• Brain Booster Articles

HUMAN RIGHTS ANALYSIS IN INDIA

Author: Mansi Rathi, V year of B.A.,LL.B.(Hons.) from Institute of Law , Nirma University


ABSTRACT

Every individual has dignity and worth. Recognizing and respecting people's human rights is one way we acknowledge and respect their basic worth. Human rights are a set of ideals that deal with fairness and equality. They value our autonomy in making decisions about our life and realising our full potential as human beings. It's about living a life free of fear, harassment, and discrimination. This paper will talk about what are human rights and how they evolved. Furthermore it will analyse the Human Rights in India. It will discuss the 5 Human Rights in India, namely right to life, freedom of religion, LGBTQ Rights, women’s rights and no slavery along with their status, cases related to the same and violations if any. Furthermore it will provide conclusion and suggestions if any.

KEYWORDS: Human Rights, Constitution of India, Right to Life, Women Rights, No Slavery, LGBTQ+ Rights


INTRODUCTION

Human rights can be broadly defined as a set of fundamental rights that people all over the world have decided are necessary. These include the rights to life, a fair trial, freedom from torture and other cruel and inhuman treatment, freedom of expression, freedom of religion, and the right to health, education, and a decent standard of living. These fundamental rights apply to everyone - men and women, young and old, rich and poor – regardless of our background, where we live, or what we think or believe. This is what distinguishes human rights as "universal."


Human rights are not a brand-new concept. Concepts of ethical behaviour, justice, and human dignity have played a significant role in the formation of human communities throughout history. These concepts can be traced back to Babylonian, Chinese, and Indian civilisations. The Magna-Carta was the first document to limit the king's ultimate power and make him answerable to his subjects. It also established some fundamental rights for people' protection, including as the right to a trial. Human rights thought evolved significantly in the seventeenth and eighteenth century, during a period of revolution and establishing national identities.


The abolition of slavery, the widespread supply of education, and the development of political rights were all examples of progress in the nineteenth and early twentieth centuries. After the Second World War concluded in 1945, millions of lives were lost, including the first and only use of atomic weapons at Hiroshima and Nagasaki. The conflict wreaked havoc on many countries, killing millions of people and forcing millions more to flee their homes. The United Nations, which was established in 1945, was the result of this new organisation.


HUMAN RIGHTS IN INDIA

Human rights protection is critical for the growth of the country's people, which in turn contributes to the development of the country as a whole. Every citizen of India is guaranteed basic human rights under the Indian Constitution. Human rights in India have been around for a long time. The principles of Buddhism, Jainism, Hinduism, and other religions can simply be recognised. On January 1, 1942, India ratified the Universal Declaration of Human Rights. The Indian Constitution almost entirely covered the rights in the Universal Declaration of Human Rights, either in Fundamental Rights or in Directive Principles of State Policy.


Some of the Human Rights are as follows

Right to Life

Life is a human right, according to Article 3 of the UDHR[1]. As a result, the death penalty is our most basic human rights violation. Although Article 6 of the ICCPR allows for the use of the death penalty in restricted circumstances, it also states that "nothing in this article shall be invoked to delay or hinder any State Party to the present Covenant from abolishing capital punishment." The General Assembly urged States to observe international standards that protect the rights of persons facing the death sentence in a series of resolutions enacted in 2007, 2008, 2010, 2012, 2014, 2016, and 2018, and to gradually reduce the number of offences punishable by death.


Article 21 [2]of the Indian Constitution guarantees everyone the right to life and personal liberty, as well as the right to live in dignity. No one's right can be taken away from them unless it is done in accordance with the law. This plainly demonstrates that the state has the authority to take away even one's right to life in the interest of Law and Public Order, as long as the procedure is followed according to the law.


Capital Punishment can be given in the cases of murder, terrorist activities, and cases of rape, treason and kidnapping. This means that only if a person has committed a crime can his or her life and personal liberty be questioned. As a result, the state has the authority to take away or limit one's right to life in the name of law and public order, as long as the procedure is followed.


Even if a crime is of monumental proportions and has been carried out in the most detailed manner, it may not fall into the unusual category. The intensity of an offence may be measured separately from the intensity, manner/preparation, and time of the offence's commission. The term "rare" should be understood broadly to cover the intensity, manner, scale, reason, revenge, and un-remorsefulness associated with it.


