EDITED BOOK ON

HUMAN RIGHTS &

STATE OBLIGATIONS

A TINY RESEARCH OF HUMAN RIGHTS & STATE OBLIGATIONS

INSTITUTE OF LEGAL
EDUCATION
 EDITED BOOK ON HUMAN RIGHTS & STATE

OBLIGATIONS

A Tiny research of Human Rights & State Obligations

Editors

Dr. K. SELVAKUMAR

Director of KKCPS, PMIST (Deemed to be University), Thanjavur,

Tamil Nadu.

Dr. D. AARTHI SARAVANAN,

Assistant Professor & Head, PMIST (Deemed to be University),

Thanjavur, Tamil Nadu.

Mr. R. HARIHARAN,

Editor-in-Chief, ILE Multidisciplinary Journal & Editor, IJLR Journal,

Tiruchirappalli, Tamil Nadu.

INSTITUTE OF LEGAL EDUCATION

 ILE Publication House

ILE Publication House is a publication department of Institute of Legal

Education. It furthers the ILE’s objective of excellence in research and
publication. Institute of Legal Education is the Largest Academic Publisher
with 104 National and International Journals.

Published by

Prasanna S

Chairman, Indian Journal of Legal Review (A Part of ILE)

No. 08, Arul Nagar, Seera Thopu, Tiruchirappalli, – 620102

© Dr. K. SELVAKUMAR and Institute of Legal Education

The Moral rights of the authors have been asserted.

All rights reserved. No part of this publication may be reproduced,

stored in a retrieval system, or transmitted, in any form or by any
means, without the prior permission in writing of Institute of Legal
Education, or as expressly permitted by law, by license, or under
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organization. Enquiries concerning reproduction outside the
scope of the above should be sent to the Rights Department.
Institute of Legal Education, at the address above

You must not circulate this work in any other form and you must
impose this same condition on any acquirer

ISBN (O) - 978-81-954687-9-9 | ISBN (P) - 978-81-960384-3-4

Published on June, 2023

Published and Printed at Tiruchirappalli, Tamilnadu

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

INDEX

[Link] CONTENTS PAGE NO.

HUMAN RIGHTS TO WATER IN INDIA - A STUDY

1. 1
- [Link] AND [Link]

Women Trafficking In India- A Social Impact

2. 14
- Dr. K. SENTHIL KUMAR

RIGHT TO ADEQUATE HOUSING – WILL IT SURVIVE

FINANCIALISATION?
3. 23
- Dr GOGISETTI VENKATA NARASIMHA RAO AND
VIKRANT CHAOUHAN

RIGHT TO EDUCATION OF SCHEDULED TRIBES IN INDIA -

4. A STUDY 39
- [Link] and [Link]

VIOLATION OF THE BASIC HUMAN RIGHT TO LIFE -

5. PRACTICE OF NARABALI 58
- Dr. Mrs. Cinthia. Jude

TRADITIONAL WATER HARVERSTING TECHNIQUES,

ENVIRONMENT AND PUBLIC HEALTH : A HUMAN RIGHTS
6. PERSPECTIVE 71

- Dr. Shan Eugene Palakkal

HUMAN RIGHTS IN RELATION TO ENVIRONMENT:

7. PULICAT LAKE – A TOURISM PERSPECTIVE 81
- DR. P. SENKATHIR SELVI

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

ROLE OF NGOs IN THE PROMOTION & PROTECTION OF

8. HUMAN RIGHTS
96
- Irshad Khan and Pradnyanand Jondhale

CRIMES AGAINST WOMEN: A BLOT ON GENDER

9. EQUALITY AND WOMEN EMPOWERMENT
111
- Dr. I. Princes

Hundred years of Juvenile Justice System In India

10.
- Dr. Saumya Shanker 123

ORIGIN AND DEVELOPMENT OF HUMAN RIGHTS IN INDIA

11. -A STUDY
133
- [Link]

Self-Help Groups as a tool for empowerment of

women and poverty eradication: An analysis of the
12. Kudumbashree programme in Kerala 144
- Advaita R. Prasad

Violation of Human rights on Archaeological

13. excavation with special reference to property rights
162
- Ms Ivan Nancy

Tribal transformation through Global Governance:

14. Understanding Tensions and Possibilities
176
- Mamdooh Abdul Fathah

A CRYTICAL ANALYSIS OF THE SUPREME COURT CASES

15. IN INDIA ON DEATH PENALTY
200
- Tanveen Kaur

iv
HUMAN RIGHTS TO WATER IN INDIA

- A STUDY

[Link]* AND [Link]**

* Ph.D., Research Scholar, Dept. of [Link]. & Pub. Admn.

Annamalai University

** Professor and Head, Dept. of [Link]. & Pub. Admn.

Annamalai University-608 002.

1
 [Link] AND [Link]

Abstract

Water is an essential, inevitable, and top most wanted

item for every human being, without water, nothing exists. Water is
exclusively available on Earth; hence people can't exist on other
planets. Most international, national, and state water
commissions and committees say the water issue will cause a
third global war. 96.5% of the total water on earth is in Oceans. It
also exists in the air as vapour, in rivers and lakes, in ice-caps, in
glaciers, and in the ground as soil moisture. Only 2.5% of the total
water on earth is fresh water and of this, only 0.3% is in liquid form
on the earth’s surface. The Union, State governments, and NGOs
work to solve India's water problem. Tamil Nadu is a fast-
developing Indian state. The right to water is more often
expressed within non-legally binding resolutions and
declarations. These instruments, both international and regional
in scope, accept that fundamental human rights, such as life,
health, and well-being are dependent upon the premise that
people are guaranteed access to sufficient quality and quantity
of water. The concept of Human Rights is founded on the ancient
doctrine of natural rights based on natural law. It is understood
today has evolved over conditions. The United Nations
Organisation has been promoting human rights since its
inception. The universal declaration of Human Rights 1948 was
proclaimed as a common strand of achievement for all peoples
and all nations. Article 21 of the Indian Constitution states the right
to life with human dignity. That, the Water provided of Water
through equal opportunities is a basic requirement for national
advancement, is conceded both by policymakers and society.
The human right to water in India is discussed in this article. It
assumes that the right is strongly established in both national
and international law. Thus, it moves past discussions about the
request's existence or its legal standing in favor of a more in-
depth analysis of its content. It focuses on India, where the right is
broadly recognized but the specifics of the request are not clearly

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outlined in legal documents. It takes into account some of the

aspects of the right that are currently most important from a
policy perspective, such as the need to make sure that the right's
theoretical universality is matched by its actual realization, the
requirement that the state provides the right's essential elements
and the requirement to acknowledge that the request also
includes a complimentary water component if it is to have an
impact on the vast majority of poor people In this context, these
articles detaily discussed Water, Water supply management, and
Human Rights in India.

Keywords: Water, Human rights, Basic water need, International

law, State

Introduction

Human rights are rights that are inherent to being human

which include the right to life, the security of the person, freedom
from torture, freedom of expression, and Human basic need much
more. Water resources in India include information on
precipitation, surface and groundwater storage and hydropower
potential. India experiences an average precipitation of 1,170
millimeters (46 in) per year, or about 4,000 cubic kilo meters (960
cu mi) of rains annually or about 1,720 cubic meters (61,000 cu ft)
of fresh water per person every year. India accounts for 18% of the
world population and about 4% of the world's water resources.
One of the proposed solutions to solve the country's water woes is
the Indian rivers interlinking project. Some 80 percent of its area
experiences rains of 750 millimeters (30 in) or more a year. Over
the past two decades, there has been a growing discussion about
the human right to water. Water is the second most essential
element for human survival after air, therefore this is not
surprising. Additionally, freshwater is necessary for all species on
Earth; therefore discussions of the right to water must take place
in a framework that goes much beyond the urgent survival
requirements of [Link] has never been disputed that water is
essential to maintaining life. However, during the past 20 years,

2
 [Link] AND [Link]

case law, international and state legal documents, and legal

frameworks have all emphasized the right to water more and
more. On the one hand, this is unexpected given the direct
connection between water and life. However, it can be argued
that regardless of whether water is legally listed among the
recognized rights or not, it is included as a right in every human
rights document or bill of rights because of its fundamental
connection to life.

It has been argued that the whole idea of utilizing

everyone's right to water as a means of achieving their goals is a
strategic error. This is true, but it doesn't negate the necessity to
engage with the right to water, which in many cases may be the
most crucial strategy people may employ in their campaigns. It is
vital to consider the various ways in which the right to water can
be understood in light of the fact that there is no universally
agreed-upon definition that is legally binding. Therefore, even
while education research and mainstream policy are increasingly
arguing that the right to water does not entail that it should be
free, this cannot stop other arguments from being made. First of
all, a serious examination of the provisions of the right to water is
required in light of the conceptual connection between water,
dignity, and life. Second, in many places of the world, paying for
water conflicts with cultural and religious beliefs about access to
it. Thirdly, in a nation like India, drinking water has virtually been
distributed gratis for decades in rural regions. When individuals
acknowledge that goods are not incompatible with human rights,
it creates a totally different set of issues, particularly in India.

The objectives of this research article are: (1) to identify

that the right must not only be universal in theory but also in the
practice of its implementation, (2) to trace that the right to water
must be based on an understanding of the state having the duty
to provide its realization, something which is well established in
India but has suffered erosion in recent times, and (3) to discuss
that the right to water must be conceived in a way that not only
takes into account the intrinsic link between various water. The

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

methodology adopted for this present study is a descriptive and

analytical method that was used to understand the Human rights
to Water in India. The present research article is based on a
secondary source. The main secondary sources are the Human
Rights handbooks related to Water, Relevant Books, Articles
published in Journals, Magazines, Newspapers, Reports, Face Book
Pages, Twitter, and Official Websites. This study's conclusions
about the Human rights to Water in India are presented in this
research paper. It not only explains to the readers what has
changed in comparison to the past, but it also evaluates how and
why the swift adaptation was feasible, as well as the difficulties
encountered throughout the shift from the viewpoint of the
educator.

The General Background of a Right to Water

This section highlights recent international events relating

to the right to water. The next section looks at some of the broad
conceptual issues that underlie the sections of this article that are
more focused on India.

An International agreement on the Right to Water

International human rights agreements have long

recognized that everyone has the right to water. The six main
international human rights agreements made during the 1970s
can be used to identify the growing acknowledgment of the right
in contemporary [Link] agreements, a number of
"soft law" tools attest to the right's existence. The UN General
Assembly has made it known that it acknowledges a right to
water at least since 1999. Even yet, the UN High Commissioner for
Human Rights reported in 2007 that "the dispute is still open as to
whether access to safe drinking water and sanitation is a human
right," questioning in particular whether it is a derived or self
standing [Link] Committee on Economic, Social, and Cultural
Rights has made an effort to elevate the right to water within the
context of the ICESCR by adopting a General Comment in
addition to agreement recognition and soft law mechanisms.

4
 [Link] AND [Link]

According to the committee, everyone has the right to "adequate,

safe, acceptable, physically accessible, and reasonably priced
water." The normative content of the right, which is composed of
freedoms and entitlements, is then identified. Overall, it can now
be argued that existing legal provisions "contribute to the
elevation of the right to water to a norm of international custom"
given the many developments that have occurred over the
previous few decades. However, this recognition is only at a very
general level, and binding international law has not yet definitively
determined what the right actually involves.

Beyond Agreement, there are the Right Ideas that need more
attention

On the surface, the relationship looks to be acceptable

because the right to water is becoming more conceptually
acceptable. However, this agreement does not withstand further
investigation due to the crucial function that water plays in all
facets of human life, planet life, and development in the broadest
sense. Some of the aspects that have generated the most debate
are those that are directly or indirectly related to the most
significant adjustments in the water sector that have been
proposed through reforms in the water sector that aim to view
water in all of its manifestations as an economic [Link]
on access in relation to the right to water does not always have
an immediate impact on how the right is fulfilled. According to
one of the main authors of the General Comment, the CESCR
"adopted a neutral stance on whether private sector engagement
was ultimately helpful or negative" and treated privatization as a
political topic that they left open. When that the human rights
framework does not require any specific manner of service
supply, the Independent Expert on the Issue of Human Rights
Obligations Related to Access to Safe Drinking Water and
Sanitation reaffirmed this stance.

Making citizens pay has not always been assumed to be a

given in all circumstances, according to historical trends in
various parts of the world. However, discussions in recent years

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

have been more focused on the inevitable rise in prices. This can
be partially explained by the prominence of recent policy reforms
in the water sector that have placed an emphasis on cost
recovery. Since safe water is not a free good, one of the early
policy declarations on water sector changes particularly said that
this reality "must be widely promoted." The fact that pricing has
frequently been determined not to be at odds with a human
rights perspective can also be linked to the rising prominence of
pricing in a human rights context. The UN Special Rapporteur's
assertion that a human rights framework does not mandate the
provision of free water and sanitation services reflects this point of
view.

Concerns about cost, water rights, and access are related

to the main problem of disconnections. The utility's potential to
reduce supply in the context of piped water services makes sense
from a cost recovery perspective. The South African Constitutional
Court did in fact adopt this position when it stated that "the
system of pre-paid meter readings was initially introduced only
into Soweto, because Soweto was the area where an enormous
quantity of water was being distributed, but for which costs were
not being recovered."The dichotomy between the constitutional
recognition of the right to water in South Africa and the higher
judiciary's unwillingness to expand the scope of the right confirms
that there are more pressing issues that need to be discussed
than just whether the right is generally recognized or whether
generalizations about the right are true in all nations.

Indian recognition's scope and limitations

The human right to water is not recognized by the Indian

Constitution. However, it has been frequently acknowledged by
the judiciary. Thus, the right is firmly established. The actual
content and successful realization of the human right to water in
India provide significant problems at this point. In spite of the fact
that courts have amply affirmed the right's existence, they have
not elaborated much on its specifics. This is reasonable in a way
because the courts are not responsible for this. However, the

6
 [Link] AND [Link]

legislature has not risen to the occasion of providing content to

the right, and as a result, there are significant gaps in the legal
[Link] fundamental elements of the right's content are not
up for much debate in the Indian context. The idea that the right is
universal and includes drinking water demands is one that is
easily accepted. Beyond these broad generalizations, there is
scant consensus regarding the specifics of the right. In fact, even
the universality concept is not always fully applied in practice. To
ensure the full and effective realization of the right for everyone,
additional interaction with the right's specific content is
necessary.

The right has continued to evolve in various settings and

directions despite the lack of constitutional status. First, courts
have been at the vanguard of a discussion of the human right to
water that is explicit, making it clear that it exists under Indian law.
Second, a number of states have passed legislation that has
given the implementation of the right a broad context. Thirdly, the
union government's policy tools have also significantly aided in
the realization of rights in rural areas. Significant contributions
were made to the creation and enforcement of the human right
to water by various state agencies. However, they are insufficient
and constrained. The current legislation does not actually focus
on the realization of human rights, though it may indirectly
contribute to its implementation, and the executive's
administrative directions are not long-term markers of the
content of the right since they can, and do, change frequently.
Neither are the courts' rules consistent or sufficiently precise to
provide relief on the ground. The right to water has been
interpreted as the right to life on numerous occasions by the
Supreme Court and the high courts. Accordingly, the Supreme
Court stated in Subhash Kumar v. State of Bihar that the "right to
life is a basic right under Article 21 of the Constitution and it
encompasses the right to the enjoyment of pollution-free water
and air for the full enjoyment of life."

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

According to certain rulings, the Constitution's Article 47

requires the state to "see boosting the level of nutrition and
standard of life of its people and improving public health as one
of its fundamental tasks." The government was sued in Hamid
Khan v. State of Madhya Pradesh for failing to take the necessary
safeguards to guarantee that the drinking water supplied by
hand pumps in Mandla District was free of excessive fluoride.
According to the court, the state must "promote the health of the
public by supplying unpolluted drinking water" in accordance with
Article 47 of the constitution. The judges originally ruled on the
state's "principal obligation" before stating that the right to life
also applies to the matter.

Administrative guidelines for rural areas' drinking water supply

The constrained legislative framework that was mentioned

in the previous section relates to state-level legislation. The lack of
new legislation at the union level can be partially attributed to the
fact that the Constitution does not grant it a special mandate in
this area. At the same time, the union has the ability to take the
lead and has done so in the past. The drinking water supply has
been a topic of policy and political concern for decades,
notwithstanding the lack of legislative actions. Because of this, the
union administration has made an effort to make a mark in this
field via non-legislative techniques, such as programs and
schemes backed by financial incentives to persuade states to
adhere to specified [Link] drinking water supply has been
one of the union government's primary intervention areas. Early in
the 1970s, the Accelerated Rural Water Supply Programmed
(ARWSP), the first significant program, was started. Up until 2009,
the ARWSP Guidelines served as the fundamental foundation for
promoting the availability of drinking water to every habitation in
rural areas.

