VULNERABLE GROUPS AND HUMAN RIGHTS

By | August 1, 2018
VULNERABLE GROUPS AND HUMAN RIGHTS

INTRODUCTION

There is a certain group of a human being which either by nature or because of deep-rooted custom are weak and vulnerable, such as a child, women, disabled persons, aged persons, migrant workers or persons belonging to a particular race. However, they were a human being possesses a human right and fundamental freedom. But their rights have been violated very frequently by the dominant section of the society.

A number of the convention have been concluded under the auspices of the United Nation to protect their rights which are as follows:

WOMEN

Women constitute almost half of the world population. However, their enjoyment of rights equally with that of men is far from satisfactory. In every society from ancient to modern times, women are considered as the property of men to serve their interests in both society and the domestic front. In order to halt such practices, the UN and the international community have evolved a number of methods to augment the rights of women on par with men without any kind of discrimination.

The most prominent human rights document concerning the human rights of women is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This convention became effective in September 1981, and at least 170 countries have approved the convention. The Preamble to the Convention on the Elimination Against Women explains that, despite the existence of other instruments, women still do not have equal rights with men, Discrimination Against Women continues to exists in every society.

The Convention under Article 1 defines the term discrimination against women as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by the women, irrespective of their marital status on a basis of equality of men and women, of human right and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

The Convention under Part III lays down a number of fields where States Parties are required to take steps to eliminate discrimination against which includes the following: –

  1. EDUCATION
  2. EMPLOYMENT
  3. HEALTH CARE
  4. ECONOMIC AND SOCIAL LIFE
  5. WOMEN IN RURAL AREAS
  6. EQUALITY BEFORE LAW
  7. MARRIAGE AND FAMILY RELATIONS

India has ratified the Convention on the Elimination of ALL Forms of Discrimination Against Women (1979). Ratification of the Convention obliges India to honor the obligations imposed by the Convention. In Madhu Kishwaar v. State of Bihar (AIR. 1996 p.2178), it was held that by the Supreme Court that the Convention on the Elimination of All Forms Of Discrimination Against Women is an integral scheme of the Fundamental Rights and the Directive Principles. Article 2(e) of CEDAW enjoins the States Parties to breathe life into the dry bones of the Constitution International Convention and the Protection of Human Rights Act, to prevent gender-based discrimination and to effectuate right to life including empowerment of economic, social and cultural rights. Article2(f) read with Articles 3,14 and 15 of CEDAW embodies the concomitant right to development as an integral scheme of the Indian Constitution and Human Right Act.

In a traditional society like India, where many women goddess is worshipped with a lot of devotion and respect, when it comes to equal treatment of their biological partners, both men and society keep them in low profile. Many times they are considered as servants of the home and are looked at as sexual objects. Their economic capacity is deprived to make them dependent on the male-dominated society. The traditional, economic, social and cultural disbeliefs and age-old customary practices of intimidating cruel practices that are prevalent in many parts of the world have to be halted with a welcome sign of considering them as partners in progress.

CHILD

The childhood is entitled to special care and assistance and child should grow up in a family environment, in an atmosphere of happiness, love, and understanding. The Convention on the Rights of the child (CRC) was adopted on November 20, 1989, and 196 states are party to it CRC provided a bill of rights for children. The CRC is the first globally binding treaty for the protection of children’s civil, political, economic, social and cultural rights. CRC, in fact, provided a bill of rights for children. The Convention under Article 1 states that a child means every human being below the age of eighteen years unless, under the law applicable to the child, a majority is attained earlier.

India has ratified the Convention on the Rights of the Child of 1989 which provided under Article 28 Para (1) for compulsory primary education which shall be available free to all. India has, therefore, an oblige action to implement the above provision of the Convention. No doubt, more children than ever before going to schools, free primary education to all children could not be provided due to other pressing social and economic problems which have surpassed importance due to other pressing social and economic problems which have surpassed importance due to a child.

Child labour in India

Child labour is conventionally defined to include all ‘economically active’ children in the age group 5-14 years. A person is treated as economically active or gainfully employed if she/he does work on a regular basis and receives remuneration for it.   The ILO defines ‘child labour’ as “work that deprives children of their childhood and their dignity, which hampers their access to education and the acquisition of skills, and which is performed under deplorable conditions harmful to their health and their development.”