The Supreme Court ruled in Bachan Singh V. State of Punjab that capital punishment under section 302 of the Indian Penal Code does not contradict Article 21 of the Indian Constitution. The International Covenant on Civil and Political Rights, which India is a signatory to, does not completely eliminate the death sentence. However, the death penalty must be imposed in a reasonable manner and not arbitrarily. In the most egregious offences, which are the rarest of the rare occurrences, the death penalty should be enforced. Furthermore in the well-known case of Ajmal Kasab, the Mumbai Special Court found him guilty of murder, waging war on India, possessing explosives, and other crimes, and sentenced him to death three days after his conviction. Furthermore, the Bombay High Court supported the decision, adding that he was guilty of 80 offences in total and that the only punishment suited for killing 166 people in Mumbai's 26/11 assaults appears to be the death penalty. The Supreme Court upheld his death sentence as well. The very well known Nirbhaya Rape case also upheld the death penalty for the offenders.


Many countries have abolished the death penalty or capital punishment, citing the fact that it is brutal and inhumane in nature, and that it violates citizens' rights to life and liberty. If a valid view is to be accepted, it is reasonable to conclude that capital punishment, especially in its most heinous form, is beneficial in lowering criminal offences and discouraging criminals to some extent. Furthermore, if we're talking about the right to life, it's important to note that the Indian Constitution allows enough remedies and defences to offenders, such as the access to legal assistance, treatment, and so on. The President of India and the Governor have the authority under Articles 72 and 161 of the Constitution to grant pardons and suspend, remit, or commute sentences in specific circumstances. The president or governor may review the convict's case and decide to commute his or her sentence to life in prison. Thus the capital punishment in India is constitutionally valid and reasonable if it is used only in the most heinous and extreme circumstances.


Freedom of Religion

Article 9 of Human Rights Act protects your right to freedom of thought, belief and religion. Article 25-28 [3]of Indian Constitution protects the right to religion of the citizens. Every citizen of India, as a secular republic, has the right to religious freedom, or the freedom to practice any faith. Given the diversity of religions prevalent in India, the constitution ensures that every citizen has the freedom to practice the religion of their choosing. Every citizen has the freedom to peacefully practice and disseminate their faith under this fundamental right. And if there is any religious intolerance in India, it is the responsibility of the Indian government to put a stop to it and take harsh action. Articles 25, 26, 27, and 28 of the Indian constitution detail the right to freedom of religion.


Religious freedom in India is deteriorating and has been for at least a decade. As a result, religious minorities' struggle has reached new heights. This is despite the fact that India's 1949 Constitution explicitly recognises the right to freedom of religion or belief. In addition, India ratified the International Covenant on Civil and Political Rights (ICCPR), pledging to follow the treaty's international human rights standards. Nonetheless, these assurances are once again insufficient.


Independent India's religious tolerance history has had a few failures, some of which have resulted in fatalities. 20 India's population of 1.3 billion people is made up of an 80 percent Hindu majority and an 185 million Muslim minority (about 14 percent; India's Muslim community is the world's third largest, after Indonesia's and Pakistan's). Christians make up more than 2% of the population (approximately 30 million), whereas Sikhs make up little less than 2%. (about 22 million). The remaining 2% is made up of Buddhists, Jains, and others. The current demographics reflect a long-term and continuous shift: when India gained independence, the Hindu majority made up around 85 percent of the population, while the Muslim minority made up about 10%. Hindus in Hyderabad in 1948 (up to 40,000 dead); Sikhs in Delhi in 1984 (more than 3,000 died); Muslims mostly in Mumbai in 1993 and Gujarat in 2002 (up to 3,000 combined deaths); and Christians in Odisha (formerly Orissa) in 2008. (up to 100 deaths). According to the data, Muslims make up the majority of the population in 32 districts. Half of India's Muslim-majority districts are in Jammu and Kashmir, India's sole Muslim-majority state, which has an estimated population of 8.6 million Muslims. Eight more Muslim-majority districts can be found in Assam. Uttar Pradesh has the most Muslims of any Indian state, with roughly one out of every five residents being Muslim. With 25 million Muslims, the eastern state of West Bengal, which borders Bangladesh, is around 27% Muslim.[4]


