rights
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In the CLAT exam usually, the basic social welfare legislations & rights for the different segments of society become sensitive area from which questions may be asked which may include the right to education guaranteed by the government under article 21A, Legal Aid and upliftment of women enshrined in the Directive Principles of State Policy of the Constitution.

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Right to Education

“Prejudices, it is well known, are most difficult to eradicate from the heart whose soil has never been loosened or fertilized by education; they grow there, firm as weeds among rocks.” 
-Charlotte Bronte

India, with all its diverse cultures, traditions as well as its rightful share of superstitions happens to be a veritable bedlam of prejudices. When we seek to be a developed nation by 2020, spreading literacy to all its citizens comes as a pre-condition to it. For both these ends, i.e. to remove the prevailing prejudices and to be on the highway to becoming a developed nation, a fundamental right to education for children is the only way forward. 

In order to understand the importance of the said right, we need to look into its history. The International Bureau of Education was established in Geneva, in 1924 and was transformed into an inter-governmental organisation in 1929 as an international co-coordinating centre for institutions concerned with education.

A broader approach was chosen with the establishment of UNESCO in 1945. The preamble of the Universal Declaration of Human Rights, adopted on 10th December, 1998, states that: every individual and organ of the society…, shall strive by teaching and education to promote respect for these rights and freedoms…”

Article 26 (1) of UDHR proclaims that: Everyone has a right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.”

Article 26 (2) states that Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for maintenance of peace. The right to education has also been recognized by the International covenant on Economic, Social and Cultural Rights.

The Founding Fathers of the nation recognized the importance and significance of right to education, and therefore made it a constitutional goal, and placed it under chapter IV Directive Principle of State Policy of the Constitution of India. Article 45 of the Constitution requires state to make provisions within 10 years for free and compulsory education for all children until they complete the age of 14 years.

Further Article 46 declares that the state shall promote with special care the educational and economic interests of the weaker section of the people. It should be noted that the right to education has been given much importance as the makers of our constitution recognised it as one of the basic necessities for the democracy and that if the people were to be denied of that right, then democracy itself would be paralyzed.

Though it was categorically stated in the constitution that the state shall ensure that children receive free and compulsory education from the state, yet nothing substantial was ever done in this regard.

 Thankfully, the Judiciary showed keen interest in providing free and compulsory education to all the children below the age of fourteen years.

In case of Mohini Jain V State of Karnataka(1992), the Supreme Court held that right to education is a fundamental right under Article 21 of the Constitution. The right to education springs from right to life itself. The right to life under Article 21 and the dignity of the individual cannot fully be appreciated without the enjoyment of right to education. The court observed that the dignity of the individual cannot be assured unless the right to life is accompanied by the right to education.

In the case of Unnikrishnan vs. State of Andhra Pradesh (1993), the Supreme Court held that, the right to education is implicit in the right to life and personal liberty guaranteed by Article 21 and must be interpreted in the light of the Directive Principle of State Policy contained in Articles 41, 45 and 46. 

The Apex Court, however, limited the State obligation to provide educational facilities as follows. 
(i) Every Citizen of this Country has a right to free education until he completes the age of fourteen;

(ii) Beyond that stage, his right to education is subject to the limits of the economic capacity of the state.

The Government of India by Constitutional (86th Amendment Act) Act, 2002 added a new Article 21A which provides that “the state shall provide free and compulsory education to all children of the age of 6 to 14 years as the state may, by law determine.”

Furthermore, Article 51–A(k) was also added which imposes a ‘fundamental duty’ on parents to provide educational opportunities to their children in the age group of six to fourteen years.

Through this effort, the children of India gained the Fundamental Right to Education, first through Judgement made law and then through a Constitutional amendment. Unfortunately the introduction of Article 21–A watered down the Judgement of the Supreme Court in the Unnikrishnan Case.

A Right which was available to all children up to the age of 14 years was reduced to a right for children in the age group of 6 to 14 only through the restrictive language of the Constitutional amendment. Even more critical to the future of this right is the wording of Article 21A which finally leaves it to the state to provide ‘in such manner as the state may, by law, determine’.

By wording the provision in such a manner, education of the children has been left at the whims of the state governments. Moreover, it does not speak about the millions of children left out, belonging to the age group of 0-5 years. Another important feature which needs to be noticed is that the Constitution only ensures that the state shall provide primary education to the children up to the age of 14 years, and the secondary and higher education is contingent and conditional upon the economic capacity of the state.

The right to education will have any meaningful ramifications only if it percolates through all levels of education and reaches all sections of the population. 

For better execution of the above mentioned goals, The Right of Children to Free and Compulsory Education bill, 2009 was passed.

