Constitutional rights and safeguards provided to the vulnerable groups in India
Human Rights are the basic right which is being provided by every constitution of every State and every individual in this globe born with the inherent right of Human Right. They are most basic right which an individual can ask to have from its nation. They have never given away any kind of unfairness towards any individual or group of people or they haven’t been any discrimination made on the basis of caste, sex, religion etc with any individual under any nation. . They only sponsor the welfare and well-being of all persons with equal behaviour.. However, the socio-economic, political and cultural diversities, prevailing in each state across the world, and politics of the nation states, take away the free effect of human rights to a certain number of people.
The major problem faced by every developing nation is that the large number of human sector falls under the poverty line. They are deprived of adequate access in the basic needs of life such as health, education, housing, food, security, employment, justice and equity which also include issues related to sustainable livelihood, social and political participation of the vulnerable groups exists as the major problem in the developing nations.
All social groups should have equal access to the services provided by the State and equal opportunity should be provided for their upward economic and social mobility. The government of every nation should also ensure that should not be any sort of discrimination against any section of our society. In India, certain social groups such as the SCs, STs, OBCs and Minorities have in the past been deprived and vulnerable for human rights. There are certain other groups which may be discriminated against and which suffer from handicaps and the groups include persons with disabilities, older persons, street children, beggars and victims of substance abuse. Our Constitution contains various provisions for the enlargement of such marginalized groups, for instance, Article 341 for SCs, Article 342 for STs, Article 340 for OBCs, Article 30 which provides the right to minorities to establish and administer educational institutions, and various other statutes. Their individual and collective growth, however, cannot be ensured without improving their surroundings and providing clean drinking water, toilets and educational opportunities.
The Constitution of India guaranteed to all the people of India the civil, political, economic, social, and cultural rights for their realization by all sections of the polity without any kind of discrimination. However, due to poverty, customary and cultural practices prevailing in the country, there have not much opportunity offered to various groups and which lead to deprive them of beig treated equally as the other sections of the society. There are various disadvantaged groups of people such as women, children, Scheduled Castes, Scheduled Tribes, Linguistic Minorities, Religious Minorities, Sexual Minorities etc. In order to expand their rights, the Constitution of India has provided a number of concessions to protect them from exploitation by other groups.
- VULNERABLE GROUPS:
The meaning of vulnerable is highly evasive. There does not any specific definition of this word or rather this term hasn’t been anywhere specifically defined in any statute precisely. Vulnerable groups are those groups of people who may find it difficult to lead a comfortable life, and lack developmental opportunities due to their disadvantageous position. However, in common understanding, people who are easily susceptible to physical or emotional injury, or subject to unnecessary criticism, or in a less valuable position in any society may be defined as vulnerable people. Further, due to adverse socio-economical, cultural, and other practices present in each society, they find it difficult many a times to exercise their human rights fully.
Vulnerable groups are the groups which would be vulnerable under any circumstances (e.g. where the adults are unable to provide an adequate livelihood for the household for reasons of disability, illness, age or some other characteristic), and groups whose resource endowment is inadequate to provide sufficient income from any available source.
In India there are multiple socio-economic disadvantages that members of particular groups experience which limits their access to health and healthcare. Besides there are multiple and complex factors of vulnerability with different layers and more often than once it cannot be analysed in isolation. The present document is based on some of the prominent factors on the basis of which individuals or members of groups are discriminated in India, i.e., structural factors, age, disability and discrimination that act as barriers to health and healthcare. The vulnerable groups that face discrimination include- Women, Scheduled Castes (SC), Scheduled Tribes (ST), Children, Aged, Disabled, Poor migrants, People living with HIV/AIDS and Sexual Minorities. Sometimes each group faces multiple barriers due to their multiple identities. For example, in a patriarchal society, disabled women face double discrimination of being a women and being disabled.