The Indian constitution under article 24 provides that no child below the age of fourteen years shall be employed in any factory or mine or engaged in any other hazardous employment. The above provision was made in order to protect children from exploitation and to provide them with the education so that they may develop their personality and may live a dignified life. The framers of the Constitution were aware that the prohibition of labour alone is not enough and therefore article 45 was inserted which provided that the state shall endeavour age of fourteen years. Despite the above constitutional prohibition on child labour, children are working Large number I hazardous as well as non- hazardous work.

In India, the Employment of Children Act of 1938 was the first statutory enactment dealing with child labour. The ACT had prohibited employment of children below 14 years of age in the railways and other means of transport, However, the schedule appended into the act did not specify many other which are unquestionable hazardous.

The enactment of child labour (Prohibition and Regulation) Act of 1986 is indeed the bold step to prohibit the Child labour. Section 3 of the Act prohibited employment of children in certain occupations and processes. Section 14 of the Act has provided for punishment for up to one year (minimum being three months) or fine up to Rs. 20000.00 (minimum being Ten Thousand) or both to one who employs or permits any a child to work, in contravention of a provision of Section 3.

The Act was limited in scope in the sense that children can continue to work if they are part of family or labour. Further, children may continue to work in industries which are not specified in Part A and Part B of the schedule appended to the Act. The Act also did not lay as to the rehabilitation of the child once the employer is prosecuted.

In order to expand the scope, the ban on child labour in the year 2006 a notification was issued by the Government which amended the Child Labour (Prohibited employment of Children under the age of 14 as domestic servants or in dhabas (roadside eateries) restaurants, hotels, tea shops, resorts, spas and recreational centers. The ban is accompanied by provisions imposing punishment which include a jail term up to one year and fine of RS 20,000/- The above notification came into force from October 11, 2006. It is to note that, the list of Professions that are deemed hazardous was further expanded in 2008 through a notification issued by the Ministry of Labour and Employment which included 15 hazardous occupations and 9 processes on the list of 57 practices prohibited under the Act.

 M.C. Mehta v. State of Tamil Nadu (AIR SC 1997) wherein it was ruled in Para 27 that the offending employer must pay compensation of Rs. 20,000 for every child employed in contravention of the provisions of the Act and the Inspectors, whose appointment is visualized by Section 17 have to secure compliance with this provision. The said sum could be deposited in a fund to be known as the Child Labour Rehabilitation-cum-Welfare Fund.

It was held that an order for paying compensation is in terms of the direction of the Supreme Court and that cannot be confused with a leavy of fine by way of penalty under Section 14 of the Act. The penal fine is different from compensation.

The prevention of child labour is a gigantic task. The only way by which it can be prevented is to provide education to the children.it is one of the most effective instruments for the prevention of child labour. Children are not expenses they are an investment. They shape the future of the country. It is the duty of the parents, NGO’s and the government to see that every child goes to school.

MIGRANT  WORKERS

Migrants are a particularly vulnerable group and find their rights routinely violated. In order to eliminate widespread discrimination against the migrant workers and members of their families, a Convention was adopted by the General Assembly on December 18, 1990, which knowns as the International Convention on the Protection of the Rights of all migrants’ workers and members of their families. The Convention came into force on July 1, 2003, in accordance with Article 87 Para 1 of the Convention. As on February 3, 2016, the Convention had 48 States Parties. The 93 Article Convention is divided into nine parts which cover its scope and definitions, non- discrimination, human rights of all migrant workers irrespective of their status, other rights of those who are documented or in a ‘regular situation’.

A migrant worker has been defined under Article 2 of the Convention as a person who is to been engaged or has been engaged in a remunerated activity in a State of which he or she is not a national. The expression ‘member of the family’ has also been defined under Article 4 as persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognized as member of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned.

 REFUGEE

The term refugee has derived from a French word refugee which means to flee for safety. Customary International Law did not define the term refugee but it treated them like aliens. Ordinarily, a refugee is referred to those persons who leave their states in which they have permanent residences to escape persecution or military action. The  Convention Relating to the Status of Refugee of 1951  (the Refugee Convention) defines refugee as a persons as a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country or return there because there is a fear of persecution…

The reasons for persecution must be because of one of the five grounds listed in article 1 A (2) of the Refugee Convention: race, religion, nationality, membership of a particular social group or political opinion. Persecution based on any other ground will not be considered.

The race is used in the broadest sense and includes ethnic groups and social groups of common descent.

Religion also has a broad meaning, including identification with a group that tends to share common traditions or beliefs, as well as the active practice of religion.