The salient features of the bill include:

  • Free and compulsory education to all children of India in the age group of six to 14 
  • No child shall be held back, expelled, or required to pass a board examination until completion of elementary education 
  • A child who completes elementary education (up to class 8) shall be awarded a certificate
  • Calls for a fixed student-teacher ratio
  • Mandatory 25% reservation for economically disadvantaged communities in admission to Class One in all private schools
  • Mandates improvement in quality of education
  • School teachers to acquire professional degree within five years or else will lose job
  • School infrastructure to be improved in three years, else recognition cancelled
  • Financial burden will be shared between state and central government

There might be certain drawbacks in this fundamental right, but it definitely is one positive step towards achieving the cherished goal of the founding fathers of the constitution, that of upholding the institution of democracy on the shoulders of an educated population of India.

Legal Aid

The idea of legal aid is the providing of free legal services to the poor who do not have enough resources to procure the services of a lawyer for varied purposes. The concept has its origin in France where a movement was kick started in 1851 to help the deprived class with legal services.

In India, the concept of legal aid is embodied in the Constitution under Article 39A. The concept of Legal Aid was institutionalized in 1987 by introducing the Legal Services Authorities Act which gave a statutory base to the legal aid activities in the country. The Act envisages a network of institutions under the supervision of the apex body called National Legal Services Authority at state and district levels.

The National Legal Services Authority or NALSA consists of the Chief Justice of India who shall be the Patron in Chief, a serving or retired Judge of the Supreme Court who will be the Executive Chairman (he will be nominated by the President of India) and any number of members with such qualifications as prescribed by the government in consultation with the Chief Justice of India.

The state legal service authority will be headed by the Chief Justice of the High Courts and a serving or retired judge of the High Court will act as the Executive Chairman. NALSA first came into being in 1995 and Dr. A. .S Anand became the first patron in chief in 1998. 

Women & Law

The recent Women’s Reservation Bill is definitely a milestone in the long journey of the women’s movement to gain legal rights in the Indian context, but it came about only after 14 years of languishing through the corridors of power, marked by high drama on all its outings in the Parliament.

Now, finally, women have a 33% reservation in the Parliament as well as the State Legislative Assemblies. As per article 368 of the Constitution; which lays down the procedure for the amendment of the Constitution; next, it has to be passed by the Lok Sabha, with not less than two thirds majority of the members present and voting. For this constitutional amendment to take place,  this amendment will have to be ratified by not less than one –half of the state legislatures, then  the President will have to give his assent to bring about  the said constitutional amendment. 

The demand for legal rights has long been a foundation of the women’s movement in India. Social reformers and activists in the women’s movement have all fought for women’s right and law reform. They have actively campaigned against any form of discrimination against women in law.

Despite the legal victories over the years, the social, political and economic status of women has shown little improvement. The Committee on the status of women, appointed by the Government of India in 1971, in their report, stated some basic but vital observations, which included:

  • That the equality of women was necessary as a basic condition for social, economic and political development of the nation.
  • Improvement in the employment opportunities and earning power of the women.
  • That society owed a special responsibility towards women due to their essential child-bearing function.
  • That any policy or movement for the emancipation and development of women have to be seen in the total context of the society, it has to form a part of the total movement for the removal of inequalities and oppressive social institutions.

Recognising the existence of institutionalised inequalities in the Indian society, the constitution itself has provided certain affirmative action by the state-empowerment of the state to adopt special measures, overriding the fundamental right to equality- in favour of women and children [Article 15(3)]. 

The various legislations and decisions in cases have led to a differential treatment of women according to their specific needs. For example; women can only be questioned at their residence and in presence of their family members.

Even at the time of arrest, no handcuffs are to be used without a Judge’s permission and it can be done only in the presence of a female constable. In the police station the women have a right to ask the Magistrate for their Medical Examination if they are beaten, abused or tortured by the Police. They have a right to request immediate medical examination on arrest.

Apart from the above mentioned concessions, specific laws and provisions have been formulated pertaining to violence against women.

Domestic violence

  1. The Protection of Women from Domestic Violence Act, 2005 came into force on October 26, 2006. `Domestic violence’ includes actual abuse or the threat of abuse that is physical, sexual, verbal, emotional and economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. One of the most important features of the Act is the woman’s right to secure housing. The Act provides for the woman’s right to reside in the matrimonial or shared household, whether or not she has any title or rights in the household. The other relief envisaged under the Act is that of the power of the court to pass protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the abused, attempting to communicate with the abused, isolating any assets used by both the parties and causing violence to the abused, her relatives and others who provide her assistance from the domestic violence. The Act by itself does not punish the perpetrator of domestic violence. But if a case discloses any offences punishable under IPC, CRPC or Dowry prohibition Act, the Magistrate may then, frame appropriate charges to either try the case himself or he may commit it to Sessions Court if he may deem fit. Another significant aspect is that the Act establishes adequate machinery to ensure effective protection through the Protection officer who is charged with the responsibility of taking expeditious steps for providing timely relief and it also grants authority to the Magistrate to give sufficient relief in the form of maintenance orders, custody orders and compensation. 
  2. A complaint can be filed under Section 498-A of IPC for any physical or mental harassment/ Torture / Abuse etc. n 1983, domestic violence was recognised as a specific criminal offence by the introduction of section 498-A into the Indian Penal Code. This section deals with cruelty by a husband or his family towards a married woman. Offences under Section 498-A are cognizable and non-bail able i.e., the Police Officer can arrest without a warrant and cannot grant bail themselves.  The accused Party has to obtain the Bail Order from the concerned Court.  
  3. Civil Remedy: Sometimes, the women due to personal reasons may not like to go for criminal remedy i.e., registration of FIR or filing the Criminal Complaint.  In the said circumstances, there are certain Civil Remedies are available in the Case of Domestic Violence: – Women can file a suit under Order VII Rule I of the Code of Civil Procedure in the Family Court. The court might restrain the spouse or / and his relatives from ousting the woman and her children from the matrimonial house. Her personal property is also restored to her.