Despite the overall success of the ARWSP, the government

began a thorough process of reforming its water supply policy in
the late 1990s as part of broader water policy reforms. Finally, as a
result of this, an entirely new set of guidelines known as the

8
 [Link] AND [Link]

National Rural Drinking Water Programmed(NRDWP) was adopted

in [Link] NRDWP is founded on the new water policy principles,
which advocate for the government's involvement in the water
industry to be significantly diminished. This expands upon the
policy framework that was put to the test beginning in 2003 under
the Swajaldhara Guidelines environment. The NRDWP's
remarkable aspect from the perspective of the human right to
water is that it disclaims the right's existence. It's possible that this
was just a linguistic error and an oversight. The NRDWP's
deliberate omission of human rights wording is, however,
supported by a comparison of the two versions, which were
released in 2009 and 2010, respectively. According to the 2009
revision, "demand for basic drinking water needs is a fundamental
right."

Given that "average per capita availability may not

necessarily guarantee secured access to potable drinking water
for all sections of the people in the habitation," the NRDWP bases
its decision to move from addressing individual needs to those of
households. However, it doesn't explain how the change results in
increased coverage in a particular household. Recently, it has
been apparent that the government does not approve of the new
strategy. In particular, the new Rural Drinking Water, Strategic Plan
(2011-2022) specifies that the objective is to achieve 7 LPCD by
2022 in addition to returning to a per capita metric. This text
represents a significant pivot that confirms the requirement to
take individual water demands into account.

A legal right to the provision of clean water

The state has a responsibility to see that human rights are

upheld. In fact, while the state is generally responsible for
preserving constitutional rights, the state bears the primary
responsibility because it alone possesses the institutional and
economic means required to enable the fulfillment of the right.
States have a multitude of obligations to advance human rights,
starting with those imposed by international law. Member nations
have pledged to provide free and required elementary education

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

in certain circumstances, such as the right to education. The

covenant contains no such level of clarity on water. The African
Charter on the Rights and Welfare of the Child, one of the more
recent instruments, however, specifies explicitly that states must
"guarantee the supply of adequate nutrition and safe drinking
water."

This prompted succeeding administrations to at least

make an effort to guarantee the availability of water in cities by
setting up the appropriate infrastructure to enable people to
receive water either for free or at a cost depending on whether
they had individual connections at home. Similar to urban areas,
the government made an effort to set up the infrastructure,
including hand pumps that in the vast majority of situations
provided free access to water. Indian courts have ruled that
it is the state's responsibility to supply basic water. In reality, there
is no other option to the state's provision because requiring users
to fund all capital expenditures would result in a general denial of
the right to the majority of people. Additionally, the obligation to
provide implies that the water supply cannot be interrupted. In
fact, under the right to water, it should be against the law to cut
off the water supply or restrict access. As previously mentioned,
even in England and Wales, where water delivery systems were
completely privatized, this conclusion was drawn. Last but not
least, the state's obligation to contribute does not entail that it is
the sole party involved and accountable. In reality, just because
the state has the primary responsibility for ensuring that there is
enough clean water available does not relieve anyone else of
their responsibility. Therefore, despite the state's obligation to
supply, everyone has a responsibility to make sure that no one
suffers significantly from a lack of water. This implies that
everyone has a responsibility to share both common and private
sources of water fairly.

Conclusion

A communications and computer revolution is sweeping

the globe. There is renewed interest in reaching out to outer

10
 [Link] AND [Link]

space. International financial markets and industries are

increasingly integrated and connected. And efforts are being
made to ensure regional and global security. In India, the right to
water is widely recognized. Over the past few decades, the higher
courts have continuously recognized the right, and no legislation
or administrative directive has specifically rejected the right's
validity. To ensure that the right is realized for everyone, however,
a number of steps still need to be completed. In addition to the
widespread acceptance of the right, relying on the courts alone is
insufficient. Even the courts recognize this. As a result, in Voice of
India v. Union of India, the petitioner sought the provision of free
water to all citizens. The Supreme Court bemoaned the fact that
"a citizen of our country is not getting clean, potable water even
after 60 years." The water supply, however, is largely the
responsibility of municipal corporations and other local
organizations, therefore it was determined that it was unable to
provide assistance on an all-Indian basis.

There is a need for a legislative framework at the state or

union level that lays out the overarching guidelines and
standards for all parties involved in the provision of drinking water,
including, for example, with regard to water [Link] realization
of the right to water requires leaving the executive's
administrative directives behind. This will guarantee that the
fundamental elements of the right are governed by long-term
standards set forth in legislation rather than by administrative
[Link], it is clear that the formal framework supporting the
right to water requires far more attention than it has received thus
far. The fulfillment of the right to water will not, however, be
guaranteed by the simple acceptance of additional legal
frameworks. A vigorous right-to-water movement by members of
civil society must go hand in hand with the statutory structure.
Although there have already been a number of anti-water
privatization initiatives in cities, some of which have had
successful results, a more comprehensive right-to-water
campaign that includes rural communities has yet to materialize.
For example, this additional pressure is required to make sure that

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people are more knowledgeable about their rights and

accountability systems. A number of substantive safeguards that
will guarantee that the right is not largely devoid of content for the
majority of poor people must serve as the direction for this entire
process towards assuring the more effective realization of the
right. The majority of actors around the world have come to
accept the right to water. At this stage, it is crucial to prevent the
right from becoming a meaningless empty shell that has no
bearing on the hundreds of millions of people whose fundamental
human right to water is now not completely realized.

Reference

1. Karen Bakker, “Commons versus Commodities: Debating

the Human Right to Water,” in The Right to Water
(Routledge, 2013), 19–44.
2. Julie A. Smith and J. Maryann Green, “Free Basic Water in
Msunduzi, KwaZulu-Natal: Is It Making a Difference to the
Lives of Low-Income Households?,” Water Policy 7, no. 5
(2005): 443–67.
3. NandiniSundar, “Legal Grounds,” Natural Resources,
Identity, and the Law in Jharkhand, 2009.
4. Philippe Cullet, “Rethinking the Right to Water to Ensure Its
Realisation for All,” Journal of the Indian Law Institute, 2012,
27–42.
5. Philippe Cullet, “Right to Water in India–Plugging
Conceptual and Practical Gaps,” The International Journal
of Human Rights 17, no. 1 (2013): 56–78.
6. Philippe Cullet, “Right to Water in India–Plugging
Conceptual and Practical Gaps,” The International Journal
of Human Rights 17, no. 1 (2013): 56–78.
7. SubhashAnand, Solid Waste Management (Mittal
Publications, 2010).
8. Peter H. Gleick, “The Human Right to Water,” Water Policy 1,
no. 5 (1998): 487–503.

12
 [Link] AND [Link]

9. Eibe H. Riedel, Peter Rothen, and Deutschland

AuswärtigesAmt, The Human Right to Water (BWV Verlag,
2006).
10. Eibe Riedel, The Human Right to Water and General
Comment No. 15 of the Committee on Economic, Social
and Cultural Rights (BWV Berliner Wissenschafts-Verl.,
2003).
11. Farhana Sultana and Alex Loftus, The Right to Water:
Politics, Governance and Social Struggles (Routledge,
2013).
12. RoopaMadhav, “VI. Context for Water Sector and Water
Law Reforms in India,” in Water Law for the Twenty-First
Century (Routledge, 2009), 129–57.
13. Donald J. Pisani, Water and American Government: The
Reclamation Bureau, National Water Policy, and the West,
1902-1935 (Univ of California Press, 2002).
14. Philippe Cullet, “Water Law and Development:
Comparative Perspectives,” 2019.
15. Philippe Cullet and RoopaMadhav, “Water Law Reforms in
India: Trends and Prospects,” Water and the Laws in India,
2012, 511–34.
16. Philippe Cullet, Water Law, Poverty, and Development:
Water Sector Reforms in India (OUP Oxford, 2009).
17. Sylvain R. Perret, “Water Policies and Smallholding Irrigation
Schemes in South Africa: A History and New Institutional
Challenges,” Water Policy 4, no. 3 (2002): 283–300.
18. G. N. Kathpalia and RakeshKapoor, “Water Policy and
Action Plan for India 2020: An Alternative,” Alternative
Future 1 (2002): 1–33.
19. Peter P. Mollinga, “Water Policy–Water Politics,” in Water
Politics and Development Cooperation (Springer, 2008), 1–
29.
Bakker, “Commons versus Commodities.

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Women Trafficking In India- A

Social Impact

Dr. K. SENTHIL KUMAR*

* Associate Professor, Department of Politics & Public

Administration, Alagappa University, Karaikudi.

14
 Dr. K. SENTHIL KUMAR

Abstract

Human Trafficking means the trading of humans for a particular

purpose for example forced labour, sex slavery, and sexual
aborloitation for commercial purposes. It is not something that
evolves suddenly, its origin is in itself a long history. Slavery had
been in existence for 1200 years and was considered a common
form of everyday life globally. Women are also trafficked into
commercial markets to serve as laborers or domestic servants.
Kuwait has considered a major center of women trafficked for
commercial exploitation, which, like those sent into prostitution,
joins recruiters who promise money and a better life. Their
passports and immigration papers are frequently seized by their
new owners once they reach Kuwait, leaving them completely
vulnerable and without legal recourse. Though Kuwait, according
to investigations by the United States State Department, is one of
the worst centers for trafficking in women, it is far from the only
one. As of 2009, 17 countries were listed as Tier 3 by the US State
Department, meaning that not only do they suffer high amounts
of human trafficking but that the government does not meet
minimum standards for eliminating the trade. The present study is
a critical analysis of Women Trafficking in India.

Keywords: Fundamental Rights, Forced Labours, Women's

Trafficking, Protection.

Introduction

Human trafficking in India, although illegal under Indian law,

remains a significant problem. People are frequently illegally
trafficked through India for commercial sexual exploitation and
forced/bonded labor. Although no reliable study of forced and
bonded labor has been completed, NGOs estimate this problem
affects[20 to 65 million Indians. Men, women, and children are
trafficked in India for diverse reasons. Women and girls are
trafficked within the country for commercial sexual exploitation
and forced marriage, especially in those areas where the sex ratio
is highly skewed in favor of men. Men and boys are trafficked for

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

labor and may be sexually exploited by traffickers to serve as

gigolos, massage experts, escorts, etc. A significant portion of
children are subjected to forced labor as factory workers,
domestic servants, beggars, and agriculture workers, and have
been used as armed combatants by some terrorist and insurgent
groups.

The Indian Constitution specifically bans traffic in persons. Article

23, in the Fundamental Rights section of the constitution, prohibits
‘traffic in human beings and other similar forms of forced labor’.
Though there is no concrete definition of trafficking, it could be
said that trafficking necessarily involves the
movement/transportation, of a person utilizing coercion or deceit,
and consequent exploitation leading to commercialization. The
abusers, including the traffickers, the recruiters, the transporters,
the sellers, the buyers, the end-users, etc., exploit the vulnerability
of the trafficked person. Trafficking shows a phenomenal increase
with globalization. Increasing profit with little or no risk, organized
activities, low priority in law enforcement, etc., aggravate the
situation. The income generated by trafficking is comparable to
the money generated through trafficking in arms and drugs.

However, the 1400s showed the start or beginning of European

slave trading in Africa with the Portuguese transporting people
from Africa to Portugal and using them for slavery. In a later
period, Britain and many other European nations joined in the
practice of European slavery. As some were trafficked to carry out
their fulfillment of sexual desire and for sexual purposes, the
trafficking carried out was known or recognized by the term ‘white
slavery’. And for releasing the slaves, an American charity
organization of Anti-Slavery International, was launched in the
United States and till now it is considered the most successful and
influential movement in history. Although combating Human
trafficking is always a growing priority for many national
governments, due to the absence of a sufficient amount of
database regarding the trafficking in a particular country or at a

16
 Dr. K. SENTHIL KUMAR

global level, it is still a growing priority that many governments

are unable to achieve.

India's efforts to protect victims of trafficking vary from state to

state but remain inadequate in many places. Victims of bonded
labor are entitled to ₹ 10,000 (US $185) from the central
government for rehabilitation, but this program is unevenly
executed across the country. Government authorities do not
proactively identify and rescue bonded laborers, so few victims
receive this assistance. Although children trafficked for forced
labour may be housed in government shelters and are entitled
to₹ 20,000 ($370), the quality of many of these homes remains
poor and the disbursement of rehabilitation funds is sporadic.[1]

Some states provide services to victims of bonded labour, but

non-governmental organizations provide the majority of
protection services to these victims. The central government does
not provide protection services to Indian victims trafficked abroad
for forced labor or commercial sexual exploitation. Indian
diplomatic missions in destination countries may offer temporary
shelter to nationals who have been trafficked; once repatriated,
however, neither the central government nor most state
governments offer any medical, psychological, legal, or
reintegration assistance for these victims.

Section 8 of the ITPA permits the arrest of women in prostitution.

Although statistics on arrests under Section 8 are not kept, the
government and some NGOs report that, through sensitization
and training, police officers no longer use this provision of the law;
it is unclear whether arrests of women in prostitution under
Section 8 have decreased. Because most law enforcement
authorities lack formal procedures to identify trafficking victims
among women arrested for prostitution; some victims may be
arrested and punished for acts committed as a result of being
trafficked.

Some foreign victims trafficked to India are not subject to

removal. Those who are subject to removal are not offered legal

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

alternatives to removal to countries in which they may face

hardship or retribution. NGOs report that some Bengali victims of
commercial sexual exploitation are pushed back across the
border without protection services. The government also does not
repatriate Nepali victims; NGOs primarily perform this function.
Many victims decline to testify against their traffickers due to the
length of proceedings and fear of retribution by traffickers.

The Ministry of Labour and Employment displays full-page

advertisements against child labour in national newspapers at
periodic intervals. The government has also instituted pre-
departure information sessions for domestic workers migrating
abroad on the risks of exploitation. These measures include
distinguishing between 'Emigration Check Required' (ECR) and
'Emigration Check Not Required' (ECNR) passports. ECR passport
holders must prove to government authorities that they shall not
be exploited when traveling abroad if they wish to travel. Many
Indian workers pay large sums of money to agents who facilitate
their emigration outside the official channels and willingly
emigrate despite the risks, drawn by the hope of higher salaries
abroad. Therefore, a dream of a better future often lures people
abroad, and hence trafficking cannot entirely be prevented
the Government of India launched an anti-human trafficking web
portal in February 2014 that they hope will be an effective way for
interested parties to share information about this topic. The
Salvation Army has a program that provides safe places for
children of women who work in the red district in India.

The United Nations defines Human trafficking as a process of

recruiting, transporting, or receiving forced labor by the use of
threat or force, coercion or giving and receiving payment to give
or take control over the forced labor to exploit that person for their
satisfaction. Trafficking means illegal trade. Human trafficking
means the trading of humans. Trafficking can occur within a
country or may involve movement across borders. Women, men,
and children are trafficked for a range of purposes, including
forced and exploitative labor in factories, farms, and private

18
 Dr. K. SENTHIL KUMAR

households, sexual exploitation, and forced marriage. Trafficking

affects all regions and most countries of the world. Prostitution is
said to be the oldest profession in the world of human beings and
is rampant throughout the world.

The development of a definition of trafficking is necessary to

combat the problem and be effective in preventing trafficking.
Trafficking, in the dictionary, is described as an illegal trade in a
commodity & in the case of trafficking in persons, the commodity
is human beings.

Art.3, paragraph (a) of the UN Trafficking in Persons Protocol

states that trafficking in persons: Shall mean the recruitment,
transportation, transfer, harboring, or receipt of persons,
employing the threat or use of force or other forms of coercion,
abduction, fraud, deception, of the abuse of power or a position of
vulnerability or the giving or receiving of payments or benefits to
achieve the consent of a person having control over another
person, for exploitation. Exploitation shall include, at a minimum,
the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery or practices
similar to slavery, servitude, or the removal of organs.

India is also a destination for women and girls from Nepal and
Bangladesh trafficked for commercial sexual exploitation. Nepali
children are also trafficked to India for forced labor in circus
shows.[citation needed] Indian women are trafficked to the
Middle East for commercial sexual exploitation. Indian migrants
who migrate willingly every year to the Middle East and Europe for
work as domestic servants and low-skilled laborers may also end
up part of the human-trafficking industry. In such cases, workers
may have been 'recruited' by way of fraudulent recruitment
practices that lead them directly into situations of forced labour,
including debt bondage; in other cases, high debts incurred to
pay recruitment fees to leave them vulnerable to exploitation by
unscrupulous employers in the destination countries, where some
are subjected to conditions of involuntary servitude, including

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

non-payment of wages, restrictions on movement, unlawful

withholding of passports, and physical or sexual abuse.

