct 20163 Oct 2016 by The Law Blog

This article is written by Pooja Ogale. Pooja is currently pursuing her LLM (Specialization in Constitutional and Administrative Law) from GNLU, Gujarat.

We are in the era where people are more emphasising over the aspect of individual rights and human rights. We are able to witness a shift from the orthodox hypocrite principles and perception to more rationale human rights perception. In a way, we can say that we are moving towards the idea of liberalism. People around the world are raising concerns with respect to the human rights of vulnerable classes of people existing in the society. Apart from women, children, and refugees, there is one more community which has been vulnerable in the society whose human rights are abridged is the LGBT community.

LGBT community basically includes people having a different sexual orientation. The community includes the people who are lesbians, gay, bisexual and transgender. The people belonging to this community or class are often stigmatised by the society, they face a lot of legal and social difficulties.

Internationally various countries have recognised the rights of the LGBT community and have provided a legal status to people belonging to such community and also have permitted gay marriages. It is only recently that the people are accepting the people of different sexual orientation and identifying the transgender but few years ago such people were looked down upon and were considered to be not socially acceptable. But, due to the increase of awareness, education and emphasis on the human rights people are now moving towards the idea of tolerance, social acceptance, equality and liberalism. Universal Declaration of Human Rights (UDHR) does not specifically mention about sexual orientation and gender identity but it confers some basic human rights to every person on the planet from a virtue of being a human. Therefore it is important that the basic human rights of every person should be protected irrespective of him/her belonging to any class or community.

In India, certain basic rights are conferred upon the citizens by fundamental rights enshrined in the Constitution of India. Recently, in 2014[1], the Supreme Court in the case of National Legal Services Authority v. Union of India[2]have recognised transgender people as the third gender and affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, in addition to this the Supreme Court granted them reservations in educational institutions and jobs as they are socially and economically backward classes. This step taken by the courts can be considered to be a major step towards gender equality and gender identity in India.

Same-sex intercourse or homosexual intercourse is a criminal offence according to Section 377 of the Indian Penal Code 1860. In 2009, the High Court of Delhi, in Naz Foundation v. Govt. of NCT of Delhi[3] made an observation that Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct are in direct violation of fundamental rights provided by the Indian Constitution. The court did not declare the Section 377 as unconstitutional as a whole, but it was passed over to the Parliament to amend the law with respect them. This judgement was unwelcomed by various people and there was a lot of resistance from many over this issue of acceptance of such activities by society at large. In 2013, the Supreme Court set aside the verdict given by the Delhi High Court on decriminalisation of Section 377 of IPC over consensual homosexual activity.[4] The Supreme Court emphasised over the need to legislate and debate over the matter by the parliament.

Same-sex marriages or Gay marriages are illegal in India. The couples are not legally recognised. Such a practice is highly stigmatised in the Indian society and is considered to be abnormal. Often people consider homosexuality to be a disease or health ailment rather than a sexual orientation. People are not able to accept the LGBT community as a part of their society.

What is needed is the social inclusion of LGBT community as at the end they are human beings, even if they have a different sexual orientation or different gender they are human beings and they have every right to have a normal and a happy life and to have a normal discourse in life. Many countries across the globe such as USA, UK, France, New Zealand, South Africa, Argentina, Norway etc. are recognising the rights of LGBT community. Therefore it is important that India also recognises the rights of LGBT community in light of the basic human rights.

Section 377 of the Indian Penal Code is a very old provision and is stagnant, it is important that the law should be changed as per the needs of the people in order to attain welfare and harmony amongst the people. Thus, decriminalisation of Section 377 of the IPC is must. LGBT community should be recognised by the people in India and by the State and should confer rights upon them which are basic human rights, differentiation on the basis of gender identification and sexual orientation should be curbed.

[1]India court recognises transgender people as third gender, BBC News, 15 April 2014, India.

<Accesible at: http://www.bbc.com/news/world-asia-india-27031180> , Last accessed: 24^th Sept 2016

[2]Writ Petition (Civil) No. 400/2012

[3] Writ Petition (Civil) No. 7455/2001

[4]Suresh Kumar Koushal&Another v Naz Foundation & Others (Civil Appeal no. 10972 of 2013)