LGBT+ Rights

Human rights are based on the assumption that all people are created equal. As a result, all humans possess dignity and should be treated equally. Anything that diminishes its dignity is a violation, as it goes against the concept of equality and allows discrimination to flourish. LGBTQ rights are gaining traction around the world, with significant progress being made in several nations in recent years, including the establishment of new legislative protections. The Indian Constitution's preamble demands that everyone be treated equally in terms of social, economic, and political position. Articles 14 and 21 [5]ensure the right to equality before the law and equal protection under the law.


There are various occasions in ancient India where poetry and legends describe love between the same sexes, particularly between queens and rulers. The Kamasutra, an ancient Indian love scripture, discusses feelings shared by both sexes. Homosexuality was never regarded a criminal in the past; in fact, alternative sexuality was an important element of society. In ancient India, there were more than 20 different genders, such as trans-woman, trans-man, androgynous, pan-gender, and so on, and it was known as Trithiya Prakirthi. Trans-women in India, known as Hijra, have been a part of Indian society since the dawn of civilisation. Later in the Arthashastra, a wide range of sexual behaviours committed by both men and women were listed as criminal. Homosexuality was regarded as a minor transgression. The Mughals also merged various pre-existing Delhi Sultanate rules and produced the Fatawa-e-Alamgiri, which established a set of mandatory rules regarding Zina, or illegal intercourse. Under Section 377 of the Indian Penal Code, 1860, the British criminalised sexual behaviours that were "against the order of nature," presumably gay activities. Until 2009, homosexual intercourse was a criminal felony under this section.


For a decade, gay rights advocates have been fighting Section 377. Lesbian and LGBT organisations petitioned the Delhi High Court in 1994 to overturn the ban. The lawsuit has been going on for five years and has sparked a lot of controversy. Even members of the Indian lesbian collective Stree Sangam spoke at a government conference on marriage and family law in 1996 about domestic-partnership rules. In a letter to the homosexual magazine Trikone, the organisation claimed that it was "possibly the first time that a lesbian/gay group [attempted] to create public opinion on the issues in such a venue." The second national LGBT conference, the Indian National Gay Conference YAARIAN -99, took place in February 1999. Similar to the attacks on the films "Fire" and "Girlfriend," a number of organisations have formed the Lesbian Rights Campaign. The petition, submitted by a non-profit group, contended that homosexuality should not be a criminal offence in 21st-century India.


After various ups and downs judiciary recognized the rights of LGBTQ Community through various cases. In the matter of the Naz Foundation vs. the Government of the National Capital Territory of Delhi In 2009, the Delhi High Court ruled that Section 377 violated Articles 14, 15, and 21 of the Constitution. The court determined that Section 377 does not differentiate between public and private actions, or between consensual and non-consensual acts. When Section 377 applied to kids, the decision was limited to adults. In law, Section 377 allowed for the harassment of LGBT individuals. The National Legal Services Authority vs. Union of India (3) case, determined by a two-judge court in July 2014, recognised transgender people to be the "Third Gender" and affirmed their fundamental rights. They were also given preference in educational institutions and job applications. In the historic ruling of Navtej Singh Johar v, Union of India, a five-judge bench of the Supreme Court of India found Section 377 to be unconstitutional on September 6, 2018. The right to privacy was declared a part of the right to life and personal liberty protected by Article 21 of the Constitution in the ruling.


Despite these rulings, LGBT community still face challenges and are seen with the lens of stereotype. Moreover they still have a long way to go to come at par with the rights given to heterosexual community. Rights like right to marry, adoptions etc are still not easily rendered to them.


Suggestions: In India LGBT+ Rights have not been recognized as people still consider it to be a taboo and consider it to be the disease, the mentality of society cannot appreciate the rights of others and consider it to be a disease, thus proper education is to be given through awareness programs. Moreover Individuals should be protected from homophobic and trans-phobic violence, as well as torture and other cruel, inhumane, and humiliating treatment. Establish effective methods for reporting hate-motivated acts of violence, including properly investigating and prosecuting perpetrators, and bringing those responsible to justice.