These girls and women are sourced from Dindigul, Madurai,

Tiruchirapalli, and Chengalpattu in TamilNadu, Gaya, Kishanganj,
Patna, Katihar, Purnea, Araria, and Madhubani from Bihar,
Murshidabad and 24 Parganas in West Bengal, Maharajgunj from
UP, Dholpur, Alwar, Tonk from Rajasthan, Mangalore, and Gulbarga
and Raichur from Karnataka. These women and girls are supplied
to Thailand, Kenya, South Africa, and Middle East countries like
Bahrain, Dubai, Oman, Britain, South Korea, and the Philippines.
They are forced to work as sex workers undergoing severe
exploitation and abuse. These women are the most vulnerable
group to contracting HIV infection. Due to unrelenting poverty and
lack of unemployment opportunities, there is an increase in the
voluntary entry of women into sex work. Trafficking both for
commercial sexual exploitation and non-sex-based exploitation
is a transnational and complex challenge as it is an organized
criminal activity, an extreme form of human rights violation, and
an issue of economic empowerment and social justice.

Trafficking in women and children is something that is the most

detestable violation of human rights and is considered heinous to
the life of people. A lot of crimes are taking place but trading in
human misery is ghastly in respect of other crimes taking place.
Human trafficking is a complex process during which the victims
pass through different stages (recruitment, transportation,
exploitation, and disposal) possibly in different countries.
Trafficking is the violation of human rights which keeps the
persons at the edge of danger or at risk of being exploited.
Restriction from movement, deprivation of security and self-
preservation, deprivation of healthcare facilities, and education
and banning social restriction, all come under human rights
violation.

20
 Dr. K. SENTHIL KUMAR

Conclusion

Human Trafficking is the recruitment, transportation, transfer,

harboring, or receipt of people through force, fraud, or deception,
intending to exploit them for profit. Men, women, and children of
all ages and from all backgrounds can become victims of this
crime, which occurs in every region of the world. Women
trafficking and its consequences are not only far away and other
people’s problems. It is a problem of our daily life and happens
right here in Winnipeg as well as in almost every other “civilized”
city all over the world. Poverty and illiteracy are the main
elements constituting the substratum for trafficking. The number
of non-governmental organizations working in the field has
increased enormously during the last few years. However, the vast
majority of them are located in urban centers and very few have
grassroots connections. Women trafficking touches every country
and countless industries worldwide, and while many individuals
and organizations are working globally to combat this problem, it
may take time before it is fully realized just how huge this issue is.
The situation in the country presents a picture of a lack of
cohesion and coordination. Whether it is intra-state trafficking,
inter-state trafficking, or trans-border trafficking, the agencies
involved in rescue do not seem to have any coordination with the
agencies concerned with rehabilitation. The issue of missing
women and children has been seen in isolation and was never
seen in correlation with trafficking. There is no common platform
linking prevention strategies between source and destination
areas. The absence of a national coordinating/monitoring agency
has been a serious impediment to justice delivery and the
protection of human rights. Therefore, to ensure the best interests
of the victims, to bring about effective coordination at the
national level, and to coordinate preventive strategies, programs
and policies, there is also a need for a national nodal agency to
combat trafficking

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Reference:

1. ECOSOC, UN. 2003. Combating Human Trafficking in Asia: A

Resource Guide to International and Regional Legal Instruments,
Political Commitments and Recommended Practices.
2. INTERPOL. 2002. Manual For Investigation. The Interpol Working
Group on Trafficking in Women for Sexual Exploitation. (restricted
in circulation)
3. Anand, A.S, Chief Justice. 2004. Justice for Women, Concern and
Expression, 2nd ed: Universal Law Publishing Co. Pvt. Ltd.
4. NHRC. 2002. Information Kit on Trafficking in Women and Children.
5. NHRC, UNIFEM and Institute of Social Sciences, Trafficking in
Women and Children in India, Orient Longman, 2005.
6. [Link] documents/ human trafficking / 2011 /
Responses _to_ Human _ Trafficking _in _ Bangladesh _ India_
Nepal_and_Sri_Lanka.pdf
7. Trafficking: National Women’s Resource Council for India (n.d.).
Retrieved October 26, 2009
8. UNICEF (2008). Understanding the Convention on the Rights of
the Child
9. Sen, S. (2004). A Report on Trafficking in Women and Children in
India 2002"2003. New Delhi: National Human Rights Commission,
UNIFEM, Institute of Social Sciences.
10. Pandey, B., Jena, D., & Mohanty, S. (2002). Trafficking in Women in
Orissa ,Institute for Socio Economic Development (ISED).
Retrieved November 9, 2009
11. India . Trafficking in Persons Report 2008. U.S. Department of
State
12. Basu, Manali (3 May 2016). Male Sex Trafficking: Blind Spots Hinder
Equality". [Link]. Retrieved 28 August 2019.
13. India Together: Bodies for sale, by men too - 12 March
2014". [Link]. Retrieved 28 August 2019.

22
 RIGHT TO ADEQUATE HOUSING –

WILL IT SURVIVE

FINANCIALISATION?

Dr. GOGISETTI VENKATA NARASIMHA

RAO* AND VIKRANT CHAOUHAN**

* Associate Professor of law, Gujarat Maritime University, Gandhinagar,

KOBA, GUJARAT

** Doctoral Scholar, Department of International Trade Law, Gujarat

Maritime University, Gandhinagar, KOBA, GUJARAT

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

ABSTRACT

Right to housing in 21st century, instead of being seen as a place

for living for the social good, is being viewed as a financial asset.
As a result, right to housing is seen less a human right but viewed
more as a financial asset and a means of investment.
Financialization of housing is at its peak overshadowing the right
to adequate housing. As a result, the right to housing is slowly
heading towards extinction with little scope of recovery. Extinction
of a human right is rare and unusual. Will right to housing survive
the rundown of housing as a financial asset is the first immediate
question that strikes to the mind of anyone? If not, what are the
constraints of restoration? Is it possible to restore its original
status? If restoration is not possible, what are the factors
constraining its restoration? In view of the chance of its
restoration bleak, will the right to housing be compelled to survive
in tandem with the process of financialization? Then how effective
the right to housing would be as a human right in tandem with
financialization? These are some of possible questions, the
article aims at answering.

Keywords: Adequate housing, right to housing, Financialization of

housing, Housing policies etc.,

[Link]

Right to adequate housing is a human right globally recognized in

several international instruments on human rights. Right to
adequate housing is also legal rights recognized in many national
jurisdictions as shown below. But the right to housing is slowly
heading towards death on account of the over emphasis of
financialization of housing sector by the Governments all over. The
chapter, in the above context, aims at highlighting the trying times,
the right to housing is passing through across countries all over.

24
 Dr. GOGISETTI VENKATA NARASIMHA RAO AND VIKRANT
CHAOUHAN

(i)Right to Housing- Status in International Instruments

Right to housing earned a salutary place in international

jurisprudence and has been given effect to as a human right in
major international instruments like the “Universal Declaration of
Human Rights”, “International Covenant on Economic, Social and
Cultural Rights” (ICESCR) and other international human rights
charters like “Convention on the Elimination of All Forms of
Discrimination”, “International Covenant on Civil and Political
Rights”, “Convention on the Elimination of all Forms of
Discrimination Against Women”, “International Convention on the
Protection of all Migrant Workers and Members of their Families”,
“Convention on the Rights of Child” and “Convention on the Rights
of Persons of Disability”, etc., Right to housing has also given
effect to in regional human rights instruments like “European
Social Charter,” “African Charta on Human and Peoples’ Rights”,
“the African Charter on the Rights and Welfare of the Child” and
“the American Convention on Human Rights”. etc., Instruments
like “Statute of International Criminal Court” too indirectly
acknowledged the right to adequate housing like “Deportation
or forcible transfer of population” a crime against humanity and
“Extensive destruction and appropriation of property, not justified
by military necessity and carried out unlawfully and wantonly” a
war crime. “Convention Relating to the Status of Refugees” and
“Geneva Convention Relative to the Protection of Civilian
Population” too assured right to housing.

Right to housing referred in the above international instruments is

not a mere shelter with a roof but an ‘adequate housing’ which
includes “a) security of tenure, b) availability of services, c)
affordability, d) habitability, e) accessibility, f) location, and g)
cultural adequacy”. 1

1 General Comment No. 4, The Right to Adequate Housing ,Sixth Session,

[Link]

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

(ii)Right to Housing – Status in National law

Right to housing, though endorsed in the international

instruments as a human right as mentioned above, its status,
however, differs from jurisdiction to jurisdiction. Legal systems
of countries like Spain 2, Portugal3, Belgium 4, and Slovenia5,
recognized the right to housing as a constitutional right”
whereas legal systems of countries like the USA 6, UK 7, Canada8,
Australia9 France10 and Germany 11 recognized the right to
housing either as a general right as opposed to a constitutional
right or a favor granted by the government.

In India, the Constitution of India, legislations like the Protection

of Human Rights Act 1993, the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act
2006, the Right to Fair Competition and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act 2013 and
policies and schemes like National Housing Policy(NHP) 1998,
National Urban Housing and Habitat Policy 2007, National Slum
Policy 2001, Rajiv Awas Yojan 2013, contained direct or indirect
references to housing. In addition, Central Government from
time to time launched several policies, programmes, and
schemes like the Swarna Jayanti Shahari Rozgar Yojana 1997,
National Housing Policy 1998, National Slum Development
Programme 2001, Valmiki Ambedkar Awas Yojana on housing

2 Spanish Constitution, article 47,

[Link]
3 Portugal Constitution, article 65.1 [Link]
4 Belgium Constitution, article 23.3,
[Link]
5 Slovenia Constitution, article 78, [Link]
6 National Law Centre, Right to Housing Fact Sheet in the United States

[Link]
7 Homelessness Reduction Act 2017 [Link]
8 National Housing Strategy Act 2019 SC2019, C29 [Link]

11.2/[Link]
9 Housing Support, [Link]
10 Housing Rights Watch, State of Housing Rights France,
[Link] housing-rights-5
11 Housing Rights Watch, State of Housing Rights Germany,
[Link]

26
 Dr. GOGISETTI VENKATA NARASIMHA RAO AND VIKRANT
CHAOUHAN

2001, the National Urban Housing and Habitat Policy 2007, the Two
Million Housing programme 2015 and National Mission on
Sustainable Habitat 2021-2030. These policies or programmes or
schemes are nowhere explicit on whether housing is an
enforceable right, but certainly contained references to housing.

Right to housing, despite being recognized either as a human

right or a constitutional right or a legal right, or a favour by the
government in legal and policy instruments as explained in the
preceding paragraphs, is not as effective as it is intended to be
but largely remained unutilized by the large majority of the
people for whose benefit it is intended. There is no single reason
attributable to underutilization but are multiple and diverse as
mentioned in the succeeding paragraphs. Right to housing,
instead of being seen as a place for living for the social good, is
being viewed as a financial asset. As a result, right to housing in
the 21st century is seen less a human right but viewed more as a
financial asset and a means of investment. As a result, right to
housing is facing a serious threat extinction.

Will right to housing survive the rundown of housing as a financial

asset is the first immediate question that strikes to the mind of
anyone? Is it possible to restore its original status? If restoration is
not possible, what are the factors constraining its restoration? Will
the right to housing be compelled to survive, keeping in view the
chances of restoration bleak, in tandem with the process of
financialization? Then how effective, the right to housing would be
as a human right? How is right to housing going to walk in tandem
with financialization, if right to housing has to coexist with
financialization? These are some of possible questions, the
article aims at answering.

Right to housing, in spite of definite assurances or references

nationally and internationally as mentioned above, largely
remains ineffective, unutilized for reasons like practicing of
“spatial segregation”, “discrimination”, “abnormal
circumstances created by COVID 19”, “denial of housing to

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

indigenous people”, “inadequate recognition of right to housing

as part of access to justice”, “inadequate or lack of housing
strategies at national level”, “creation of crisis of
homelessness”, “lack of adequate housing facilities to persons
of disability”, “migration”, “mega-events like holding sports
events and fairs”, and “climate change” 12 etc., Right to
adequate housing continues to be violated unprecedented and
unabated during Russia-Ukraine conflict forcing thousands of
families homeless. 13 In India too right to housing largely
remains unutilized by majority, for different reasons like
“negative role of the judiciary”, “shift in policy”, “homelessness”,
“slums and inadequate settlements”, “forced evictions”,
“natural calamities”, “discrimination against lower caste
people”, “development induced displacement”, “landlessness”
etc., 14

[Link] OF FINANCIALIZATION OF HOUSING

The right to adequate housing, however, for quite some time

has been facing a serious challenge and gradually losing its
luster paving way to the idea of financialization of housing for
the reasons described above in the preceding paragraph.
Financialization of housing involves adoption of financial
policies and programmes which are intended of providing
finance the cost of housing for individuals and families through
sanction of loans or grants for the purpose of buying, taking it
on rent, causing it constructed or improvement of it. 15

Financialization is on prowl across all countries irrespective of

the political or social structure, thus compelling the right to

12 Special Rapporteur, Right to Adequate Housing, Annual Thematic Reports

[Link]
13 Special Rapporteur, Right to Adequate Housing, Protecting the Right to Adequate Housing During and

After the Violent Conflict (A77/190 Report July 2022) [Link]

input/2022/protecting-right-adequate-housing-during-and-after-violent-conflict
14 Quoted by Miloon Kothari et al, The Human right to Adequate Housing and Land (National Human

Rights Commission, New Delhi 2006) 44. [Link]

15Forwarding Note Secretary General to General Assembly along with the Report of the Rapporteur,
Right to Adequate Housing, A/67/286, 10 August 2012
[Link]

28
 Dr. GOGISETTI VENKATA NARASIMHA RAO AND VIKRANT
CHAOUHAN

housing to meet a slow death. One of the reasons attributable to

the impending death of the right to housing is either disfavoring
or failure of the present-day governments to provide home to
their citizens. Even the most prosperous countries like United
States of America and members of OECD could not provide
housing to their citizens. Governments all over, instead favored
their markets wide open and announced policies that could
attract foreign capital and investment allowing real estate
investors to take advantage of the need of mankind to live in
security. Many major cities world over, turned into “the most
attractive destination for residential real estate investments”. 16
Consequently, housing is seen less as a human right for social
good but considered more as a “means of accumulation of
wealth”. The shift occurred in 20 th century on account of
discarding of activities from the control of the State to the
private players which gradually gave way to the
financialization of the housing. In addition, factors like
“deregulation, liberalization and internationalization too
positively contributed to the growth of the financialization of
housing. Thus, the idea of financialization of housing quickly
gained currency in 21 st century and is perceived as a key
element which plays a pivotal role in the transformation of a
country and also seen as a tool for promoting access to
adequate housing. Housing policies which are launched in 21 st
century have been employed or used for promoting ownership
with the belief that access to adequate housing on ownership
basis would be achievable if housing market is appropriately
planned and enforced with “the necessary supporting legal
and institutional framework, is capable of ensuring access to
adequate and affordable homeownership for all”. 17

16 Emily, Mullin, The Financialization of Housing in the United States: How Companies Impact the Right
to adequate Housing [Link]
how-companies-impact-the-right-to-adequate-housing/
17 Ibid.

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

As a result, housing is viewed more as a saleable commodity

and a sign of “accumulation of wealth” and as a “good and
valuable security under financial instruments” and viewed less
as basic human right. The shift in focus from viewing right to
housing as a basic human right to a saleable commodity is
clearly noticeable. The shift has been taken note by the United
Nations Human Rights Council (HRC). The HRC also examined
the possible effect of the abovementioned shift in focus on the
enjoyment of the right to adequate housing as a human right
and accordingly “recommended an appropriate human rights
framework for States to address the above issues and issues of
similar nature”. 18

(i)Financialization and United Kingdom

Financialization is not a new phenomenon to the economy of

the United Kingdom. UK’s economy has been witnessing
financialization for the last four or five decades on account of
the increasing role of the “financial markets, financial motives,
financial actors and financial institutions”. Social housing too
has been influenced by the bigger role to the financial markets
and financial institutions etc., Two major factors responsible for
this transformation of social housing into increased financial
activity include (1) financial deregulation and (2) privatization
of social housing. This made the housing prices in UK go high
bringing capital gains for landlords and homeowners; while
making housing rents go high for those staying or residing in
private rented homes. Thus, the affordability of social housing
in UK fell to financialization as a victim which led to the
“financial instability, inter-generational inequality and regional
and wealth inequality” leaving many families to live inadequate
housing’ while others forced out of areas subject to
gentrification on account of rising rents. Increased role to
financial markets and financial institutions also has influenced

18Forwarding Note by the Secretary General to the General Assembly, Report of the Special Rapporteur
on Adequate Housing as a component of the right to an adequate standard of living and on the right to
non-discrimination, A/77/190, 19 July 2022.

30
 Dr. GOGISETTI VENKATA NARASIMHA RAO AND VIKRANT
CHAOUHAN

outside of the cities even, leading to disparity between the

house prices in the cities and those other parts. The idea of
financialization has its beginning in the policies adopted by the
successive governments since 1980 introducing major changes
both in social housing and financial systems. Consumer
lending also increased during this period through easy credits
to households through mortgage lending. Another significant
factor responsible for the growth of financialization is the
introduction of right to buy scheme under which the middle-
and working-class people can buy their house from the State.
Besides, mortgage lending and securitization became
important business models for international banks which
entrenched the link between the social housing and finance. 19
All the factors, as is evident from the above are cumulatively
responsible for the transformation of social housing into a
financial asset.

