Basic human rights have been guaranteed to Indians through the Fundamental Rights enshrined in our Constitution. The Right to Life, the Right Against Discrimination, the Right to Free Expression with reasonable restrictions (especially hate speech that can generate violence), the Right to Free Association and the Right to Freedom of Faith including the Right to freely propagate and even change one’s faith.
Justiciable rights
These are individual political rights and are justiciable (that is can be enforced if there is a violation) only against the State. Since many of these rights are violated by non-state actors, since the 1980s, special protection laws have had to be enforced to ensure the preservation of these rights. Particularly the anti-dowry legislation, the law against Sati (the barbaric practice of burning widows on the funeral pyres of their husbands), the Prevention of Atrocities against Dalits and Adivasis (1989) were passed after large sections of our society, weaker and discriminated against needed this protection. The failure to bring in and include special provisions in the Indian Penal Code and Code of Criminal Procedure to recognise that these systemic inequities exist, led to the non-application of sections of these laws by the police (investigating agency) and the prosecution since gender driven, caste and communal biases exist within these sections also.
Amendments in the law
The national outrage last year against the gruesome rape in Delhi led to key amendments in the criminal law to protect girls and women against gendered violence. Key amendments to the 1989 Atrocities Act have already been passed by the Parliament but have gone largely unnoticed. The move to enact a special law for the protection of religious, linguistic and ethnic minorities (the Prevention of Communal Violence-Justice and Reparations Bill 2014) has been bogged down by a vitriolic opposition that has thrived on religious division.
Apart from basic individual political rights, civil and economic rights are guaranteed under the Directive Principles of State Policy contained in Articles 36-51 of the Indian Constitution. Article 38[(1)] reads, “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” Article 39[(2) specifies that, “The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.]”
New laws and new rights
However laudable the objectives, the fact that these rights are not justifiable, that is not enforceable through the courts has led to a spate of legislation in the recent past. The Right to Information law of 2005 has revolutionized transparency in government functioning by entrusting the ordinary Indian with the right to know how critical decisions are taken. Through our organization, KHOJ we have managed to start three schools in
Marathi and Urdu medium started in a poorly developed town Mumbra in Thane district. Though the Thane Municipal Corporation had sanctioned the opening of the schools, the decision was not enforced until parents and activists got together making it happen.
The Right to Education Act 2009 is one more such effort to ensure that every Indian child receives free, good quality education from ages 6 to 14. Unfortunately this right should have been available to children from their birth because it is well known that like in the inter-dependency of the food chain, unless children have good pre-school education, fair and free access at age six is meaningless. A common school system with a good neighborhood school, where the middle classes and poor sit together in the classroom is the only way all will have a stake in quality. But today many of our schools are reluctant to even allow admission to 25 percent poor students.
Empowering the Commissions
Since the 1990s other institutions like the National Human Rights Commission (NHRC), the National Commission for Women (NCW), the National Minorities Commission (NCM) and the National Scheduled Castes and Tribes Commission have been set up as statutory bodies to monitor the quality of human rights in the country. We still need to work together to make these institutions vibrant and accountable, ensure that dynamic persons man them, ensure that they are receptive to complaints and do not get paralyzed by over burden. State Commissions need to mirror the national authorities to ensure the quality enforcement of human rights.
Eventually the state of human rights in any society is a reflection of the value its people give to their preservation. How are Indian families on the question of rights of their children? Do we treat girls and boys the same way? How do families deal with life choices and the freedom to deviate from beaten paths? What about our schools and the curriculum?
Fashionable as it is to blame the government and politicians for all the ills that abound, the case of the Delhi and Bombay rapes, as also the unfortunate Supreme Court recent decision on Section 377 of the Indian Penal Code reflect that the malaise is everywhere, a prejudicial and closed mindset prone to violence abounds. To correct this and make a vibrant culture that respects and celebrates the rights of one and all is today the real challenge for young India. A challenge that in the days and years ahead, all Indians will face.
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Teesta Setalvad
The writer is a human rights activist, journalist and educationist.[/column]