Women Rights

A variety of international instruments have been established to combat violence against women. The United Nations General Assembly endorsed the urgent need for women's rights to equality, security, liberty, integrity, and dignity to be universally applied. The United Nations charter's Articles 55 and 56 impose a legal obligation on the organisation to promote equality and human rights. No one shall be tortured or subjected to cruel, brutal, or degrading treatment or punishment, according to Article 5 [6]of the Universal Declaration of Human Rights. The Vienna Declaration of 1993[33] asks for measures to integrate women's human rights on an equal footing. It emphasises the need to end violence against women in both public and private life.


Despite the fact that the Universal Declaration of Human Rights prohibits any discrimination based on gender, we find that women continue to face significant discrimination. Discrimination against women is incompatible with human dignity, family welfare, and societal well-being, and it stops women from reaching their full potential in service to their country and community. Denying women equal rights to males is not only harmful to women, but it is also a crime against humanity, given its negative consequences on the growth of a country and society, as well as the cause of peace and global wellbeing. The right of women to be treated equally to men is the essence of their rights.


There are various India Legal Provisions like Article 14 of the Indian Constitution deals with equality. Differential treatment of men and women by the state is forbidden on the basis of religion, race, caste, sex, or birthplace. Article 21 deals with the right to life, specifically the right to live in dignity. The National Commission for Women was established in January 1992 as a statutory body under the National Commission for Women Act, 1990, to review the constitutional and legal safeguards for women, recommend remedial legislative measures, facilitate grievance redress, and advise the government on all policy matters affecting women. Furthermore IPC Sections 312, 315, 375 all try to prevent offences against women.


Violence against women takes place right through the life cycle from pre-birth, infancy, childhood, adolescence, adulthood to senescence, because many cases go unreported, the majority of the data is thought to be unreliable. Rising crime against women, a widening gender gap, and India’s poor score in the gender inequality index all point to a bleak state of affairs for women in India. We all know that India’s Constitution has gone a great way toward ending the prejudice that women suffer in civil society. It recognises women as a distinct class and allows for the passage of laws and reserves that benefit them. Affirmative action in favour of women is expressly provided for in several parts of our Constitution. It outlaws all forms of discrimination against women and establishes the groundwork for women to have equal opportunities in all aspects of life, including education and employment.


Women are subjected to various ordeals like domestic violence, sexual harassment at work place, dowry deaths, bride buying, widow burning etc. The number of cases of violence against women in the country is gradually rising. According to India’s National Crime Record Bureau, one dowry death occurs every 78 hours, one act of sexual harassment occurs every 59 minutes, one act of rape occurs every 34 minutes, one act of torture occurs every 12 minutes, and nearly one out of every three married women has experienced domestic violence. According to Indian studies, 19–76 percent of women are subjected to violence. Lower caste women: 75–76 percent; Uttar Pradesh: 42–48 percent; Tamil Nadu: 36–38 percent; and an urban slum group of childless women: 19 percent. Domestic violence was linked to 15.7 percent of pregnancy-related fatalities in the community and 12.9 percent of pregnancy-related deaths in the hospital in Western India. In Uttar Pradesh, 30% of males admitted to hitting their spouses. Physical assaults were committed against 22% of women of reproductive age in a potter village. Medical care was required by 34% of individuals who were physically abused. [7]


We see lascivious depictions of women in print, commercials, movies, and other forms of media. This heinous objectification of women as something to be exploited and possessed as a property, we believe, perpetuates feudal Patriarchal ideals that viewed women as second-class people. This complex phenomenon is so widespread that it is often considered a way of life, especially for women. It is represented in dress etiquette and even daily conversations. There are laws prohibiting indecent representation, but they are rarely enforced. As a result, sexual assaults and gender-based violence are on the rise. Something that can be owned cannot be compared to something else. To curb the violence against women and protecting women rights it is important to stop the objectification of women. Concerns about the sensitivity and boundaries of man-woman relationships require gender sensitization by parents and teachers.