(ii)Financialization & United States of America

US economy like that of UK has also been influenced by

financialization. Federal Government resorted to
financialization on account of its failure to provide affordable
housing to its citizens. Federal governments, as an alternative,
favoured open market system and adopted policies that could
attract global capital and foreign investment providing leeway
to real estate private investors. Homelessness is a major issue
in United States of America in spite of its affluence.
Homelessness is prevalent in cities like California, Boston, New
York City and Washington DC. Global financial crisis of 2008
exasperated the intensity of homelessness. These
circumstances made the US governments to favour open
market system and adopt policies that could attract private
real estate investors. As a result, two corporates namely,
Blackstone and Invitation Homes took advantage of the

19 Grace Blakeley, Financialization, Real Estate and COVID 19(Community Development Journal, Volume 56,
Issue 1, January 2021) [Link]

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

situation and increased their dominance in the residential real

estate market and could expand their housing market to North
America, Europe, Asia and Latin America. These two corporates
changed several homes into leased properties, but the entry of
these two corporates changed the residential real estate
market of America. 20

(iii)Financialization & Commonwealth of Australia

The policies and practices of Australia, like that of UK and USA

favoured financialization of housing for the purpose of creation
of wealth. Successive governments of Australia favoured
financialization of housing through subsidized housing
investment or through tax incentives etc., Financialization, it is
believed, made the Australians to view the houses as a place to
park and grow capital rather a place to live in and raise a
family. Financialization brings benefits more, both to the
owner-occupiers and house investors and are among the
wealthiest lot of Australians or figuring among the people with
higher incomes. 21

(iv)Financialization & Canada

Canada is no exception to the trend of the financialization of

housing. It is believed that financialization of housing is one of
the contributing factors of the raise in the housing prices which
impacted the affordability and access. There are several
contributing factors prevalent in Canada influencing
financialization. These include “housing affordability and security
of tenure”, including “rising of house prices”, “falling interest rates”,
“mortgage securitization”, “long-term decline in purpose-built
rentals and social housing”, and “the rise of retail and institutional
investors in rental markets”; these contributing factors clearly
show housing affordability and access has been affected
preventing several individuals in Canada from accessing safe

20Supra note 16.

21 Dallas Rogers, Explainer: The Financialization of Housing and What can be done about it (The
Conversation 2017) [Link]
be-done-about-it-73767

32
 Dr. GOGISETTI VENKATA NARASIMHA RAO AND VIKRANT
CHAOUHAN

and affordable homes. Among them, lone-parent households,

visible minorities, Indigenous peoples, those with long-term
disabilities and low-income families are disproportionately
impacted by these changes.22

(v)Financialization- Europe

The origin of social housing in Europe goes back to the

industrial revolution. New conceptions are coming up in various
other parts of Europe demanding the reforms in the housing
sector.

(a)Financialization- France

In France, keeping in tune with the general trend, several

reforms, like “withdrawal of the State from the financing of
social housing”, “attack on the Livret-A”, “sale of low rent
housing”, “refocusing of allocations on very social demand”,
"reform of the statutes” etc., have been initiated in recent
years.23

(b)Financialization-Germany

In Germany too, like other European countries, focus in all fields

including housing, shifted from “use value” (i.e. used as a
“place to live or a social reproduction”) to “exchange value” (i.e.
“potential value generated from its trading”). Besides, the
above shift, the entry of financial actors like “banks, financial
institutions, private investors, financial mentality and practices”
too considerably changed housing market in Germany. The
private investors as financial actors of financialization brought
huge amounts of housing stock which included “privatized
social housing, subsidized rental market which led to the
process of privatization of welfare state”. Financialization of

22 Centre for Social Innovation, Financialization of Housing: A Social Innovation Approach to a Better
Housing system(Housing Lab Report, December 2021) [Link]
and-housing/
23 Jean-Pierre Troche, Financialization and Questioning of Social Housing in France and in Europe (2012)

[Link]

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

housing in Germany, since the global economic crisis in 2008,

underwent sea change. Besides, private and municipal housing
companies divested their housing portfolios and paid off much
of the municipal debt or to raise shareholder value. This led to
an increase in the sale transactions between 1999-2011 to 1.4
million units”. 24

(vi) Financialization - India

The Central Government of India, with a view to provide

affordable housing from time to time launched several policies,
programs, schemes like the Swarna Jayanti Shahakari Rozgar
Yojana 1997, National Housing Policy 1998, National Slum
Development Program 2001, National Urban Housing and Habitat
Policy 2007, the Two Million Housing Program 2015 and Valmiki
Ambedkar Awas Yojana on housing 2001 and National Mission on
Sustainable Habitat 2021-2030. The successive governments,
though set for themselves ambitious targets for providing
adequate housing, under various schemes and programs
mentioned above, are unable to meet those targets. The failure
compelled the government to make the housing sector wide
open to the investors and developers to construct houses for
those who can afford to buy. Thus, entry into the housing sector
became easy for builders, developers, investors. Liberalization is
the beginning of the process of financialization of housing.
Financialization began as a part of the liberalization taken up by
the government in 1991. India, post-liberalization, witnessed
uncontrolled financialization of housing. The result is that housing
came to be treated an asset by class in itself enabling the rich
investors to acquire housing for the purpose of investment and
making housing to a large number of middle- and lower-class
people unaffordable.25

24 Marco Copercini, Actors of Financialization in the German Housing System, (Geography Notebooks
2019)
[Link]
25 Miloon Kothari, Supra note 14. The City Development Authority in many cities though set for

themselves ambitious targets of creating affordable dwelling units for the urban poor, abysmally fell
short of such argets, for example, the Delhi Development Authority (DDA) could only manage to
meet only thirty-five per cent of the target set for itself.

34
 Dr. GOGISETTI VENKATA NARASIMHA RAO AND VIKRANT
CHAOUHAN

But the policies like Jawaharlal Nehru National Urban Renewal

Mission homelessness reflect change in the policy. It promotes
foreign direct investment (FDI) in the housing by facilitating
easy acquisition of land by private developers depriving the
landless or other low-income groups of their interest in the
land. The repeal of “Urban (Ceiling and Regulation) Act 1976”
too made easy for the private land developers to acquire large
chunks of land at low prices for developing it for the purpose of
commercial housing. Economic globalization and privatization
of basic services too impacted the right to housing by shifting
focus towards globalization. 26

Financialization of housing, though brings benefits as above,

has a flip side of it. It is believed that market-based housing
finance is likely to lead mount up of “real estate prices and a
decrease in the affordability”. Other consequences of
financialization include “steep reduction for the construction of
adequate housing in the budget allocation, for example,
reduction of budget allocation for construction of houses to $18
billion in 1983 from t $83 billion in 1978 in 1983 and between 1996
and 2001. The result is “less supply and more demand resulting
long wait lists accommodating a large of number of people in
inadequate housing conditions”. The decline in state
investment in public housing also led to the shrinking of private
rental investment market. The decline forced the low-income
groups to necessarily to rely upon housing finance without any
alternative option. 27

Similarly, the National Housing Policy 1988 though launched ambitiously with a target of
construction of 2 million houses every year for the “low-income groups, economically weaker
sections, Dalits, scheduled caste and tribes and women”, the target set, in reality was never
achieved.
National Policy on Resettlement and Habitation 2004 too failed to “address human rights
implications of involuntary displacement”.
“Housing for all” under National Urban Housing and Habitat Policy 2005 is confined only on to
paper and remained as an allusion.
26 Milloon Kothari, supra note 14.
27 Special Rapporteur, Right to Adequate Housing, Annual Thematic Reports, supra note 12.

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

[Link]

It is clear from the preceding paragraphs that the idea of

financialization of housing gained currency in the 21 st century
and entrenched itself as a force which cannot be discounted
al beit with the support of national governments as seen above
in the case of the United Kingdom, United States of America,
Canada, Australia, Germany, France and India and also on
account of change in the perception of people treating housing
a financial asset rather a place for living. It is evident from the
preceding paragraphs that United Kingdom for quite some
time now, has been experiencing financialization for reasons of
increased role of financial markets, financial motives etc.,
Another factor which actively contributed to the idea of
financialization of housing is introduction of “right to buy
scheme” which enables the middle and working class to buy a
house from the State. In USA, the intensity of the homelessness
created by global financial crisis in 2008, the successive US
government favoured open market system and adopted the
housing policies that attracted private equity as mentioned
above. In Australia, successive governments of Australia
favoured financialization of housing through subsidized
housing investment or through tax incentives. France in recent
years embarked on introducing several reforms like
“withdrawal of the State from the financing of social housing,
sale of low rent housing, refocusing of allocations on very social
demand, reform of statutes” etc., In Germany too, focus shifted
from “use value” to “exchange value”. So is the case with
Canada. In India, the government seemed to have been
indulged in double speak; on one hand, the Government goes
on launching from time-to-time as it is evident from the
preceding paragraphs above, one or other new housing
programs without any serious inclination of implementing them
and on other hand, seemed indulged in encouraging
financialization of housing by allotting large tracts of
government land to private builders at cheaper prices for the
construction of houses on ownership basis. It is obvious that

36
 Dr. GOGISETTI VENKATA NARASIMHA RAO AND VIKRANT
CHAOUHAN

financialization housing has gone a length too far, apparently

with the support of the government world over, from where no
point of return is possible. The impact of financialization is so
powerful, rapid and overwhelming which no amount of
resistance or effort will be able reverse the current trend of
financialization.

It is likely that undue importance to financialization “widens the

gap between rich and poor thereby leads to socioeconomic
inequality”. The result is that people across all countries are
facing the homelessness. Homelessness is a global crisis.
Keeping in view the massive adverse impact does
homelessness create special rapporteur preferred the
implementation of right to housing as a human right over
financialization. The Special Rapporteur suggested that the
right to housing is to be guaranteed as a fundamental human
right with dignity. The Special Rapporteur also suggested that
right to housing should be treated as part and parcel of right to
life with “meaningful participation in the design, implementation
and monitoring of housing policies and decisions”; besides the
Special Rapporteur also suggested the “elimination of
homelessness in the shortest possible time and stopping of the
criminalization of persons living in homelessness”; The Special
Rapporteur further suggested “prohibition and prevention of
forced evictions whenever possible”; “upgrading informal
settlements incorporating a human rights-based approach”;
Special Rapporteur’s suggestions further include “addressing
discrimination and ensure equality”; “adequate housing for
migrants and internally displaced persons”; “engaging
international cooperation to ensure the realization of the right to
adequate housing with effective monitoring” and “accountability
mechanisms” and “access to justice for all aspects of the right to
housing”.

In the circumstances explained above, giving effect to right to

housing requires a massive effort requiring coordination and
engagement internationally of private players like civil societies,

37
EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

private builders and developers on one side and government

representatives on the side. The Governments also must bear in
mind that creating adequate housing to their population is their
duty which cannot be shifted to private actors under the pretext
they are ready to build and sell the houses and simply for the
reason people are showing interest to acquire houses built for the
reason they can afford to buy or acquire on rent leaving behind
majority homeless. Right to Housing, keeping in view the rapid
financialization that is currently taking place world over, will be
able to survive only when governments all over, stop actively
supporting financialization and start treating housing as space
needed for the family to live in dignity. This change in perception
really works wonders for the poor and homeless, but change in
perception seems bleak.

38
 [Link] AND [Link]

RIGHT TO EDUCATION OF

SCHEDULED TRIBES IN INDIA - A

STUDY

[Link]* AND [Link]**

* Ph.D. Research Scholar (Full Time) Department of Political

Science & Public Administration, Annamalai University,
Chidambaram, Tamil Nadu, India – 608 002

** Associate Professor, Department of Political Science &

Public Administration, Annamalai University, Chidambaram,
Tamil Nadu, India – 608 002.

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

Abstract

Education aims to bring out a person's innate traits so they

can fully develop as a person. Accordingly, it has been defined as
the act or art of fostering an individual's diverse physical,
intellectual, artistic, and moral qualities. a Scheduled Tribe. The
root causes of their educational exclusion as well as their social
and economic history are likewise glaringly different. The primary
sector employed about 87 percent of the principal employees
from these localities. Compared to the national average of 74.04
percent, Scheduled Tribes have a literacy rate of about 47
percent. Women from Scheduled Tribes make up more than 75%
of this group. The cumulative effect has, not surprisingly, resulted
in a decrease in the percentage of Scheduled Tribes below the
are significantly higher than the national average and below the
poverty line. With particular attention to the Right to Education Act
of 2010, the study aims to investigate the current situation of
education and the understanding of disadvantaged groups
regarding the right to education as a fundamental human right.

Key Words: Marginalization, Right to Education Act of 2010,

Scheduled Tribe, Economic

INTRODUCTION

Education is a fundamental human right and essential for

the exercise of all other human rights. It promotes individual
freedom and empowerment and yields important development
benefits. Education is a powerful tool by which economically and
socially marginalized adults and children can lift themselves out
of poverty and participate fully as citizens. Yet millions of children
and adults remain deprived of educational opportunities, many
as a result of poverty. Education seeks to unfold the latent
qualities of a person, thereby giving full development to the
individual. As such, it has been described as the act or art of

40
 [Link] AND [Link]

developing, or creating, or cultivating the various physical

intellectual, aesthetic and moral faculties of the individual. In
India, the total literacy rate is 65.38%. The male literacy rate is
75.85% and the female literacy rate is 54.16%. The literacy rate in
West Bengal is 69.22 %, with the male literacy rate is 77.58% and
the female literacy rate is 60.22%. The literacy rate of Scheduled
Tribes in India is 59.17% for males and 34.76% for females (census
of India, 2002). Scheduled Tribes (ST) are among the most socially
and educationally disadvantaged groups in India. Scheduled
Tribes and mostly women of the two communities have different
histories of social and economic deprivation, and the underlying
causes of their educational marginalization are also strikingly
distinct. The study intends to explore the state of education and
the awareness of disadvantaged groups towards the right to
education as a fundamental human right with special reference
to the Right to Education Act 2010. After reviewing the literature, it
is noted that though different research works have been carried
out on access to education or oppression of the caste and tribe
and so on, the idea to study the state of education, gender
discrimination and more importantly the awareness about right
to education as a fundamental human right is not addressed
fully. This may be due to the fact that the The right to Education
Act is quite a new phenomenon and thus not has been addressed
as it should. The present study is analytical. It is constructed
through the analysis of secondary data and the history of the
educational policies and acts in India. Published work of authors,
documents of government policies, reports of Ministry of Human
Resource Development, and reports of United Nations, UNESCO,
and Census of India comprised the secondary data.

FACTORS AFFECTING DISPARITY IN EDUCATION

The factors impeding education among indigenous the

community can be categorized as institutional and no
institutional.

LANGUAGE OF INSTRUCTION

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

 Medium of teaching that is English is a foreign language

for indigenous children.
 Unable to fully comprehend classroom teaching and
Activities or understand the texts properly.

Table 1. Educational disparity between ST/ SC and general

population in India.

Year Scheduled caste Scheduled tribe General

Male Femal Person Mal Femal Person Male Femal Persons

e s e e s e

1961 16.96 3.29 10.27 13.83 3.16 8.53 40.4 15.35 28.30
0

1971 22.36 6.44 14.67 17.63 4.85 11.30 45.9 21.97 34.45
6

1981 31.12 10.93 21.38 24.5 8.04 16.35 56.3 29.76 43.57
2 8

1991 49.91 23.76 37.41 40.6 18.19 29.60 64.13 39.29 52.21
5

2001 66.64 41.90 54.69 59.17 34.76 47.10 75.2 53.67 64.84
6

Teacher related problems

 Indigenous children’s inability to establish a

communication link with the teacher results in low
attendance and high dropout rates;2
 Teacher absenteeism;
 Non-indigenous teachers having an attitude of
indifference to tribal languages, traditions, cultures, and
lifestyles fail to perceive the human values ingrained in
tribal folk cultures;
 No special training in tribal languages;

42
 [Link] AND [Link]

 Quite a thin Relationship between teachers, students, and

tribal villagers;
NON-INSTITUTIONAL FACTORS

 Physical isolation and remoteness and Geographical

barriers
 Most tribal habitations in forest and hilly areas
 Poor accessibility and connectivity
 Travelling a long distance every day to attend school
becomes a time factor
ECONOMIC UNCERTAINTY

 Subsistence economy;
 High opportunity costs of tribal children;
 Unable to meet direct costs of schooling;
 Many benefits do not reach the beneficiaries;
SOCIO-CULTURAL DISCONTINUITY

 Education is not given much priority, in a society

dominated by the struggle for survival, options are limited.
 Social customs, cultural ethos, lack of awareness of the
value of formal education conflict and gap between the
home and school;
 Gender bias;
DIFFICULTIES AT LEVELS OF POLICY, PLANNING, IMPLEMENTATION,
AND ADMINISTRATION

1. Policies and programs formulated for indigenous welfare are

not favorable in their environment. Consequently, no worthwhile
policy for indigenous education has been formed.