3.VARIOUS VULNERABLE GROUPS IN INDIA:
(i).Women and Girls:
Women and girls are the most essential part of our society as there cannot be any society exist without them but there are many sectors where they are not considered as humans also and for them their does not exists the concept of human rights as they are not aware about their rights. The scenario in the developing countries is quite different as the society is changing day by day and as we are adopting each other cultures and in a modern era they are getting aware of about their human rights and they are in a more disadvantageous position due to abject poverty, other social, cultural, and derogatory customary practices adopted in each country. Women face double discrimination being members of specific caste, class or ethnic group apart from experiencing gendered vulnerabilities as they have little control on the resources . In India, early marriage and childbearing affects women’s health adversely. About 28 per cent of girls in India get married below the legal age and experience pregnancy. These have serious repercussion on the health of women. Maternal mortality is very high in India. The average maternal mortality ratio at the national level is 540 deaths per 100,000 live births. It varies between states and regions, i.e., rural-urban. The rural MMR is 617 deaths of women age between 15-49 years per one lakh live births as compared to 267 maternal deaths per one lakh live births among the urban population and the end result of that is the death ratio is quite high. A large percentage of women is reported. In India, social norms and cultural practices are embedded in a highly patriarchal social order where women are expected to hold on to strict gender roles about what they can and cannot do and to have received no antenatal care and there are various institutions which have delivered lowest among women from the lower economic class as against those from the higher class. During infancy and growing years a girl child faces different forms of violence like infanticide, neglect of nutrition needs, education and healthcare. As adults they face violence due to unwanted pregnancies, domestic violence, sexual abuse at the workplace and sexual violence including marital rape and honour killings. In the case of internal migration in India, they suffer greater vulnerability due to reduced economic choices and lack of social support in the new area of destination.
Major schemes for Women– · Indira Gandhi Matritva Sahyog Yojana (IGMSY) · Rajiv Gandhi Scheme for Empowerment of Adolescent Girls (RGSEAG) · Swadhar Yojna · STEP (Support to Training and Employment Programme for Women) (20th October 2005) · Stree Shakti Puraskaar Yojna · Short Stay Home For Women and Girls (SSH) · UJJAWALA : A Comprehensive Scheme for Prevention of trafficking and Rescue, Rehabilitation and Re-integration of Victims of Trafficking and Commercial Sexual Exploitation · General Grant-in-Aid Scheme in the field of Women and Child Development.
(ii) STRUCTURAL DISCRIMINATION (Scheduled Castes, Scheduled Castes, Dalits, Scheduled Tribes)
Every society is curtailed with different groups and every group has its own rules, regulations and norms. There is no such particular definition and essentials elements that will be considered as norms. The norms can be understood as things which act as structural barriers giving rise to various forms of inequality. Structural norms are attached to the different relationships between the subordinate and the dominant group in every society. A group’s status may for example, be determined on the basis of gender, ethnic origin, skin colour, etc. The Access to health and healthcare for the subordinate groups is reduced due to the structural barriers. The concept of Structural discrimination can be understand as the rules, norms, which are generally being accepted approaches and behaviours in institutions and other social structures that amounts to certain obstacles for subordinate groups to the equal rights and opportunities possessed by dominant groups. Such discrimination may be visible or invisible, and it may be intentional or unintentional. The right to health obliges governments to ensure that “health facilities, goods and services are accessible to all especially the most vulnerable group or marginalized section of the population, in law and in fact, without discrimination. In India, members of gender, caste, class, and ethnic identity practice structural discrimination as an impact on their health and access to healthcare. Among the Scheduled Castes and the Scheduled Tribes the most vulnerable are women, children, aged, those living with HIV/AIDS, mental illness and disability. These groups face rigorous forms of discrimination that denies them access to cure and prevents them from achieving a better health status. In India, Girl child and women from the marginalized groups are more vulnerable to violence. The dropout and illiteracy rates among them are high. Early marriage, trafficking, forced prostitution and other forms of exploitation are also reportedly high among them. Further, there is a flawed, inflexible notion that they lack merit and are incompatible for formal employment and due to the lack of access to fixed sources of income and high incidence of wage labour associated with high rate of under-employment and low wages SC households are often faced with low incomes and high incidence of poverty. In 2004–05, about 36.80% of SC persons were BPL in rural areas as compared to only 28.30% for others (non-SC/ST
Constitutional aspect of these vulnerable groups:
There are various constitutional provisions which are dealing with the problem of discrimination on the basis of Caste. They are as follows:
Art. 15(4) : Clause 4 of article 15 is the fountain head of all provisions regarding compensatory discrimination for SCs/STs. This clause was added in the first amendment to the constitution in 1951 after the SC judgement in the case of Champakam Dorairajan V. State of Madras. It says thus, “Nothing in this article or in article 29(2) shall prevent the state from making any provisions for the advancement of any socially and economically backward classes of citizens or for Scheduled Castes and Scheduled Tribes.” This clause started the era of reservations in India.