No Slavery

Article 4 of Human Rights Act prohibits slavery and forced labour. The Indian Constitution protects and safeguards the rights under Article 23 [8]as Prohibition of traffic in human beings and forced labour. In India, The Bonded Labour System (Abolition) Act of 1976 establishes a legal framework against bonded labour, which is reinforced by labour legislation such as the Contract Labour Act, the Inter-State Migrant Workmen Act, and the Minimum Wages Act. The Act legally prohibited debt bondage and proclaimed null and void any conventions, traditions, contracts, or agreements that oblige a person to do bound labour. The Act also outlaws bonded labour, establishes individual and corporate criminal culpability, and imposes a penalty of up to three years in jail and a fine of 2,000 rupees for those who advance a bonded loan, extract bound labour, or force someone to do so. Section 370 additionally mentions government officials' involvement in human trafficking and imposes punishments of up to life in prison.


Despite such provisions in India, forced labour and human trafficking for labour exploitation are widespread problems. Forced labour and debt bondage are widespread in India's primary, secondary, and tertiary economic sectors, with widespread reports in industries such as brick kilns, carpet weaving, embroidery, textile and garment manufacture, mining, manual scavenging, and agriculture. Through recruiting fraud and financial bondage, some Bangladeshi and Nepalese migrants are forced to work in India.


In India's socioeconomic framework, bonded labour is profoundly embedded. Debt bondage is an exploitative practise perpetuated by coercion and custom. It is more than an economic model for the organisation of labour. Furthermore, data reveals that debt bondage disproportionately affects members of marginalised castes and tribes, religious minorities, immigrants, and migrant labour. Members of these communities in India are particularly prone to severe labour exploitation, including trafficking and forced labour, due to their social and economic marginalisation and restricted capacity to migrate out of these groupings. Despite the government's efforts, these groups continue to have far greater levels of poverty and illiteracy than the overall population. Furthermore, members of these groups frequently lack realistic employment options as well as access to credit and financial services, resulting in a culture of perpetual debt. While there are laws in place to safeguard these communities, enforcement is lacking.


Suggestions: To begin with, the rule of law must be strengthened globally and Government should play a pro-active role. Country's police and judiciary need the training and resources they need to enforce existing laws and make human trafficking a high-risk activity. Second, businesses must examine their supply networks and work to remove modern slavery. Economic pressures on a global scale can have a significant impact. Finally, India’s community development programmes must incorporate anti-slavery tactics and actions into their daily operations.


CONCLUSION

In a nutshell it can be concluded that there is still a long way to go to attain basic human rights in India despite all the existing provisions. There are various Human Rights guaranteed by India , nevertheless the limit of this paper is to discuss only the 5 of existing human rights, moreover it touches upon the basics of all the human rights discussed. The paper discussed 5 human rights of India where it talked about the international provisions along with the Indian laws to uphold the respective human rights. However it is evident with certain examples that in some or the other ways these rights are violated.


In general it can be said that the vehicle of human rights has to be drawn together by

i) government/ policy makers (by making stringent rules and regulations),

ii) executive bodies like police and commissions (by implementing the laws)

iii) judiciary (by interpreting the laws and communicating the intent of the laws to general public)

iv) people/ citizens of India while accepting the laws and respecting each other’s rights.

[1] UDHR (1Nov 2021, 12:20 P.M ) https://nhrc.nic.in/sites/default/files/UDHR_Eng_0.pdf [2] Constitution of India (1Nov 2021, 1:20 P.M )https://legislative.gov.in/sites/default/files/COI.pdf [3] Constitution of India (1Nov 2021, 11: 00 P.M )https://legislative.gov.in/sites/default/files/COI.pdf [4] Religious Report (3 Nov 2021, 11:00 PAM ) https://www.everycrsreport.com/reports/R45303.html [5] Constitution of India (3 Nov 2021, 1:20 P.M )https://legislative.gov.in/sites/default/files/COI.pdf [6] UDHR (4 Nov 2021, 10:10 P.M ) https://nhrc.nic.in/sites/default/files/UDHR_Eng_0.pdf [7] National Crime Record Bureau India (8 Nov 2021, 2:00 P.M) https://ncrb.gov.in/en/Crime-in-India-2020 [8] Constitution of India (10 Nov 2021, 3:00 P.M )https://legislative.gov.in/sites/default/files/COI.pdf