Nationality includes an individual’s citizenship. Persecution of ethnic, linguistic and cultural groups within a population also may be termed persecution based on nationality.

A particular social group refers to people who share a similar background, habits or social status. This category often overlaps with persecution based on one of the other four grounds. It has applied to families of capitalists, landowners, homosexuals, entrepreneurs and former members of the military.

The political opinion refers to ideas not tolerated by the authorities, including opinions critical of government policies and methods. It includes opinions attributed to individuals (i.e., the authorities think a person has a certain political opinion) even if the individual does not, in fact, hold that opinion. Individuals who conceal their political opinions until after they have fled their countries may qualify for refugee status if they can show that their views are likely to subject them to persecution if they return home.

Definitions come into play when countries and organizations attempt to determine who is and who is not a refugee. A special category is people who may have been forced to flee their homes for the same reasons as refugees but they have not crossed an international border. These people are called internally displaced persons. By the end of 2000, there were approximately 11.5 million refugees around the world who had fled their countries for a variety of reasons and an even greater number of internally displaced persons, between 20 – 25 million, who had abandoned their homes for similar reasons. Increasingly the majority of current conflicts in the world involve disputes between political or ethnic groups within countries rather than wars between countries. Given this trend, the number of persons caught up in conflicts in their own countries and forced to leave their homes is likely to increase.

Convention Relating to the Status Of Refugees  (1951) This was the first international agreement covering the most fundamental aspects of a refugee’s life. It spelt out a set of human rights that should be at least equivalent to freedoms enjoyed by foreign nationals living legally in a given country and in many cases those of citizens of that state. It recognized the international scope of refugee crises and necessity of international cooperation — including burden-sharing among states — in tackling the problem. As of 1 October 2002, 141 countries had ratified the Refugee Convention.

Articles 12 – 30 of the Refugee Convention set out the rights which individuals are entitled to once they have been recognised as Convention refugees:

  1. All refugees must be granted identity papers and travel documents that allow them to travel outside the country
  2. Refugees must receive the same treatment as nationals of the receiving country.
  3. Refugees must receive the most favourable treatment provided to nationals of a foreign country.
  4. Refugees must receive the most favourable treatment possible, which must be at least as favourable to that accorded aliens generally in the same circumstances.
  5. Refugees must receive the same treatment as that accorded to aliens.

REFUGEES IN INDIA

India is neither a party to the Refugee Convention of 1951 nor its Protocol of 1966. Although the question of being a Party to the Refugee Convention has been considered by Government of India time to time. India in the past has not enacted any domestic Legislation in relation to refugees despite the fact that it has invariably provided refugee to the people fleeing from countries like Tibet, Bangladesh, Sri Lanka and Afghanistan. It has been estimated that there are approximately 1,76,000 refugees in India, the vast majority of whom are Afghans. In the absence of any law, it is not clear as to what shall be the legal status of refugees and what rights shall accrue to them. It is also not clear how refugee shall be properly identified. The legislation is likely to have a far-reaching impact on the refugee’s issues but no serious attempt has been made to enact any law. It is desirable that national legislation is enacted to provide rights to refugees as they are also human beings. The National Human Rights Commission is of the opinion that, the drafting and adoption of such laws are essential.  The Indian Constitution provides that some of the Fundamental rights of refugees. Namely, right to equality (Article 14), right to life and personal liberty (Article 21), right to protection under arbitrary arrest (Article 22), right to protect in respect of conviction of offences (Article 20), freedom of religion (Article 25), right to approach Supreme Court for enforcement of Fundamental Rights (Article 32), are as much available to non-citizens, including refugees, as they are to citizens.

The constitutional rights protect the human rights of the refugee to live with dignity. The liberal interpretation that Article 21 has received now includes right against solitary confinement, right against custodial violence, right to medical assistance and shelter.

The Supreme Court has taken recourse to Article 21 of the Constitution in the absence of legislation to regulate and justify the stay of refugees in India. In NHRC v. State of Arunachal Pradesh (AIR SC, 1996 p.1234), the Government of Arunachal Pradesh was asked to perform the duty of safeguarding the life, health, and well-being of Chakma’s residing in the State and that their application for citizenship should be forwarded to the authorities concerned and not withheld. In various other cases, it was held that refugees should not be subjected to detention or deportation and that they are entitled to approach the U.N High Commissioner for grant of refugee status.