The basic aim or objective of making these articles is to make the socially and economically people to fall in the same category as the other sections of the society is treated and make them feel comfortable about their position in the society. In the case of Balaji V. State of Mysore, the SC held that reservation cannot be more than 50%. Further, that Art. 15(4) talks about backward classes and not backward castes thus caste is not the only criterion for backwardness.
Finally, in the case of Indra Sawhney V. Union of India, SC upheld the decision given under Balaji V. State of Mysore that reservation should not exceed 50% except only in special circumstances. It further held that it is valid to sub-categorize the reservation between backward and more backward classes. However, total should still not exceed 50%. It also held that the carry forward rule is valid as long as reservation does not exceed 50%.
Art. 15(5): This clause was added in 93rd amendment in 2005 and allows the state to make special provisions for backward classes or SCs or STs for admissions in private educational institutions, aided or unaided.
(iii).VULNERABILITY OF CHILDREN AND AGED
Mortality and morbidity among children are caused and compounded by poverty, their sex and caste position in society. All these will lead to have penalty on their nutrition intake, access to healthcare, environment and education. The factors which directly impacts are as follows: food security, education of parents and their access to correct health information and access to health care facilities. The important causes of death among children from poor families is Malnutrition and chronic hunger which include Diarrhoea, acute respiratory diseases, malaria and measles and most of which are either avoidable or treatable with low-cost intervention. The vulnerability among the elderly is not only due to an increased incidence of illness and disability, but also due to their economic dependency upon their spouses, children and other younger family members. According to the 2001 census, 33.1 per cent of the elderly in India live without their spouses.
Child faces discrimination and disparity access to nutritious food and gender based aggression is evident from the falling sex ratio and the use of technologies to get rid of or abolish the girl child. Surrounded by children the health indicators vary between the different social groups. High mortality and morbidity is reported among children from Scheduled Castes, Scheduled Tribes and Other Backward Classes as compared to the general population. Infant mortality is higher among the rural population (Rural-62, Urban 42 per one thousand live births in the last five years, National Family Health Survey 3, Fact Sheets). The injection coverage is very poor among children who live in rural India. Injection coverage among children between 12-23 months who have received the suggested vaccines is only 39 per cent in rural India in contrast to 58 per cent in urban India. In India, children’s vulnerabilities and practice to violations of their protection rights remain spread and multiple in nature. The manifestations of these violations are various, ranging from child labour, child trafficking, to commercial sexual exploitation and many other forms of violence and abuse. With an estimated 12.6 million children engaged in hazardous occupations. In India, however there is a huge gap in the industry-specific and exposure-specific epidemiological evidence. Most of the studies are small-scale and community-based studies and the population is growing promptly and is emerging as a serious area of concern for the government and the policy planners. According to data on the age of India’s population, in Census 2001, there are a little over 76.6 million people above 60 years, constituting 7.2 per cent of the population. The number of people over 60 years in 1991 was 6.8 per cent of the country’s population.
Constitutional provisions of this group:
Art. 19 A: Education up to 14 yrs has been made a fundamental right. Thus, the state is required to provide school education to children so as to maintain the integrity of the principle under which these laws are made and also to maintain the equal treatment of child under the constitution and in the eyes of law as well as society.
In the case of Unni Krishnan V. State of AP, SC held that right to education for children between 6 to 14 yrs of age is a fundamental right as it flows from Right to Life. After this decision, education was made a fundamental right explicitly through 86th amendment in 2002. Art. 24: Children have a fundamental right against exploitation and it is prohibited to employ children below 14 yrs of age in factories and any hazardous processes. Recently the list of hazardous processes has been update to include domestic, hotel, and restaurant work. Several PILs have been filed in the benefit of children. For example, MC Mehta V. State of TN, SC has held that children cannot be employed in match factories or which are directly connected with the process as it is hazardous for the children.