2. Policies lack sensitivity to tribal problems and failed to

understand indigenous social reality.

INDIAN SCENARIO OF EDUCATION OF SCHEDULED TRIBE

Education has not yet been the priority of the tribal

communities and is not an integral part of tribal culture. This has
been a harsh reality despite 58 years of ‘planned development’ in

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

the country. In their perception of life, education has failed to

emerge as a part of their survival strategy. Since post-
independence in India, the literacy level has been consistently
down till date from the general population. Table 1 shows the
educational disparity between the tribal population and the other
communities.

Lack of educational atmosphere and infrastructure at home as

well as dependence on the subsistence economy force their
children out of school at the primary and early secondary stages
that time the boys are ready for odd jobs, and the girls for
domestic chores for helping their working mothers. The
Government Policy of protective discrimination and a string of

Development programs have succeeded in giving some relief to

the relatively better-off section among the indigenous
community but have failed to arrest the process of
marginalization of the average tribal people who have been
pushed to the fringe in all spheres of life- economic, social,
educational, cultural, and political. It has been widely
acknowledged that the socio-economic condition in rural India
has constrained the process of primary education and the social
inequalities of caste, class, and gender have been identified as
the major causes of educational deprivation among children in
India. The literacy rate for Scheduled Tribes is low at 47.10 % in
India according to the Census of India, 2002, which is well below
the national average. Especially the female literacy rate among
tribes (34.76% as per Census

of India, 2001) is strikingly low. High levels of absenteeism and

alarming dropout rates characterize tribal areas. Though the
Right to Education Act 2010, has been accepted nationally and
internationally, how much of these provisions are successful in
enhancing educational facilities still remains a question. Nearly
45.02% of the tribal population falls in the age group of 0 to 14
years. Out of every six children in India, one child is a tribal child.
According to the 61st National Sample Survey, current attendance
rates for children in the age group 5- 14 years are 72.6% for

44
 [Link] AND [Link]

Scheduled tribes in rural India. Similarly, the situation is also

serious regarding school dropout of these socially
underprivileged groups. Official data on the educational progress
of scheduled tribes is more remarkable than in past years if only
seen in quantitative data but the qualitative data show a different
picture. Though there has been a considerable decline in the
drop-out rate of STs, much still needs to be done to uplift of these
groups in upper primary and secondary education. The
proportion of children out of school in remote tribal areas is
usually higher than among tribal children living in non-tribal
areas. The main reasons for this are the limited educational
infrastructure available in tribal areas because of their
remoteness; indigenous hamlets being cut off from main villages
or well-populated rural areas by geographic features; the
difficulties faced by children living in smaller habitations in
accessing existing formal schools; and so on. Other reasons for
low school enrolment among Scheduled Tribe children include
the reluctance of Scheduled Tribe families to educate their
children - in addition to the high illiteracy among Scheduled Tribe
parents; they may not value the education available, particularly
in relation to its opportunity costs. Children are crucial family
workers in the indigenous economy which includes agriculture as
a main occupation, cattle grazing, labor on work sites, collecting
firewood or other minor forest produce, stone quarrying, mining,
and home-based work such as processing forest produce. Low
levels of learning are found among indigenous children not only
because of household factors and problems with the language of
instruction where this is not their mother tongue but to other
school-related variables. The District Primary Education Program
has shown that the achievement gap between tribal and non-
tribal children can be narrowed by attention to classroom
transactions and the school environment. The poor tribal child
gets excluded in terms of getting support from home, family,
peers, and siblings. The parents in general have no check on the
learning of the child. None of the family members ensure whether
the child is regular at school, attendance, homework, class work,

45
EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

and learning at home. The parents seldom meet the teachers or

go to the school in order to interact with the school staff in order
to understand the performance of their child. The parents remain
excluded and generally avoid interacting with the teachers as the
majority of them do not have the minimum literacy to understand
what is being taught in the school. Here begins the cycle of
exclusion among the indigenous children. This gradually
snowballs to dropping out among the tribal children to settle
down with little education from school as well as lower
employment levels, and this process has been repeating from
generation to generation resulting in low levels of participation
among the tribal children in education over the past six decades
leading to exclusion from the mainstream of development in the
country. Almost all indigenous children are first-generation
learners, the first ones in their entire generation to go to school
and receive an education. They come to school without any
orientation. Their home environment is both discouraging and
non-facilitating to education. As there is no educational
environment at home, their parents fail to provide any
educational guidance to their children. This may lead to poor
academic achievement and a less healthy attitude towards life
and society. Participating in schools and successfully completing
the whole cycle with no one at home to support and understand
schooling processes is an uphill task for these little learners. They
lack knowledge of time management, and school finances and
are less likely to encounter a welcoming environment in school.
Entering the school means for them that they are entering into an
alien physical and social environment that they, their family, and
their peers have never experienced. They are faced with leaving a
certain world in which they fit for an uncertain world where they
know they do not fit in. In Fact, indigenous children find
themselves ‘on the margin of two cultures’ and have to offer to
renegotiate relationships at school and at home to manage the
tension between the two. As a result, they become the highest-
risk students for dropping out.

46
 [Link] AND [Link]

RIGHT TO EDUCATION ACT, 2010

The Right of children to Free and Compulsory Education Act came

into force on April 1, 2010. This is a historic day for the people of
India as from this day the right to education will be accorded the
same legal status as the right to life as provided by Article 21A of
the Indian Constitution. Every child in the age group of 6-14 years
will be provided 8 years of elementary education in an age-
appropriate classroom in the vicinity of his/her neighborhood. Any
cost that prevents a child from accessing school will be borne by
the State which shall have the responsibility of enrolling the child
as well as ensuring attendance and completion of 8 years of
schooling. No child shall be denied admission for want of
documents; no child shall be turned away if the admission cycle
in the school is over and no child shall be asked to take an
admission test. Children with disabilities will also be educated in
mainstream schools.

All private schools shall be required to enroll children from weaker

sections and disadvantaged communities in their incoming class
to the extent of 25% of their enrolment, by simple random
selection. No seats in this quota can be left vacant. These children
will be treated on par with all the other children in the school and
subsidized by the State at the rate of average per-learner costs in
the government schools (unless the per-learner costs in the
private school are lower).

RTE has been a part of the directive principles of the State Policy
under Article 45 of the Constitution, which is part of Chapter 4 of
the Constitution. And rights in Chapter 4 are not enforceable. For
the first time in the history of India, we have made this right
enforceable by putting it in Chapter 3 of the Constitution as Article
21. This entitles children to have the right to education enforced as
a fundamental right.

UNIVERSAL DECLARATION OF HUMAN RIGHTS AND POLICIES

The universal declaration of human rights has envisaged the

following right

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

ARTICLE 26:

Everyone has the 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.
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 the maintenance of
peace.
Parents have a prior right to choose the kind of education
that shall be given to their children.
After more than twenty years of armed conflict under the
dictatorship of President Marcos, on the 26th of February, 1986, the
People's Power Revolution finally forced the Marcos family to flee
the Philippines. The Filipino people were left to rebuild their
country, but they soon found that changing the corrupt and
abusive structures that remained was an even more difficult
challenge. Despite the new government¹s repeated assurances to
protect human rights, serious violations were reported with
disturbing regularity... perhaps the concept of human rights
remained vague to many Filipinos, or most were unaware of their
ability to assert these rights. A new generation of human rights
activists needed to be educated. Only when people understood
their rights could they stand up for them.

Education for Freedom was organized to promote human rights

at every level of society, beginning with the Filipino youth. Human
rights should be a part of not just the law, but everybody's lifestyle.
By working to promote awareness, Education for Freedom hopes
not only to respond to human rights violations but to stop them
from happening in the first place.

48
 [Link] AND [Link]

THE RIGHT TO EDUCATION: ARTICLES 13 AND 14 OF THE

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS (1966)

Article 13

 The States Parties to the present Covenant recognize the

right of everyone to education. They agree that education
shall be directed to the full development of the human
personality and the sense of its dignity, and\ shall
strengthen the respect for human rights and fundamental
freedoms. They further agree that education shall enable
all persons to participate effectively in a free society,
promote understanding, tolerance, and friendship among
all nations and all racial, ethnic or religious groups, and
further the activities of the United Nations for the
maintenance of peace.
 The States Parties to the present Covenant recognize that,
with a view to achieving the full realization of this right: (a)
Primary education shall be compulsory and available free
to all; (b) Secondary education in its different forms,
including technical and vocational secondary education,
shall be made generally available and accessible to all by
every appropriate means, and in particular by the
progressive introduction of free education; (c) Higher
education shall be made equally accessible to all, on the
basis of capacity, by every appropriate means, and in
particular by the progressive introduction of free
education; (d) Fundamental education shall be
encouraged or intensified as far as possible for those
persons who have not received or completed the whole
period of their primary education; (e) The development of
a system of schools at all levels shall be actively pursued,
an adequate fellowship system shall be established, and
the material conditions of teaching staff shall be
continuously improved.

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

 The States Parties to the present Covenant undertake to

have respect for the liberty of parents and, when
applicable, legal guardians to choose for their children
schools, other than those established by the public
authorities, which conform to such minimum educational
standards as may be laid down or approved by the State
and to ensure the religious and moral education of their
children in conformity with their own convictions.
 No part of this article shall be construed so as to interfere
with the liberty of individuals and bodies to establish and
direct educational institutions, subject always to the
observance of the principles set forth in paragraph 1 of this
article and to the requirement that the education given in
such institutions shall conform to such minimum
standards as may be laid down by the State.
Article 14

Each State Party to the present Covenant which, at the time of

becoming a Party, has not been able to secure in its metropolitan
territory or other territories under its jurisdiction compulsory
primary education, free of charge, undertakes, within two years, to
work out and adopt a detailed plan of action for the progressive
implementation, within a reasonable number of years, to be fixed
in the plan, of the principle of compulsory education free of
charge for all.

ARTICLE 28 OF THE CONVENTION ON THE RIGHTS OF THE CHILD

(1989)

1. States Parties recognize the right of the child to education

and with a view to achieving this right progressively and
on the basis of equal opportunity, they shall, in particular:
2. Make primary education compulsory and available free to
all;

50
 [Link] AND [Link]

3. Encourage the development of different forms of

secondary education, including general and vocational
education, make them available and accessible to every
child, and take appropriate measures such as the
introduction of free education and offering financial
assistance in case of need;
4. Make higher education accessible to all on the basis of
capacity by every appropriate means;
5. Make educational and vocational information and
guidance available and accessible to all children;
6. Take measures to encourage regular attendance at
schools and the reduction of drop-out rates.
1. States Parties shall take all appropriate measures to ensure that
school discipline is administered in a manner consistent with the
child’s human dignity and in conformity with the present
Convention.

2. States Parties shall promote and encourage international

cooperation in matters relating to education, in particular with a
view to contributing to the elimination of ignorance and illiteracy
throughout the world and facilitating access to scientific and
technical knowledge and modern teaching methods. In this
regard, a particular account shall be taken of the needs of
developing countries.

DISCRIMINATION IN EDUCATION: DEFINITIONS FROM THE

CONVENTION AGAINST DISCRIMINATION IN EDUCATION (1960)

ARTICLE 2

The establishment or maintenance of separate

educational systems or institutions for pupils of the two
sexes, if these systems or institutions offer equivalent
access to education, provide teaching staff with
qualifications of the same standard as well as school
premises and equipment of the same quality, and afford
the opportunity to take the same or equivalent courses of
study;

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

The establishment or maintenance for religious or

linguistic reasons, of separate educational systems or
institutions offering an education that is in keeping with
the wishes of the pupil’s parents or legal guardians, if
participation in such systems or attendance at such
institutions is optional and if the education provided
conforms to such standards as may be laid down or
approved by the competent authorities, in particular for
the education of the same level;
The establishment or maintenance of private educational
institutions, if the object of the institutions is not to secure
the exclusion of any group but to provide educational
facilities in addition to those provided by the public
authorities if the institutions are conducted in accordance
with that object, and if the education provided conforms
with such standards as may be laid down or approved by
the competent authorities, in particular for the education
of the same level.

ARTICLE 4

The States Parties to this Convention undertake furthermore to

formulate, develop and apply a national policy which, by methods
appropriate to the circumstances and to national usage, will tend
to promote equality of opportunity and of treatment in the matter
of education and in particular:

 To make primary education free and compulsory; make

secondary education in its different forms generally
available and accessible to all; make higher education
equally accessible to all on the basis of individual
capacity; assure compliance by all with the obligation to
attend school prescribed by law;
 To ensure that the standards of education are equivalent
in all public educational institutions of the same level, and
that the conditions relating to the quality of the education
provided are also equivalent;

52
 [Link] AND [Link]

 To encourage and intensify by appropriate methods the

education of persons who have not received any primary
education or who have not completed the entire primary
education course and the continuation of their education
on the basis of individual capacity;
 To provide training for the teaching profession without
discrimination.
CONCLUSION

India has emerged as a global leader and a strong nation at the

turn of this century. Education is the key to the task of nation-
building as well as providing the requisite knowledge and skills
required for sustained growth of the economy and to ensure
overall progress. The Scheduled Caste and Scheduled Tribe
populations have been discriminated against and confined to the
lowest rungs of social and economic hierarchies. The awareness
of the Scheduled Tribe population is very low. The tribal families
are mostly unaware of their right to education and thus fail to
acquire the same. Moreover, most of the children are first-
generation learners and consequently, they are not properly
guided by their parents. To them going to school means getting
enough food through the mid-day meal program. Another
important fact is that to date the scheduled tribes have not been
brought into the mainstream society to the extent to which the
scheduled castes have already entered with the help of Dr.
Ambedkar. The awareness among scheduled caste males is high
and that of the female is also present more than among the tribal
population. The problem of lack of awareness on the part of the
teaching staff is also an influencing factor in aggravating the
situation. During the last six decades, the trend of upward mobility
is noticed among Scheduled Castes and Scheduled Tribes
because of special treatment given to them through reservations,
provisions for various incentive schemes, the opening of
residential schools, and more access to government jobs, etc. but
certain minorities feel that they are deprived of such advantages
and are lagging behind in all aspects of life as compared to the
majority group Scheduled Tribe and Scheduled Caste in India

53
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have far more limited access to both educational and

employment resources. The qualitative gap between the
educational availability to this majority and the dominant elite
minority has been widening alarmingly over the last two decades.
Thus there is no true equality of opportunity for them. From the
given social system educational disparity is there. How or whether
the different provisions and various measures have helped that
section of the population is still questionable. The educational
achievement of the indigenous group is still poor. But the
empowerment scenario for this vulnerable group has not been
achieved to date. Scheduled tribes in India have far more limited
access to both educational and employment resources. For this
group, the hardships associated with living in a 'low-income'
developing nation and the deprivations associated with minority
status are compounded by a patriarchal value system.
Socioeconomic development is associated with an overall
improvement in the standard of living of scheduled groups.
Scheduled groups considered to be more developed exhibit less
gender inequality in terms of access to both education and
employment. The Government of India, since independence, has
been formulating various policies and programs for the
development of disadvantaged groups. The endeavor is to ensure
conditions in which the minorities are assured of their
constitutional and legal rights, and educationally and
economically they are at par with the national mainstream.
During the last six decades, the trend of upward mobility noticed
among Scheduled Tribes is because of special treatment given to
them through reservations, provisions for various incentive
schemes, the opening of residential schools, and more access to
government jobs, etc but certain minorities feel that they are
deprived of such advantages and are lagging behind in all
aspects of life as compared to the majority group. Indian
governance at the Central as well as State level, has not, till now,
addressed itself totally, comprehensively, and consistently to
measures that would bring economic freedom, educational
equality, and true equality of opportunities to STs in an integrated

54
 [Link] AND [Link]

and comprehensive manner. Developmental assistance has been

and is usually sporadic, patchy, truncated, and inadequate.

REFERENCES

1. Ambedkar BR (1916). Castes in India: Their Mechanism,

Genesis and Development. Paper presented at the
Anthropological seminar of Dr. Alexander Goldenweiser,
New York.
2. Bagai S, Nundy N (2009). Tribal Education:A Fine
[Link]- Catalyst for Social Change.
3. Census of India (2002). Primary Census Abstract: Census
of India 2001. New Delhi: Government of India.
4. Chalam KS (2000). Promoting Schooling Among
Scheduled Caste Children in Andhra Pradesh. Study
sponsored by the Andhra Pradesh DPEP, Government of
Andhra Pradesh. Visakapatnam: Academic Staff College,
Andhra University.
5. Huberman AM (1979). The present situation and future
prospects. In Mialaret, G. (Ed.). The child’s right to
education. Paris: UNESCO:57- 76.
6. Khare, R. S. 1991. The Untouchable's Version: Evaluating
an Ideal
7. Ascetic. In Social Stratification, edited by D. Gupta. New
Delhi: Oxford University Press.
8. Lewin KM (2007). Improving Access, Equity and Transitions
in Education: Creating A Research Agenda. CREATE
Pathways to Access. Research Monograph No. 1. Centre
for International Education. University of Sussex.
9. Sujatha K (2002). Education among Scheduled [Link]
Govinda, R. (ed.). India Education Report: A Profile of Basic
Education. New Delhi: Oxford UniversityPress.
10. Tomasevski K (1992). Prison Health: International
standards and national practices in Europe, Helsinki
Institute for Crime Prevention and Control, Helsinki 21st ed.