The solution to treat refugees with dignity in India is to either ratify the 1951 Convention and incorporate it into domestic law or enact a uniform legislation specifically for refugees so that it is not left to the discretion of the executive and the judiciary to decide their fate.

ENFORCED DISAPPEARANCE

Enforced disappearance may be defined as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the facts or Whereabouts of the disappeared persons which places such a person outside the protection of the law.

Enforced disappearance constitutes a crime and the United Nations has been making efforts to prevents disappearance. The General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance in its Resolution 47/133 of December 18, 1992. Later, on a Convention for the Protection of All Persons from Enforced Disappearance was adopted which came into force on December 23, 2010. The Convention provided that no one shall be subjected to enforced disappearance (Article 1, Para 1) Article 1 Para 2 lays down that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification for enforced disappearance.

Enforced Disappearance Constitutes a crime against humanity and each State party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.

STATELESS PERSONS

When a person does not possess the nationality of any state, he is referred to as a stateless person. A person may be without nationality knowingly or unknowingly, intentionally or through no fault of his own. All individual who have lost their original nationality without having acquired another, is, in fact, stateless persons. A stateless person does not enjoy those rights which are conferred to a person in International Law. For instance, their interest is not protected by any State, they are refused enjoyment of rights which are dependent on reciprocity.

The Convention relating the Status of Stateless Persons was adopted on September 28, 1954, by a Conference of Plenipotentiaries convened by the Economic and Social Council to regulate and improve the status of stateless persons. The Convention came into force on June 6, 1960. Presently, the Convention has 44 States Parties. The Convention defined the term Stateless person as a person who is not considered as nationals under the operation of its law. The Convention gave such persons’ judicial status but no provision was made to reduce or eliminate statelessness. Thus on December 13, 1975, the Convention on the reduction of Statelessness was adopted. The Convention under Article 1 stated that a Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless: (a) at birth, by operation of laws, or (b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned. Para 3 of Article 1 further stated that a child born in wedlock in the territory of a Contracting State, whose mother has the nationality of that state, shall acquire at birth that nationality if it otherwise would be stateless.

DISABLED PERSONS

There are 650 million men, women and children in the World who live with either mental or physical disabilities. Most of them live in the Developing World. They suffer from discrimination and lower standards of living. They are very often denied the basic human rights. They are denied basic educational opportunities and often given menial or poorly paid jobs. Social attitudes exclude them from cultural life and normal social relations. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

The General Assembly on December 13, 2006, adopted by consensus the Convention on the Rights of Persons with Disabilities. The Convention came into force on May 3, 2008, after its ratification by 20 States. As on February 3, 2016, the Convention had 161 States Parties.

The Convention laid down a number of rights to be provided to the persons of disabilities such as right to life, equal recognition before the law, access to justice, liberty and security of persons, freedom from torture or cruel, inhuman or degrading treatment or punishment, freedom from exploitation, violence and access to information, respect for privacy etc.

The Convention also stipulated that persons with disabilities shall have the right to education, health, work, employment and an adequate standard of living. They shall participate in political and public life and in cultural life on the equal basis with others.

It is to be noted that the Convention did not create new rights for the persons with disabilities. However, it specifically mentioned them so that States Parties to the Convention may raise awareness in the society to foster respect for the rights and dignity of persons with disabilities.

INDIGENOUS PEOPLE

Indigenous People or Aboriginal Peoples are those who were living on their lands before settlers came from elsewhere. They are the descendants of those who inhabited a country or a geographical region at the time where peoples of different cultures or ethnic ­­­­­­­­­­­­­­­­­­ origin arrived, the new arrivals later becoming dominant through conquest, occupation, settlement or other means, thus they consider themselves to distinct from other section of the societies. Indigenous people are also called “first People” tribal peoples, aboriginals, and autochthons. It has been estimated the number of indigenous people is approximately 370 million and they are spread across 70 countries from Australia to the Arctic. More than half of them live China and India, some 10 million in Myanmar (Burma) and 30 million in South America.

Indigenous and Tribal Peoples in many parts of the World do not enjoy their fundamental rights in the State in which they live to the same degree as the rest of the Population. Presently, they are no dominant section of the Society because of their Poverty and illiteracy. They are required to be provided for their cultural protection on land and human rights by their respective States.