Art. 45: Urges the state to provide early childhood care and education for children up to 6 yrs of age. Age and high levels of economic reliance combine to create high levels of vulnerability to chronic poverty. While old age pension schemes are in place neither the small amounts made available nor the aggravated form of accessing them make this a resolution to the trouble of chronic poverty between the elderly. With the high incidence of chronic ailments and health care needs of the elderly, declining family size, migration and breakdown of traditional family structures that provided support, this group of the population is extremely vulnerable to poverty.
(iv).VULNERABILITY DUE TO DISABILITY
Disability poses greater challenges in obtaining the needed range of services. Persons with disabilities face several forms of discrimination and have compressed access to education, employment and other socioeconomic opportunities. The percentage of disabled inhabitants to the total inhabitants is about 2.13 per cent. There are two broad categories of disability, one is acquired which means disability acquired because of accidents and medical reasons and the other is disability since the origin of birth. According to the National Sample Survey Organisation Report (58th Round), about one-third of the disabled population have disability since their birth and there are various interstate and interregional differences in the disabled population. The disabled face various types of barriers while looking for access to health and health services. In the middle of those who are disabled women, children and aged are more vulnerable and need attention. Five out of ten leading causes of disability and premature death worldwide are due to psychiatric conditions which also include deadly diseases like Depression and anxiety are the most common mental disorders. The other area of concern is the mental health of women and the elderly. Neurotic and stress connected cases are allegedly higher among women than men, though among men there is exposure of higher number of cases of serious illness. In spite of such proportion of mental illness, the health care necessities for persons with mental illness are very poor in India. People with mental illness face severe forms of human rights violations. There is social stigma attached to mental illness. Women with mental illness are subjected to physical and sexual abuse both within families and the institutions. Psychiatric medicines are complete only in a few primary health centres, community centres and district hospitals. Services like child guidance and rehabilitative services are also obtainable only in mental hospitals and in big cities. Several states do not have mental hospitals. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, commonly referred as the PWD Act came into force on Feb. 7, 1996. Mental illness has been considered in the Act, but there is no reference to any provision within the Act to be given or set aside for people with mental illness.
Constitutional provisions of this group:
The Constitution of India ensures equality, freedom, justice and dignity of all individuals and implicitly mandates an inclusive society for all including the persons with disabilities. The Constitution in the schedule of subjects lays direct responsibility of the empowerment of the persons with disabilities on the State Governments Therefore, the primary responsibility to empower the persons with disabilities rests with the State Governments.
Under Article 253 of the Constitution read with item No. 13 of the Union List, the Government of India enacted “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”, in the effort to ensure equal opportunities for persons with disabilities and their full participation in nation-building. The Act extends to whole of India except the State of Jammu and Kashmir. The Government of Jammu & Kashmir has enacted “The Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation Act, 1998.”
(v).VULNERABILITY DUE TO MIGRATION
Migrants and their denial of human rights have to be understood from the dynamic contradictions within and across countries—from skilled and voluntary migrants at one end of the variety to the poor and unskilled migrant population on the other end designed to be excluded from the fabric of the host nation. The correlation of human rights and migration is a depressing one and also has bad experiences all the way through the migratory ‘life cycle’, in areas of origin, journey or transit and destination. The correlation of health and human rights has becomes even more complex because of irregular or illegal migration clashes with the interest of the area of target. All these things have direct impact on the rights of individual migrants. India has a large number of international migrants. Neighbouring countries are the major sources of foundation of the international migrants to India with the size of these migrants approaching from Bangladesh, followed by Pakistan and Nepal, but all these migrants who have entered the country legally. Migrants and mobile people become more vulnerable to HIV/AIDS and it creates the situation of encountered and behaviours possibly occupied in during the mobility or migration that increases vulnerability and risk. Migrant and mobile people may have little or no access to HIV information, anticipation, health services. This creates a negatively impact on their ability to access suitable treatment and care and also there is stigma linked with mental illness due to which they practice discrimination in many other aspects of their lives which are affecting their various rights such as right to employment, adequate housing, education etc. There are many who enter the country illegally and are one of the most vulnerable to abuse and exploitation by employers, migration agents, corrupt bureaucrats and criminal gangs. In many situations, migrants do not know what rights they are entitled to and still less how to claim them hence the cases of abuse go unrecorded. Another area where development is rampant and is forced labour which takes place in the illicit underground economy and hence tends to escape national statistics. Illegal migrants often live on the margins of society, trying to avoid contact with authorities and have little or no legal access to prevention and healthcare services. They tend to face higher risks of exposure to have unsafe working conditions. Many frequent they do not approach the health system of the host countries for fear of their status being discovered. Internal migration of poor labourers has also been on the rise in India.