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EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

11. Volio F (1979). ‘The Child’s Right to Education: A Survey’ in

G Mialaret (ed), The Child’s Right to Education (Paris,
UNESCO, 1979). pp.19- 22
12. Weber M (1921). Class, Status, Party. Essays in
Sociology,trans. Hans H. Gerth and C. Wright Mills. New
York: Oxford Uni
13. Prof. A. Jayakumar & P. Palaniyammal, socio-economic
status of scheduled tribes in kalrayan hills, International
Journal of Research Granthaalayah, [Link]-
0530,Vol.4, Issue.3, Year. March 2016.
14. Government of Tamil Nadu Department of Adi Dravidar
and Tribal Welfare, Secretariat, Chennai -600 009, March
2015
15. Goa University, Constitutional Safeguards and Welfare
Measures Relating to Scheduled Tribes: A Critical Study
With Reference To the State of Goa, V.M. Salgaocar College
of Law Miramar, Panaji, Goa, year 2020.

16. [Link]
nutritious-department/
17. [Link]
18. [Link]
19. [Link]
ment_on-going
20. [Link]
:~:text=Under%20the%20scheme%2C%20Scheduled%20Trib
es,interest%20of%204%25%20per%20annum.
21. [Link] & [Link], Impct of tribal welfare
schemes on the livelihood of scheduled tribes in kolli hills
Namakkal District of Tamilnadu, Vol.29, year.2020.
22. [Link]
:~:text=Under%20the%20scheme%2C%20Scheduled%20Trib
es,interest%20of%204%25%20per%20annum.
23. [Link] Rao,(2013) ‘‘ Socioeconomic Status of Scheduled
Tribes,’’ MERC Global International journal of management,
vol.1 Issue 4, pp.36.48.

56
 [Link] AND [Link]

24. Jayakumar A, Palaniyammal P. Socioeconomic status of

scheduled tribes in Kalrayan hills. International Journal of
Research – Granthaalayah. 2016;4(3):22-30.
25. Suresh B. Tribal development in India: Some observations.
Tribal Development Issues in India. 2019; 1-16.
26. Parthasarathy K. and [Link], Impact on Tribal
Continuing Education Programme, Pavai Printers (p)Ltd,
Chennai,2006, p. 065.
27. hukya. D, (2014), “Empowerment of Tribal Women through
Education in Andhra
28. Pradesh”, International Journal of Innovative Technology
& Adaptive Management

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VIOLATION OF THE BASIC HUMAN

RIGHT TO LIFE - PRACTICE OF

NARABALI

Dr. Mrs. Cinthia. Jude*

* M.A., M.T.M., M. Phil., PGDIA, Ph. D, Assistant Professor,

Department of History and Tourism, Stella Maris College,
(Autonomous), Chennai – 86

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 DR. MRS. CINTHIA. JUDE

Introduction

Life isn't about finding yourself. Life is about creating yourself.

- George Bernard Shaw

-
Human Rights are the basic rights that humans inherit and enjoy,
for the element of being human. These human rights are neither
created nor abrogated by any government. Human rights are
being enjoyed by all, violated by few and missed by many others.
The aspect of religion is something which is prevalent only when
there is stability or absolute instability in an individual’s life.
Prayers to the Gods, offerings sacrifices, tributes, homages, etc.
take place when an individual is following a particular religious
faith or tradition. Religious practices are intended to bring about
inner peace and bring about an overall transformation in the
human self. Several practices of various religious faiths are
harmless and spiritual. There are several other practices and
traditions in religions like animal or human sacrifice which end up
in blood shed. This research study intends to focus on the practice
of human sacrifice which is locally known as Narabalai. The origin
of the practice of Narabali, the prominence of the practice in the
Hindu religion, in specific places in India, the violation of the basic
human right to life through the practice, the faith of the people in
the fulfilment of practice have been discussed.

Human Sacrifice

Sacrifice is perhaps the most universal and intense form of ritual.

- Richard .D. Hecht

Religion id based on man’s belief in a supreme being. Man carries

out several rituals and procedures to please that supreme being.
In order to study religion, it becomes mandatory to study the
importance of religious sacrifice. Understanding sacrifice, much
like interest in and attention to myth, has been a persistent issue

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throughout religious studies. Religious phenomena are usually

accompanied around the world in hopes of formulating a
systematic understanding of religion, where sacrifice has been
particularly prominent and in many cases troubling. The Latin
word sacrificium, derived from sacer meaning “Holy” and facer
meaning “to make” is the etymological meaning for the word
Sacrifice. The Sanskrit word Yajna, is derived from Yaj, meaning “to
offer” or “to present”. It is also defined as gift giving, to present
something or transfer something28.

Human Sacrifice had been practiced as early as the Stone Age. It

also occurs in the oldest surviving texts the Vedas. Human
sacrifice was once widespread among ancient German, early
Europeans, Ancient Near East, Arabs, Turks, Indonesia, West Africa,
native Americans and Polynesia. Human sacrifice is more typical
of marginal or minor tribes. Human sacrifice is found more
frequently among barbarians and semi – civilized people.
Surprisingly the cultures that practiced human sacrifice had
strong governments. Human sacrifice is a nasty business. It is
perhaps not surprising that people often tried to minimize its
emotional and final costs. The victims were often very young or
very old, a criminal, a slave or a prisoner of war. The victims of
human sacrifice were often strangers to the marginal members
of the community which practiced human sacrifice 29.

Origin of Narabali

Human sacrifice is a popular practice of killing one or more

humans, as an offering to Divinity as a ritual. Human sacrifice had
been in practice in various cultures all around the world. The
victims of human sacrifice were typically killed in a ritualistic
manner in order to please Gods. Similar practices have been
found in various tribal societies termed as cannibalism and
headhunting.

28 Jeffrey Carter, (Ed.), Understanding Religious Sacrifice: A Reader, (New York. 2003), pp.2-3.
29 Jan N. Bremmer, (Ed.), The Strange World of Human Sacrifice, (Belgium, 2007), pp. 2-3

60
 DR. MRS. CINTHIA. JUDE

Human sacrifice in India is popularly known as "Narabali". "Nara"

means man and "bali" means sacrifice. Human sacrifice has
become a rare phenomenon in the present scenario. There have
been 3 cases through 2003–2013 where 3 men have been
murdered in the name of human sacrifice 30. The earliest
substantiation for human sacrifice in the India dates back to the
Bronze Age Indus Valley Civilization. An Indus seal from Harappa
illustrates an upside-down female figure with legs outspread and
a plant dispensing from her womb. The converse side of the seal
depicts a man holding a sickle and a woman settled on the
ground in prayer. Historians and scholars interpret this as a
human sacrifice in honor of the Mother-Goddess. Human and
animal sacrifice became less common during the post-Vedic
period, as ahimsa (non-violence) became part of the
mainstream religious thought.

There are references to Narabali/ human sacrifice in certain

Indian Sources. The first reference to that of a Saivite saint called
Siruthondar and the account takes place in the Periyapuranam a
significant Tamil Literary Work. He was one of the 63 Saivite saints
of Tamil Nadu. He lived during the reign of Mahendra Pallava, 1400
years ago. A Bairagi (One whose principal deity is either Shiva or
Vishnu or his incarnations, like Rama and Krishna. A mark (tilak)
on the forehead and ear are their identification marks) 31 came
and asked him to offer human meat of young five year old.
Siruthondar, served as the commander in Chief of the Pallava
army. He was a man of words and he was forced to cook his own
son who fit the description and served the devotee. The Bairagi
insisted that Sirithondar and his son had to join him for lunch.
Sirothondar said that he was out playing and that he wouldn’t
come. At the end his son came alive and the Bairagi disappeared.
Later it was understood and believed that it was Lord Siva who
came as a meat eater to test his Siuruthondar’s devotion. This is
an instance of God himself asking the devotee in person to offer a
human sacrifice.

30 Pandey, Mahesh "Priest 'makes human sacrifice'", BBC News, (2003-03-27).

31 [Link]

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Another instance is of Adi Sankara lived 2000 years ago and

strived to eliminate the bad elements in Hinduism. He was
considered an unruly element in the Hindu religion. A Kabalika,
(Kāpālikas referred to the "skull-men". The Kāpālikas carried a
skull-topped trident and an empty skull for begging) 32, asked for
his body to be sacrificed to the God. He agreed as ascetics never
care for their body. He was ready to sacrifice when one of his
disciples took the form of Narasimha and tore the Kabalika into
pieces.

Purushamedha Yajna is mentioned in the Vedas. There had been

an instance in the Vedas where a boy was tied to a pole and was
later released by the revolutionary Vedic Poet Visvamitra to which
none objected. There are other references where only human or
animal images made out of rice flour were sacrificed in the fire 33.
The word ‘Puruṣamedha’ meaning sacrificing a human being
occurs in Āpastamba Śrautasutras and Baudhāyana
Srautasutras. It is a type of Somayāga spread over five days.
Whether a Puruṣa (human being) was actually sacrificed or
whether the whole act had been symbolical, is difficult to
ascertain. There are references to narabali in the Śatapatha
Brāhmana and the Taittiriya Samhitā also. According to other
scholars, the ritual was only symbolical practice where after the
Paryagni-karaṇa rite the āgnidhra priest goes round the human
beings and the animals with a lighted torch after which the
human beings are released and only goats are sacrificed .

Human sacrifices were performed along with the worship of

Shakti until the early modern period, and in Bengal till the early
19th century34. This practice is not accepted by a major segment
of Hindu culture. Still certain Tantric cults perform human
sacrifice. Human sacrifice has been performed in the Hatimura
Temple, a Shakti temple situated at Silghat, in the Nagaon district

32 Gavin Flood, The Blackwell Companion to Hinduism, ( John Wiley & Sons, 2008), pp. 212–213.
3333 [Link]
34 Julius Lipner, Hindus: their religious beliefs and practices, (New York, 1994), p. 185.

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 DR. MRS. CINTHIA. JUDE

of Assam35. It was built during the supremacy of King Pramatta

Singha in 1667. It was a prominent center of Shaktism in ancient
Assam. The main deity is Goddess Durga in the form of
Mahisamardini, slayer of the demon Mahisasura. It was an
extremely ritualised act, and the procedures took many months to
complete. Narabali is a deep-rooted faith in parts of Tamil Nadu.
Villagers of Melur and surrounding regions assert the 'great
benefits' of human sacrifice. They believed that it was the ultimate
method to appease Gods. The ritual mostly included a yagam
after which the victim's throat was cut with a knife and the
overflowing blood offered to the deity, whose weapons and
bodies were tarnished with the bloody offering 36.

The Khonds, an indigenous tribe of India, residing in the tributary

states of Odisha and Andhra Pradesh, became tarnished due to
the British occupation of their district in 1835 37. The prevalence and
cruelty of the human sacrifices they practiced led to the practice
being abolished. Many cultures show evidences of prehistoric
human sacrifice in most of their mythologies and religious texts,
but have faded away before the onset of historical recordings.

Human sacrifice carried out by the Khonds

The tendency to assign human attributes to God was a marked

peculiarity in almost all systems of religions. The mortification of
flesh was gratifying to the divinity. When children were several in
the family they were readily spared. Penance and mortification
formed a part of religion. The difficulty of keeping in a large body
of prisoners of war had often suggested the necessity of
disposing them off by slaughter in the name of religion 38.

In India, Human Sacrifice was widely practiced in Khondmals

inhabited by Khonds and Ghonds of Ghumsur. The Khonds called

35 Baruah, B. K.; Sreenivasa Murthy, H. V. The Hatimura Temple. Hindu books universe, Dec 12,
2009.
36 [Link]
Tamil-Nadu/articleshow/[Link]
37 James Hastings, (Ed.), Encyclopedia of Religion and Ethics, vol 9. (Kessenger Publishing, 2003), pp.

115 - 119.
38 Rājendralāla Mitra (Raja), On Human Sacrifices in Ancient India, (Bengal, 1876), p. 77

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the human victims as Toki or Kedi. In 1837, Captain Campbell

obtained permission from the British Raj to abolish the practice
and was successful in saving 29 victims. On March 16th 1841, Lord
Elphinstone adopted a steady, progressive and systematic policy
to eradicate the superstition behind the religious practice.
Campbell was followed by his successors in saving victims. A
game called Meriah Karsana was a prominent game played by
the indigenous tribes Murias who lived in the Khonds region where
a gang of boys would kidnap some boys one after the others and
sacrifice them.

The Meriah sacrifice was a defensive strategy to save their

existence in a subsistence economy against the devastation of
the outsiders. Origin of the Meriah sacrifice can be traced from
the legend of wild tribes. The legend said that there were two
females, Karaboodi and Tharthaboodi, who had two sons. The son
of Karaboodi was asked to by his mother to sacrifice her to
propitiate the Mother Goddess Thadi Pennu. The blood was drunk
(absorbed) by mother earth and resulted in productive yielding.
The Mother Goddess Thadi Pennu ordained the Khonds to repeat
this ritual annually in order to preserve their existence. The Khonds
believed that Tumeric and other crops got their red colour from
the blood of the Meriah39. Thus, the practice gained prominence in
spite of being prevented. These sacrifices have significant
purposes and differed from person to place and circumstance.

The Purpose of Narabali

Human Sacrifice benefits communion between humans and

Gods to renew the cosmos and thus secure common wellbeing 40.
The practice of Narabali had different purposes based on context
and location. Mostly the human sacrifices had the intention of
endearing the Gods' favor in warfare. In the communities of the
Khonds, every household has to shed the blood of a human victim
when its principal crop was sown or planted. It was also carried

Sir John Campbell, Human Sacrifices in India, (New Delhi, 1986), p. 5

39
40Vera Tiesler, Andrea Cucina, (Ed.), New Perspectives on Human Sacrifice and Ritual Body
Treatments in Ancient Maya Society, p.19

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 DR. MRS. CINTHIA. JUDE

out as a prelude to the harvest as an obligatory ritual. There were

additional human offerings throughout the season. If there was a
bad health condition among the community or if the cattle were
attacked by diseases or wild animals, then human sacrifices were
performed. The headman offered a human sacrifice for his well –
being. This was supported by the community as the head man’s
wellbeing was very important. Private human sacrifices also took
place. Sacrifices during times of calamities called for a human
sacrifice to appease the Gods 41. Analysts have suggested that
human sacrifice helps to maintain social stratification. The
researchers observed that through several probabilistic models,
exploring how the cultures had changed over time and what role
human sacrifice played in those changes. Human sacrifice, in
other words, is a useful tool for elites who want to maintain their
power in a stratified society.

Violation of the basic Human right of Life in the name of religious

sacrifice

Nothing could be more abhorrent than the idea of slaughtering

human victims in order to glorify Gods. Religions have specific
purposes. The practices of a religion are to accomplish the
objectives of salvation of an individual and others. The Gods
render blessings to worship and obedience to God. Different
religions have different understandings of salvation and God.
Human Sacrifice is an ultimate practice of attaining blessings and
pacifying God. Human sacrifices are usually not carried out with
the consent of the victim. This results in the violation of the human
rights of that victim in the name of religious sacrifice and religion.
Human rights violation includes the violation of the rights to exist,
personal liberty and physical abuse42. The worst forms of
violations of the right to life are massacres, starvation of large
populations, and genocide. Genocide refers to the intentional
extermination of an ethnic, racial, or religious group. Killing such
group members, instigating them physically or mentally,

41 Jan N. Bremmer, (Ed.), The Strange World of Human Sacrifice, (Paris, 2006), p. 207
42 [Link]

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imposing procedures to prevent birth, or compulsorily transfer of

children are part of genocide. Genocide is often regarded as the
most offensive crime against humanity. Human sacrifice is worse
than Genocide. Human sacrifice in the name of religions
transforms things totally in to a traditional and religious practice
thereby having its own religious implications if not fulfilled.

Protection of Human rights in India

India is a country which respects the rights of every individual

citizen and has a Constitutional framework based on rights. The
government of India is a part of the UN Human rights commission
and the Indian Constitution guarantees every citizen legal
remedies. Violations of human rights are subject to criminal
action by the police. The Government of India had taken several
steps to curb the aspects pertaining to human rights violations,
especially the one like human sacrifices. The National Human
Rights Commission and the State Human Rights Commission are
designated with duties of safeguarding the human rights.