Rape

Rape is an offence not against the Individual but like all the crimes in the Indian Penal Code, it is a crime against the State. Once the incident occurs, it has to be reported immediately without any delay to the police station of Jurisdiction. As far as possible the complaint must be given in writing containing all relevant facts in order to avoid manipulation. 

Then the police will investigate the matter and file charge sheet. The information, i.e., the person filling the complaint is entitled to a copy of the First Information Report (FIR).

The victim must undergo medical examination conducted by a female medical officer. The trial is conducted in a court of Sessions. Like all criminal matters the victim cannot have an independent lawyer, unless she makes an application for appointing a Special Prosecutor. Any advocate with 10 years of practice can be appointed as a Special Public Prosecutor.  
 

Sexual harassment at workplace

There is no specific law regarding sexual harassment, Supreme Court has laid down guidelines in Vishakha v. State of Rajasthan (AIR 1997 Supreme Court 3011) 

Any unwelcome sexually determined behaviour – direct or implicit viz.   

    • Physical contact and advances 
    • Demand or request for sexual favours 
    • Sexually coloured remarks 
    • Showing pornography 
    • Any other unwelcomed physical, verbal or non-verbal conduct of sexual nature. 

 The judgement also laid down certain duties for the employers, which include:

    • Duty to Prevent Commission of Acts of Sexual Harassment.
    • Duty to Provide Procedure for Resolution Complaint Mechanism headed by women.  
    • Duties of the committee:  – provide counselling, medical aid, legal aid, maintain confidentially and time bound inquiry.  

The Indecent Representation of Women (Prohibition ) Act, 1986

    • The Act prohibits depiction in any manner the figure of woman, body or any part thereof, in such a way that has the effect of being indecent or derogatory to or denigrating women.  
    • It primary aim of this act is to prevent women being depicted as sex objects in the media for commercial gain or prevent the co-modification of women.  
    • It penalizes persons who sell, hire, distribute, circulate or send by posts any books, pamphlets paper; slide, firm, writings, drawings, paintings, photograph figures or representation which contains indecent representation of women in any form.

The Medical Termination of Pregnancy Act, 1971

    • A pregnancy may be terminated by a Registered Medical Practitioner.  
      1. where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or 
      2. Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are. 

If the doctor/s is/are of the opinion that continuance of the pregnancy would involve a risk to the life of the pregnant woman or would cause grave injury to her physical or mental health. 

    • If the pregnancy is caused by rape and the anguish caused by such pregnancy is presumed to constitute a grave injury to the mental health of the pregnant woman.  
    • If the pregnancy occurs as a result of failure of family planning device, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Law on Molestation (Section 354 IPC) 

An assault or use of criminal force with intent to outrage the modesty of any woman shall be punished with imprisonment up to two years of fine or with both.  

Law on dowry

The Dowry Prohibition Act, 1961, prohibits the request, payment or acceptance of a dowry, “as consideration for the marriage” where “dowry” is defined as a gift demanded or given as a precondition for a marriage.

Gifts given without a precondition are not considered dowry, and are legal. Asking or giving of dowry can be punished by an imprisonment of up to six months, or a fine of up to Rs. 15000 or the amount of dowry whichever is higher and imprisonment up to 5 years. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states. 

Section 304B of the Indian Penal Code was inserted by amendment in 1986. In the Section, ‘dowry death‘ is defined as the death of a woman caused by any burns or bodily injury or which does not occur under normal circumstances within seven years of her marriage. For a woman’s death to be a dowry death, it must also be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.

If this is proved, the woman’s husband or relative is required to be deemed to have caused her death. Whoever commits dowry death is required to be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Law on Eve Teasing (Section 509 & 214 IPC) 

    • An intention to insult the modesty of a woman either by uttering any word or making any sound or gestures or exhibiting any object, is punished with imprisonment up to one year or with fine or both.  
    • Anyone who annoys other by doing obscene acts in public places, or sing songs or recites or utters and obscene songs, ballad or words in or near a public place shall be punished with imprisonment up to three months or with fine or with both. 

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