International action to protect the human rights of the indigenous peoples has been limited. International Labour Organisations (ILO) for the first time in 1953 completed a study that led to the adoption of a Convention in 1953 on the rights of Indigenous and Tribal Populations Convention (NO. 107). The  Convention was least effective to provide rights to the indigenous peoples and therefore the ILO in 1989 adopted another Convention which is knowns as the convention (No.169) concerning indigenous and tribal peoples in Independent Countries which came into force on September 5, 1991. The General Assembly on September 13, 2007, adopted a landmark Declaration on Rights of Indigenous Peoples.

OLDER PERSONS

The United Nations is concerned not only with the quality of the life of human beings, but it is equally concerned with the longevity of the human beings. The United Nation is committed to helping those countries which are facing the challenge for the needs of elderly persons and using effectively their contribution to development.

The principle for Older Persons

The General Assembly on December 16, 1991, by a resolution, adopted a set of 18 Principles for older persons and government were encouraged to incorporate the principle into their national programs.

These principles were related to the independence, participation, care, self-fulfilment and the dignity of the older persons. Some of the principles are as follows:

  1. Older persons should have the opportunity to work or to have access to other income generating opportunities.
  2. Older persons should remain integrated with society, participate actively in the formulation and implementation of policies that directly affect their well-being and share their knowledge and skills with younger generations.
  3. Older persons should have access to health care to help them to maintain or regain the optimum level of physical, mental and emotional well-being and to prevent or delay the onset of illness.
  4. Older persons should be able to pursue opportunities for the full development of their potential.
  5. Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse.

The Second World Assembly on Ageing took place in Madrid from 8 to 12 April 2002. The participating countries adopted two key documents: A Political Declaration and the Madrid International Plan of Action on Ageing, 2002. Both documents included commitments from Governments to devise and implement measures to address the challenges posed by ageing. The documents also put forward over 100 recommendations for action based on three priority themes: older persons and development; advancing health and well-being into old age, and ensuring enabling and supportive environments. The Assembly gave the United Nations regional commissions responsibility for translating the International Plan of Action on Ageing into regional action plans reflecting, inter alia, the demographic, economic and cultural specificities of each region and serving as a basis for implementing the recommendation.

PERSONS BELONGING TO NATIONAL  OR ETHNIC, RELIGIOUS AND  LINGUISTIC  MINORITIES 

The Convention on Civil and Political Rights under Article 27 provided that persons belonging to ethnic, religious and linguistic minorities shall not be denied the right to enjoy their own culture, to profess and practice their own religion, or to use their own language. Inspired by the above, the General Assembly on December 18, 1992, adopted the Declaration on the Rights of Persons belonging to National or Ethnic Religious or Linguistic Minorities. The Declaration proclaimed that promoting and Protecting the rights of such minorities contribute to the political and social stability of states in which they live. The declaration consisting of nine Articles stated the following rights to such persons.

  1. The existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories bylaws and other measures. (ARTICLE1)
  2. Persons belonging to minorities have the right to enjoy their own culture to profess and practice their own religion and use their own language. (ARTICLE 2)
  3. Persons belonging to minorities have the right to participate in effectively cultural, religious social, economic and public life. (Para 2, Article 2)
  4. Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minorities to which they belong or to regions in which they live, in a manner not incompatible with national legislation (Para 3, Article 2).
  5. Persons belonging to minorities have the right to establish and maintain their own associations (Para 4, Article 2).
  6. Persons belonging to minorities have the right to establish and maintain, without any discrimination, free and peaceful contacts with other members of their groups and with persons belonging to other minorities. (Para 5, Article2).
  7. Minorities may exercise their right to establish and maintain without any discrimination, free and peaceful contacts with other members of their groups and with persons belonging to other minorities (Para 5, Article 2).
  8. States should provide adequate opportunities for persons belonging to minorities to learn their mother tongue and to participate fully in the economic progress and development in their country (Article 4).

States are required to co-operate on questions relating to persons belonging to minorities, inter alia, exchanging information and experience, in order to promote mutual understanding and confidence. Measures were taken by the state to ensure the effective enjoyment of the rights shall not prima facie be considered contrary to the principle of equality contained in Universal Declaration of Human Rights.

BY AANCHAL KALRA

( LLOYD LAW COLLEGE)

SOURCES


Disclaimer: This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should – where appropriate – contact us directly with your specific query or seek advice from qualified professionals only. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice.


Click Here for more Articles

Click Here to write your own Blog/Article on Legal Bites

What did I miss? Don't forget to leave your valuable feedback