Anti-Superstition and Black Magic Act also known as the

Maharashtra Prevention and Eradication of Human Sacrifice and
other Inhuman, Evil and Aghori Practices and Black Magic Act,
2013 is a criminal law act for the state of Maharashtra, India. It was
initially drafted by anti-superstition activist Narendra Dabholkar in
2003. In July 2003, the draft was approved by the state
government. The bill was sent for ratification to the Union
government by Chief Minister Sushilkumar Shinde in August 2003.
The act criminalises practices related to black magic, human
sacrifices, use of magic remedies to cure ailments and other
superstitious acts. Finally it was promulgated on 26th Auguts
201343. Karnataka Prevention of Superstitious Practices Bill, 2013
was passed following the footsteps of Maharashtra is the state of
Karnataka. The draft law titled the Karnataka Prevention of
Superstitious Practices Bill, 2013 has been drafted by the students
of the National Law School, Bangalore. According to the draft bill,

43 Jebagnanam Cyril Kanmony, Human rights violation, (New Delhi, 2010), p. 24

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 DR. MRS. CINTHIA. JUDE

thirteen superstitious practices have been classified as evil

practices. Expressing fear that the proposed anti-superstition Bill
would endanger Hindu traditions and so the State government’s
proposed Bill has been put on hold44.

India is a secular country. It is the responsibility of every individual

to respect the religious beliefs of the other. Violating or insulting
the religious sentiments of an iindividual, community or a religious
group is a crime. Human sacrifice is a religious practice that is
usually performed to please Gods. Though the Government and
the police are vigilant enough to prevent unlawful acts of human
sacrifice, it becomes very difficult to prevent when the Narabali
performances are carried out stealthily in burial grounds at mid
night or in the middle of the forest in the early hours of dawn. Only
when people report of missing persons or when evidences of
body or head are found they form the base of a criminal activity.

The Preamble of the Indian Constitution indicates the word

"secular", indicating that the State will not discriminate, patronize
or meddle in the profession of any religion. It also safeguards
individual religions or groups by adding religious rights as
fundamental rights. Article 25 of the Indian Constitution says “all
persons are equally entitled to freedom of conscience and the
right to freely profess, practice, and propagate religion, subject to
public order, morality and health” 45. Further, Article 26 says that all
denominations can accomplish their own affairs in matters of
religion. All these rights are subject to be regulated by the State 46.
The government has entrusted the Ministry of Minority Affairs, the
National Human Rights Commission (NHRC) and the National
Commission for Minorities (NCM) to reconnoiter religious
discrimination and to make recommendations for redresses to
the local authorities. Though they do not have any executive
power, local and central authorities generally follow them and
monitor the happenings throughout the country. These

44 [Link]
45 [Link]
46 Gerald James Larson, Religion and Personal Law in Secular India: A Call to Judgment, (Indiana

University Press, 2001), pp. 25

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organisations have investigated numerous instances of religious

tension at regular intervals.

Staunch faith in the practice of Narabali

Faith is a strong belief in the doctrines of a religion, based on

spiritual conviction rather than proof. Every individual has faith
and trusts in some supreme power or the other. The individual
believes that in order to pacify or please the Supreme Being it is
essential to carry out rituals and practices. These rituals and
practices stay spiritual unless it doesn’t hurt others verbally or
physically. When the religious sentiments are hurt or when
individuals are hurt, abused and killed like in the case of Narabali,
religion takes a different form. When faith is the base of religious
livelihood, nothing can stop the individual or the community in
ceasing from performing a particular religious practice 47. The
believers of the practice of Narabali, consider it right to carry out
such a barbaric practice in order to attain their requirements
from the Gods and to soothe the Gods. The practice is a result of
the calamity or damage which had recently taken place and is
the only refuge. Rather than calling it a superstition is can be
considered a blind belief. Superstitions can be prevented by
explaining the consequences or the reasons behind it. Whereas
blind faith is something which cannot be rectified. The practice is
still in vogue in many parts of the country in spite of vigilant
policing.

Conclusion

Religion has been developed by humans to have an attachment

or a link with the Supreme Beings. The religious rituals and
practices are means of communication with the Gods. The
religious dialogues get intense when the rituals and practices
transform to become hazardous to the lives of certain devotees
or rather victims. The barbaric practice of Narabali, has been in
practice ever since the stone age. Through the growth of

Michael Hoelzl, ‎,
47 ‎ draWam‎harGThe New Visibility of Religion: Studies in Religion and Culture
Hermeneutics, (New York, 2008), p. 57

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 DR. MRS. CINTHIA. JUDE

civilization, development of science and technology, it is an

astonishing fact that the practice of Narabali has been able to
sustain itself. This clearly proves that no body or nothing can
tamper the faith and belief of the people. This practice has been
able to endure itself in spite of various factors due its implications
that have been experienced by the people. Their experiences
have been transferred from generation to generation. The
practice had survived so far as it is part of a religion. In India
anything in the name of religion is compromising.

REFERENCES

PRIMARY SOURCES

NEWS

1. Pandey, Mahesh "Priest 'makes human sacrifice'", BBC News,

(2003-03-27).

ENCYCLOPEDIAS

2. Hastings, James (Ed.), Encyclopedia of Religion and Ethics,

Vol 9. (Kessenger Publishing, 2003).

SECONDARY SOURCES

BOOKS

3. B. K.; Baruah, Sreenivasa Murthy, H. V. The Hatimura Temple,

(Hindu books universe, 2009).
4. Bremmer, Jan N. (Ed.), The Strange World of Human
Sacrifice, (Belgium, 2007).
5. Campbell, John Human Sacrifices in India, (New Delhi, 1986).
6. Carter, Jeffrey (Ed.), Understanding Religious Sacrifice: A
Reader, (New York. 2003).
7. Flood, Gavin, The Blackwell Companion to Hinduism, (John
Wiley & Sons, 2008).
8. Kanmony, Jebagnanam Cyril, Human rights violation, (New
Delhi, 2010).

69
EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

9. Larson, Gerald James, Religion and Personal Law in Secular

India: A Call to Judgment, (Indiana University Press, 2001).
10. Lipner, Julius, Hindus: their religious beliefs and practices,
(New York, 1994).
11. Rājendralāla Mitra (Raja), On Human Sacrifices in Ancient
India, (Bengal, 1876).
12. Tiesler, Vera, Andrea Cucina, (Ed.), New Perspectives on
Human Sacrifice and Ritual Body Treatments in Ancient
Maya Society.
13. Hoelzl, Michael, ‎ ReyegGleR fG yaGlabGsaVawaWaehGh,GraWamaharG
labGohRwfGGfsei aaVGaaGraWamahaGea G iWeiRaGRaRgaaaieatV
.2008
WEB SOURCES

1. [Link]
2. [Link]
rights/violations-of-human-rights/
3. [Link]
4. [Link]
5. [Link]
times/deep-focus/A-bloody-scam-that-shook-Tamil-
Nadu/articleshow/[Link]
6. [Link]
nara-bali-in-india-post-no-3244/

70
 TRADITIONAL WATER
HARVERSTING TECHNIQUES,
ENVIRONMENT AND PUBLIC
HEALTH: A HUMAN RIGHTS
PERSPECTIVE

Dr. Shan Eugene Palakkal*

* Assistant Professor, Department of History, Stella Maris College.

(Autonomous), Chennai – 86

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

ABSTRACT

Water plays a vital role in sustaining all forms of life;

producing food to meet the basic needs for human sustenance
and well being; and in maintaining a healthy eco-system. It is a
renewable but limited natural resource. Local level issues – be it
agriculture, health, sanitation are associated with water security
which has been put to risk by climatic fluctuations and dry spells
causing droughts and famines world wide and in India as well. In
the current awareness towards climate change adaptation to
manage the challenges climate change is precipitating on
human systems and well-being, traditional water harvesting
systems offer a great potential as viable and local feasible
options. India has a history of traditional mechanisms and
structures of water harvesting across the length and breadth of
the country.

Ecologically safe engineering marvels of water

conservation have existed in India for nearly 1500 years, including
traditional systems of water harvesting, such as Bawari, Jhalara,
Nadi, Taanka, Khadin, Talab, Baoli, Ahar Pynes (Bihar), Johads
(Odisha), Panam Keni (Kerala), Bhandara Phad and Ramtek
(Maharashtra), Zing (Ladakh), Kuhls (Himachal Pradesh), Zabo
(Nagaland), Jackwells (Nicobar Islands), Pat system (Madhya
Pradesh) and Eris (Tamil Nadu). Even today these systems remain
viable and cost-effective, alternatives to rejuvenate depleted
groundwater aquifers. These structures could be upgraded and
productively combined with modern rainwater-saving techniques
such as anicuts, percolation tanks, injection wells and subsurface
barriers. Several thousand stepwells in varying degrees of
grandeur had been built throughout India, where they came to be
known as ‘retreat wells’ because the travelers and pilgrims could
park their animals and take shelter in covered arcades around
these wells.

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 DR. SHAN EUGENE PALAKKAL

What makes this subject compelling today is, its relevance

to the present day water management and the growing
awareness about ‘sustainable architecture’.

In Tamil Nadu, the glorious Chola dynasty has not only left
behind a heritage of temples and sculptures, but also contributed
to temple traditions and practices and built irrigation tanks that
exist even after 1000 years. They commissioned the digging of
many irrigation tanks - one of the major sources of drinking water
for Chennai.

Throughout history, many water conservation and

management strategies have been employed, but only a few
have proved successful. Stepwells were one such effective water
management technologies used in India. They form a unique,
efficient system of hydraulic engineering that demonstrates the
region’s traditional understanding of the sustainable use and
management of its land, water, and agricultural biodiversity.

Ancient water harvesting techniques integrated stepwells

into agricultural and irrigation networks using prefabricated
structures, to allow open channel flow, networked with surface
water bodies. They not only communicated and guided
communities regarding water management and cleaner
production, but also revealed historic knowledge regarding how
ancient societies achieved social-ecological resilience. In
addition to that, in almost all types of stepwells, aesthetics and
ornamentation played an important role and served as a rich
source of history to disseminate knowledge of governance,
political ideas, social practices and lifestyle.

This article will explore the scientific, architectural, artistic, and

functional dimensions of all major stepwells in India that have
either disappeared or lost their relevance owing to expanding
human population and environmental stress. Additionally, this will
provide an opportunity to rethink modern water engineering
systems and redesign water infrastructure with less negative

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

environmental impacts to achieve the Sustainable Development

Goals and ensure water for all.

Harvesting History

Water plays a vital role in sustaining all forms of life;

producing food to meet the basic needs for human sustenance
and well being; and in maintaining a healthy eco-system. It is a
renewable but limited natural resource. Local level issues – be it
agriculture, health, sanitation are associated with water security
which has been put to risk by climatic fluctuations and dry spells
causing droughts and famines world wide and in India as well. In
the current awareness towards climate change adaptation to
manage the challenges climate change is precipitating on
human systems and well-being, traditional water harvesting
systems offer a great potential as viable and local feasible
options. India has a history of traditional mechanisms and
structures of water harvesting across the length and breadth of
the country.

Ecologically safe engineering marvels of water

conservation have existed in India for nearly 1500 years, including
traditional systems of water harvesting, such as Bawari, Jhalara,
Nadi, Taanka, Khadin, Talab, Baoli, Ahar Pynes (Bihar), Johads
(Odisha), Panam Keni (Kerala), Bhandara Phad and Ramtek
(Maharashtra), Zing (Ladakh), Kuhls (Himachal Pradesh), Zabo
(Nagaland), Jackwells (Nicobar Islands), Pat system (Madhya
Pradesh) and Eris (Tamil Nadu)48. Even today these systems
remain viable and cost-effective, alternatives to rejuvenate
depleted groundwater aquifers. These structures could be
upgraded and productively combined with modern rainwater-
saving techniques such as anicuts, percolation tanks, injection
wells and subsurface barriers. Several thousand stepwells in
varying degrees of grandeur had been built throughout India,
where they came to be known as ‘retreat wells’ because the
travelers and pilgrims could park their animals and take shelter in

48 These water conservation methods were found to be prevalent in Rajasthan. The Hindu, 9 April 2017,
p.4

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 DR. SHAN EUGENE PALAKKAL

covered arcades around these wells. These water harvesting

systems were based on traditional models, which were refined
over centuries to adapt to the prevailing climatic conditions in the
area of use49.

History states that traditional water management systems

have met the basic and irrigational needs of the people. They
have also evolved as specific responses to ecology and human
culture. Not only have they stood the test of time, but also have
satisfied the local needs. However, from the colonial period and
especially post-independence period, these traditional systems
have been abandoned and neglected in favour of large dams
and irrigation projects.

Disappearing Traditional Water Harvesting systems and

Deprivation of Human rights

The main causes of disappearance if these traditional water

conservations structures50 are :

1. Urbanisation
2. Population
3. Public encroachments
4. Poor sewage structures
5. Blocking of the recharging pathways
6. Poor maintenance and negligence from civic authorities

The United Nations Water Development Report of 2018 recollects

the traditional nature-based solution to address water crisis,
averting human rights violations. One was the experiment by
India’s waterman Rajendra Singh, who restored water resources in
Rajasthan, through the construction of small-scale water
harvesting structures. This had brough back water to many
drought-hit areas, revived dry rivers, increased farm productivity
and forest cover. Encroachment of waterbodies have been

49 Aggarwal, Anil and Narain, Sunita, (2001), Dying Wisdom : Rise, Fall and the Potential of India’s
Traditional Water Harvesting Systems, New Delhi : Centre for Science and Environment, pp.35-39
50 S. Annamalai, Kudimaramathu : A much needed revival or watered down revamp ?’ The Hindu, 9 April

2017, p.2

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

identified as a ‘major causes’ of flash floods in Mumbai (2005),

Uttarakhand (2013), Jammu and Kashmir (2014) and Chennai
(2015). The revival of traditional water systems and proper
management including Niti Aayog’s warning are to be taken
seriously, or else groundwater level will go dry affecting many
people, depriving of their rights.

With the changing climatic conditions, the Indian government has

finally started looking at means to revive these traditional water
harvesting – moreover these methods are simple and eco-
friendly, highly effective for the local community who rely on them
and is also good for the environment.

Human Rights to Water

On the 8th of October 2021, the UN Human Rights Council

adopted Resolution 48/13, recognizing that having a safe, clean,
healthy and sustainable environment is indeed a human right51.
We human beings have become the principal driver of
environmental change. Our actions have impacted the global
environment, which in turn has impacted spatial and temporal
distribution of precipitation that falls on watersheds and the
timing of its runoff. Changes in landscapes, due to the growth in
food and energy production and from the movement of people
from rural areas, all of us are altering the quality and quantity of
freshwater resources. In the past, we have made decisions
regarding the management of our water resources that have not
helped us become more secure or sustainable. We have
disrupted and overallocated river flow regimes, overdrawn
groundwater aquifers, polluted some water bodies and degraded
ecosystems.

The protection of human rights and the promotion of a

healthy environment go hand-in-hand and are mutually
reinforcing. Human rights standards and principles also have the
potential of informing and strengthening policymaking in the area
of climate change, promoting sustainable outcomes placing

51 [Link]

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 DR. SHAN EUGENE PALAKKAL

issues of availability, accessibility, quality, non-discrimination at

the forefront of all mitigation and adaptation efforts 52. Applying
the principle of non-discrimination in measures to address
climate change requires specific attention to the groups who are
normally the most affected, yet neglected. Women and young
girls face specific obstacles to the enjoyment of their rights to
water and sanitation and bear the brunt of increasing water
scarcity and poverty. They are the ones who often sacrifice their
time to fetch water, and in some places women are responsible
for the provision of food and water in their houses. The lack of
access to sanitation is a major obstacle to human development
by causing contamination of drinking water on a large scale,
forcing children to drop out of schools, missing work, staying
away from public places without proper sanitation to live a life of
dignity53. Climate change can worsen this situation if the
gendered impact of the lack of water and sanitation are not taken
into consideration.

More than our human-made systems, our planet’s natural

resources are the foundation for these stakeholders to fulfil their
roles, and for communities and households to self-supply
wherever drinking water and sanitation services are inadequate.
Without the hydrological cycle, healthy freshwater ecosystems
and a proper understanding of water in the respective landscape,
access to water supplies cannot be secured in the long run. This
can in turn can threaten many living species on Earth, including
human beings.

In conclusion, the traditional water management systems

are a more agreeable option as they promote social cohesion by
compelling the members of a community to come together to
construct and maintain these systems. They also incite social
harmony due to its equitable nature and is economically viable
as a tourist or religiously relevant space. In terms of sustainability,
they last longer, and are simple to build and use. Thus these

52 Jayant Sriram, ‘Lessons from ancient India’, The Hindu, 8 May 2016, p.11
53 Jayant Sriram, ‘Lessons from ancient India’, The Hindu, 8 May 2016, p.11

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existing systems should be maintained, some systems should be

revitalized and the regions with no such systems should adapt
them to tackle the water scarcity issues, reduce water stress and
achieve long term sustainability.