(vi).VULNERABILITY DUE TO STIGMA AND DISCRIMINATION
People living with HIV/AIDS, Sexual Minorities:
There are certain attitudes and perceptions towards certain kinds of illnesses and sexual orientation which results in discrimination against individuals/groups. This section faces the stigma and discrimination faced by the People living with HIV/AIDS and Sexual Minorities. These groups face various kinds of discrimination and have reduced access to healthcare. Stigma is the supreme barrier of health and healthcare in their context. Negative responses and attitude of the society towards these groups are strongly linked to people’s observation of the causes of HIV / AIDS and sexual orientation. The rights of People living with HIV/AIDS are violated when they are deprived of access to have health, education, and services. They suffer when their close or extended families and friends fail to provide them the support that they need. India’s National AIDS Control Organization (NACO) estimated in 2005 that there were 5.206 million HIV infections in India, of which 38.4 per cent occurred in women and 57 per cent Stigma refer to attitudes that certain groups are lesser in one or many ways based on their membership in a group. The term “discrimination” is used whenever people are treated negatively, either by treating them differently where they should be treated the same or by treating them same where they should be treated in a different way. Discrimination is the breach of human rights obligation and which leads to violence, torture, and exclusion from the society. Treating people equally does not essentially mean that people should be treated the same and occurred in rural areas. There are many experts argue that the current figures are gross underestimations and that a significant number of AIDS cases go unreported. Prevalence estimates are based primarily on guard surveillance conducted at public sites. The national information system for collecting HIV testing information from the private sector is very weak. Vulnerability to HIV is also increased by the lack of power of individuals and communities to minimize or adjust their risk of exposure to HIV infection and once infected, to receive satisfactory care and support. Some individuals are more vulnerable to the infection than others. Low status of woman may force a monogamous woman to engage in exposed sex with her spouse even if he is charming in sex with others. Similarly youngster girls and boys may be vulnerable to HIV by being denied access to preventive information, education, and services. Sex workers may have greater vulnerability to HIV if they cannot access services to prevent, diagnose, and treat sexually transmitted infections, particularly if they are afraid to come forward because of the stigma associated with their occupation. There are strong perceptions of the causes of AIDS, routes of transmission, and their level of knowledge about the illness. These are compounded by the marginalization and stigmatization on the basis of such attributes as gender, migrant status or behaviours that may be perceived as risk factors for HIV infection. For example, women whose husbands have died of AIDS are rejected by their own and their husband’s families and they are denied property inheritance of their husbands.
Constitutional provisions of this group:
Art. 15(1) : The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
4.WHAT CONSTITUTES VIOLATION OF RIGHT TO HEALTH FOR VULNERABLE GROUPS?
The violation of the right to health of vulnerable groups may result from direct government action, from failure of the government to fulfil its minimum core obligations and from the patterns of systematic discrimination. The specific examples of violations of right to health of vulnerable groups would be:
- Deliberate preservation or twisting of information on the health status of deprived groups that may have been necessary for the prevention and treatment of illness or disability.
- Impressive discriminatory practices touching the group’s health status and needs. Adopting laws and policies that interfere with the rights of the groups, for example, women’s reproductive rights.
- Failure to protect women against violence is often systematic and serious enough to require women to seek hospital treatment for injuries and involve other health difficulty related to violence. When governments fail to take pre-emptive steps to prevent and treat victims of violence it is tantamount to violation of right.
- Failure of government to provide adequate public health measures against infectious diseases that affect the disadvantaged groups.
- Government policies and practices creating imbalances in providing health services, i.e., poor infrastructure in rural areas or predominantly tribal areas. Systematic discrimination in access to medicines and essential drugs for particular groups, i.e., HIV/AIDS drugs, reproductive health services for particular groups like women living in poverty, in rural areas, belonging to marginalized communities.
5.SCOPE AND LIMITATIONS OF THE INDIAN STATE VIS-A VIS RIGHT TO HEALTH
The Constitution of India and the other various laws do not accord health and healthcare as rights to the population in general. While civil and political rights are enshrined as fundamental rights that are permissible, social and economic rights like health, education, livelihoods etc. exist as Directive Principles for the State and are hence not permissible. There are however so many instances in which cases have been filed in the various High Courts of states and Supreme Court of India on the right to life, Article 21 of the Indian Constitution or on the various directive principles to demand access to healthcare, particularly in emergency situations. International safeguard of human rights is only effective when they are made viable by national protection. The key factors in rights being operationalised for individuals and groups within a nation are National-level legislation, policies and enforcement mechanism in which National laws offer variable degrees of protection against human rights violation and enables national bodies to hear cases of denial and enforce the norms. At present there is a problem of justifiability of the Right to health in Indian Constitution since the same is not protected by national legislation. Though India has ratified the Treaty on the Economic Social and Cultural Right which covers Right to Health (Article 12), that cannot be efficiently used to advocate for right to health in India. The Courts or petitioners can merely derive motivation from the treaties on the cases on contradiction on right to health but may not be able to use it efficiently to deliver justice. The international treaties have only an suggestive significance unless protected by national legislation. Absence of national legislation on right to health in India is the main reason why it cannot be realized. Health and human rights support in India needs to intensify the attempts towards transforming the critical principles of the Directive principles on health and work into independent rights through rigorous judicial activism, i.e., filing Public Interest Litigations, gathering testimonials for denial on right to health, etc. There needs to be a concerted move towards making a national legislation on right to health.
In the Constitution of India, the three pillars of human rights are
(a). the right to equality including the prohibition of discrimination in any form
(b). the six vital freedoms of citizens (including the right to speech and expression)
(c). the right to life guaranteed to all persons.
These rights have been recognized to be inalienable, unalterable and part of the basic structure of the Constitution which cannot be abrogated. India’s Supreme Court has interpreted the right to life as including the right to live with dignity, right to health, education, human environment, speedy trial and privacy, to name a few. Much of the focus of governmental activity has been to improve the provision of services through grass-roots local self-governance institutions, particularly in rural areas. India has taken an important initiative for the empowerment of women by reserving one-third of all seats for women in urban and local self-government, bringing over one million women at the grassroots level into political decision making. India has guaranteed human rights to all persons in India including the protection of minorities. India has secured their right to practice and preserve their religious and cultural beliefs as a part of the Chapter on Fundamental Rights. Legislative and executive measures have been taken for the effective implementation of safeguards provided under the Constitution for the protection of the interests of minorities. India has been deeply conscious of the need to empower the Scheduled Castes and Scheduled Tribes and is fully committed to tackle any discrimination against them at every level. The Constitution of India abolished “untouchability” and forbids its practice in any form. There are also explicit and elaborate legal and administrative provisions to address caste-based discrimination in the country. India stated that at independence, after the departure of the colonizers, all the people, including its tribal people, were considered as indigenous to India. This position has been clarified on various occasions, including while extending India’s support to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples at the Human Rights Council and the General Assembly.
Author: Surabhi Singh, student, 3rd year, Galgotias University, Greater Noida.
Disclaimer: This article has been published in “Legal Desire International Quarterly Journal (ISSN: 2347-3525), page no. 347. No part of this publication may be reproduced or transmitted in any form by means, electronic, mechanical, recording or otherwise, without prior permission from Legal Desire. All Rights Reserved.
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