The Last Drop : Conservation and Response Systems

The water management scheme was launched with the

aim of rejuvenating the state’s crumbling water bodies and water
foundations of architectural beauty. Kudimaramathu is an
ancient Tamil concept of participatory water management. The
term is derived from two words – Kudi (people) and Maramathu
(repair)54. The entire village get together to perform repair and
maintenance work to keep all the physical structures intact. A
neerkatti, a dedicated person kept a close watch on the water
level and was in charge of channeling this water to the individual
fields55. After the Madras Water Board Act of 1930 and
subsequently the Grow More Food campaign of 1946 during the
British period, this ancient system fell by the wayside.

The concept of water harvesting is a critical topic and

stepwells were very efficient but the visual magnificence and
individuality of each structure is what stays in everyone’s mind.
Stepwells can be revived. Silt and trash clogging the wall-shaft of
unused stepwells can bring it back to life.

Stepwells are often seen as archaic structures that are not

factored into modern town planning. But an upscale housing
colony called Umaid Heritage in Jodhpur, Rajasthan, is
experimenting to change that by creating a modern
interpretation of a stepwell . This model can be emulated in other
56

parts of the country. It is a 900-foot long structure with endless

panels of interlocking beams and pillars and can hold up to 17.5
million liters of water. All that is needed is a natural slop to build a

54 S. Annamalai, Kudimaramathu : A much needed revival or watered down revamp ?’ The Hindu, 9
April 2017, p.2
55 Suresh Krishnamoorthy, ‘A Standing example of Conservation architecture’, The Hindu, 20 January

2016, p.8
56 Jayant Sriram, ‘Lessons from ancient India’, The Hindu, 8 May 2016, p.11

78
 DR. SHAN EUGENE PALAKKAL

stepwell. But even in their state of ruin, these architectural

wonders can hold lessons for modern day architects and town
planners – to innovate and build in harmony with water rather
than in defiance of nature57. Adaptive reuse as a solution can be :
(1) Adaptive reuse helps in preserving architectural and cultural
heritage, which also serves educational purpose of displaying
techniques and lifestyles of bygone days (2) Adaptive reuse also
helps in providing job opportunities to the local craftsmen and
laborers. Since most of the building is already built, the work
needed to fit new function requires less money, making them
economical (3) These old building are also environmentally
beneficial, as they are designed to include natural light and
ventilation, thus conserving energy.

We have monuments and culture that are alive and

vibrant but we need to get the younger generation to understand
and respect what we have and preserve what our ancestors have
given us. Modern day building projects don’t seem to think twice
about filling up lakes and water bodies to reclaim land at great
cost to the environment.

These places have become tourism and cultural places of

interest, whilst the growing urgency for water conservation has
led to a new appreciation of these ancient systems of water
storage.

From the Environmental history of India, it is evident that a

wide range of water harvesting structures, suitable geographic
conditions existed in the country, and are still prevalent even
today. The National Water Policy of 2002 (the last revision took
place in 2012) had envisaged the rejuvenation of traditional water
encouraging practices like roof-top rainwater harvesting, to
further increase the utilizable water resources. But modern
harvesting and irrigation systems have ruined these in many
parts of the country. It is evident that wherever these structures
were maintained, people have overcome the fury of drought and

57 Suzanne McNeill, ‘Of Stone and Water’, Culturama, February 2016, p. 29

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water scarcity. Now that the importance of these structures have

been recognized and efforts are made to revive them along with
the introduction of new technologies, there is a need to carry out
detailed research and documentation of these practices and
linking them with the drought mitigation projects.

It is necessary to understand the reason of declining

practices and concern on these noble systems and workout
socio-economic strategies along with a policy environment at
national, state and local levels. The Government of India is
working on two strategic interventions – water framework law and
river basin authority act and in the light of the new water policy –
the linkages to land and ecosystem for the sustenance of
people’s livelihood and health in the time of natural calamities.

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 HUMAN RIGHTS IN RELATION TO
ENVIRONMENT: PULICAT LAKE – A
TOURISM PERSPECTIVE

DR. P. SENKATHIR SELVI,

* M.A., [Link]., PH.D.,ASSISTANT PROFESSOR, DEPARTMENT OF

HISTORY, STELLA MARIS COLLEGE (AUTONOMOUS), GOPALAPURAM,
CHENNAI – 600086.

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 EDITED BOOK ON HUMAN RIGHTS & STATE OBLIGATIONS

ABSTRACT

Pulicat on the borders of Tamil Nadu and Andhra Pradesh,

consists of an assortment of flora and fauna and is a prospective
tourism destination in South India. It is the second largest
brackish-water lake or lagoon in India which was also a natural
harbour that includes a Dutch fort, Dutch cemetery, temples,
churches, mosques and the famous Pulicat lake bird sanctuary.
Due to the tourism activities in this destination, exploitation of the
environment is a major negative impact of tourism at Pulicat.
However, it is a place of international importance which has
witnessed the rule of the South Indian rulers as well as the
European rulers, but still, even during the present times, it does not
have a proper waste management system. Being a spot with
historical riches with affluent biodiversity, Pulicat has all the ability
to be positioned as one of the significant and prominent tourism
places of South India but it must have a properly maintained
environment both for the tourists and the local population. This
research paper will focus on how human rights in relation to
environment is exploited at Pulicat in the perspective of tourism
and some suggestions to improve its condition in the future.

KEYWORDS: Conservation, Environment, Human Rights, Pulicat,

Sustainability

INTRODUCTION:

Our knowledge about the historical context of older wetlands is

derived from maps and records that have outlasted the ages.
Wetlands were seen by humankind for many years as areas that
needed to be emptied and transformed for agriculture. Wetlands
are currently among the most endangered ecosystems on the
planet. To maintain bio - diversity, ecology, and hydrology in eco -
systems as well as for leisure activities, bodies of water like lakes
and wetlands are important. They support the life cycles of
several organisms and serve as an ecosystem for a vast range of
plants and animals. Due to unsustainable use and poor
management, a lot of the world's waterbodies have degraded,

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 DR. P. SENKATHIR SELVI

harming ecosystems as well as the way of life and culture of the

people who live nearby. Constantly increasing wetland runoff
have been accommodated by channelization, which has resulted
in habitat loss, rising percentages of aquatic life facing extinction
or even being put in danger, and affecting many of the water's
useful purposes, such as drinking, boating, and fishing. In fact, the
depletion and shortage of freshwater have major negative effects
on humans as well as many other forms of life.

In this research paper, human rights related to environment at

Pulicat in the perspective of tourism is being discussed.
Pazhaverkadu otherwise called as Pulicat is a historical town
located in Tiruvallur district of Tamil Nadu. It has rich reminiscence
of social, political and maritime history. Pulicat lake also known as
Pazhaverkadu eri is the second largest brackish-water lake or
lagoon in India and also one of the largest fishing centres in Tamil
Nadu. Pulicat became an important centre for its early rulers and
the colonial powers due to its role as a seaport in one of the few
natural harbours in the Coromandel coast of India that is located
right at the mouth of the Pulicat lake.

PURPOSE:

The purpose of this research paper is to study the

environmental degradation of Pulicat due to tourism activities.
The major findings of this paper are to study the tourism
significance of Pulicat lake, to provide a better understanding
about the environment of Pulicat, to trace out the threats caused
to its environment due to the promotion Pulicat as a tourism
destination, and some suggestions to improve the environmental
condition of the region in view to protect the human right to a
clean, healthy and sustainable environment of the people
residing and also the tourists visiting Pulicat.

SOURCES FOR THE STUDY:

The methodology adopted in this article is analytical and

descriptive. Regarding the sources, the work relies primarily on
secondary data. The sources such as scholarly research articles,

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printed books, e-books, journals and newspapers were referred to

carry out this study.

NATURAL THREATS

1. Climate Change

The specific effects of climate change create a lasting negative

effect on biodiversity. Over the last three decades, such adverse
effects have been often reported. These had also exposed in the
forms of droughts, cyclonic storms, and floods. Also, the water in
the whole Pulicat lake was extremely warm with
temperature around 30°C and salinity level were alarmingly high
i.e., about 70–80%. For example, the cyclone in Sriharikota, which
concentrated on the northern region, caused severe alterations to
the Pulicat lake's ecosystem. Natural disasters caused by wildfire,
storms, and cyclones are gravely harming the lake's vegetation. A
German based Non-Governmental Organization (NGO), that
works for environmental and natural resource protection, has
labeled the Pulicat lake as “Threatened Lake of the Year 2010”. In
addition to providing a buffer against the effects of climate
change, phytodiversity that provides the basis for adaptation is
very important. A robust ecosystem requires a rich phytodiversity
since plant species are the primary carbon dioxide sources.

2. Pulicat Estuary

The lake-mouth, also called as an estuary, is so important to

Pulicat lake's hydrology, bio-diversity, and fishery supplies. But it
seems to become thinner and shallower from the months
of January to September, primarily because of sand build up that
shapes a sand-bar all across the estuary. Since less sea water
enters the lake and as a result low and high ocean waves
becomes weak and also the lake's depth tends to decrease. The
ecosystem and aquaculture in this lake are both significantly
impacted by it as well. And also, if the sand-bar closes up the
estuary completely, the water already in the lake gets bounded
and trapped that will evaporate and reach hypersaline levels.

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 DR. P. SENKATHIR SELVI

3. Siltation and Shrinkage

The high pace of sedimentation is yet another serious ecological

concern that Pulicat lake is now dealing with. Flood water from all
the possible rivers rushes into the lake during the Northeast
monsoon in the months of October to December, eroding the
topsoil and depositing it there. Tons of sand are also dumped into
the lake by the tributaries and the Buckingham Canal. The Dutch
had a natural seaport on the Pulicat lake, which has been shrunk
to a length of less than a metre. At a pace of around one metre
per one hundred years, the Pulicat lake is rapidly silting up. Before
the 1600s, the lake had an average depth of roughly 3.8 metres.
Compared to historical records, the current extent of the Pulicat
lake is just 281 km2, whereas the lake's overall water expansion
was approximately 481 km2 in the year 1700 A.D. It demonstrates
that during a period of 300 years, the lake's area had shrunk by
200 km2.

During the monsoon, silt is deposited in some lake areas to a

depth of one foot. Every rainy season as a consequence of those
significant deposition, which further severely obstructs movement
for boating, fishing and burying the benthic zone ecosystems,
vegetation, and wildlife, a massive scale or mass mortality of the
lake's ecosystem occurs. The environment of this lake is seriously
affected. For example, the natural food chains, the reproductive
capacity of the lake's inhabitants, and stock replenishment, which
ultimately results in a significant decline of the lake's richness and
fisheries. The depth level and water distribution of the Pulicat lake
both are decreasing at the same time. The fish population in the
lake that prefers deeper waters is dwindling fast. In just another
hundred years, Pulicat lake may disappear completely as a result
of siltation.

4. Tidal Dynamics

Flocks of birds, river flows, and ocean tides, all carry

sedimentation into the lagoon. Sediments include materials like
shells, bird droppings, and peat, as well as arid-region

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materials like calcite, dolomite, and chemically formed salts.

Coastal geomorphology and man-made structures such as
breakwater averting coastal processes greatly affect the tidal
inflow of Pulicat lake.

During the years 1999 to 2001, the tidal inlet at the estuary’s
southern side was around 40 metres. Since April 2001, this tidal
inlet has been closed due to previous years' monsoon failure, the
slow and gradual build-up of deposits on the estuary, the Pulicat
lake system's decreased inflow of freshwater resources, and the
weak tidal currents that are not strong and powerful enough to
keep sand away from the estuary. Due to increasing runoff after
the month of November, the mouth opens and it moves quickly
towards north. Geographic Information Systems (GIS), Global
positioning System (GPS), and remote sensing techniques are
used to monitor long-term changes in the tidal inflow dynamics.
During the year 2000, there were three inlets in the estuary. A
study in the year 2001 shows that the fishing community faced
inconvenience due to the closing of inlet channel. In April 2002,
the site had only one inlet, which was opened in November 2001.
This evidently shows the dynamics of tidal inflow and its effects.

MAN-MADE THREATS

Lakes and lagoons are motionless stagnant type of water body

which means, any pollution in that will not move off and flow
away but it will continue to accumulate in the very same place.
Therefore, pollution in such water bodies is much more
prominent and deadly than river and streams, that flows and
oceans which are much too larger in size. Pulicat lake that has a
bird Sanctuary straddles between two states, Tamil Nadu and
Andhra Pradesh.

1. Aqua Farms

Prawn and crab farms set up by the Private entrepreneurs, along

the margins of the Pulicat lake, also adds to the draining of the
lake water, right round the year. More than this, these aqua farms,

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 DR. P. SENKATHIR SELVI

unfortunately discharge untreated effluent waters from the

culture ponds, back into the lake, degrading the quality of water
and substratum in the lake, and changing the bottom of the
biodiversity, swimming organisms, including fishes and prawns.
Such polluted effluents may even add in toxic pollutants and
pathogens into the food-chains, biodiversity and also into the sea
foods like prawns, crabs and fish which are locally consumed and
exported. During summer, the hypersaline waters in the northern
regions of the Pulicat lake are harnessed to extract manufacture
salt, which also contributes to the depletion of lake water as well
as to salivation of soils.

2. Developmental Projects

The Pulicat lake region in Tamil Nadu faces a greater threats

such as the developmental projects in and around Pulicat region
will slowly harm the ecosystem of the Pulicat lake ecosystem that
extends across 40 km from Ennore to Pulicat.

i) North Central Thermal Power Station (NCTPS)

44 lakh litres of fresh water from the Ennore creek is used by

North Central Thermal Power Station (NCTPS) and it lets out hot
coolant water in to the Buckingham canal and the toxic fly ash in
the form of slurry is discharged into the lagoon. This has been
resulted in increase of temperature about 5°C at the outlets.
Despite precipitators and chemical filters, the fly ash is made of
toxic elements such as Arsenic, Cadmium, Mercury, Lead,
Manganese, Florene and Beryllium. In Athipattu village, 10 km
away from North Central Thermal Power Station (NCTPS) the
concentration of salt pans has forced the people to quit their
occupation. Fly ash is especially dangerous as it can be breathed
in and results in permanent respiratory disorder, dermatitis,
asthma, bronchitis and cancer. The particles of silica in fly ash
could also induce silicosis which is very harmful.

ii) Construction of Ennore Port

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The Ennore port was constructed in back waters which caused

the sea to enter 50m into the main land that separates the Pulicat
lagoon system and the sea. This has stimulated terrible water
erosion at Koraikuppam and at eight other fishing villages next to
Ennore area.

iii) Tamil Nadu Industrial Development Corporation (TIDCO)

Pulicat form an island with sea to its east and lagoon to its west.
The Tamil Nadu Industrial Development Corporation (TIDCO) is
taking 2900 ha for the proposed amount of Rs. 600 million petro
chemical industrial complexes which may demand 45 million
litres of water per day and quantity that would severely exhaust
coastal aquifers. Corrupt pattern of fishing with padivalai has
badly spoiled the aquatic assets. Edible oysters which were found
in the lagoon are gone astray now because of intense siltation.
This also leads to swift reduction of water stretch of the Pulicat
lake.

iv) Satellite Launching Station at Sriharikota

There was also mangrove pollen on Sriharikota Island reminding

their presence few years earlier. The loss of these mangroves may
be one among the various reasons that hastens siltation thereby
decreasing its biodiversity and ultimately stripping fishermen of
their livelihood. It also faces several industrial, anthropogenic,
environmental and developmental issues frightening not only the
livelihoods of fishermen and also the very survival of this fertile
lake itself.

3. Lime shell mining:

Shorebirds The important threats that the shorebirds are lime
shell mining, shorebird trapping and pesticide pollution. This
action is mostly limited to the southern part and to a little extent
in the northern side of the Pulicat lake such as Panangadu,
Sunnambukkulam, Annamalaicherry and Irrakkam and in the
northern part Toguramudi, Minjur and Valakadu. The second main
hazard for the shorebirds discovered in the lake is lime shell

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mining. The Pulicat lake has very rich sources that attract people
from the southern side who frequents the lake for mining. A long
iron bar is used to find the depth of the lime shell deposits. If the
deposits are found at low distance downward, then the miners
begin digging the soil like mounds all over the place along the
mining areas.

In turn, this activity affects the shorebird habitats making them

unfit for feeding. The crop fields on the Pulicat lake are at the start
of paddy cultivation and the farmers use chemical herbicide to
prevent the growth of unwanted grass and inorganic fertilizers to
increase the growth of the crop. This will have possible effects on
the birds wintering in Pulicat lake which naturally coincides with
the cultivation. Due to flooding in the lake many birds that are
seen using these crop field species are Galinagogalinago,
Limosalimosa, Tringaerythropus, Tringaglareola and
Actitishypoleucos. They largely depend on these crop fields for
feeding during winter season, however, no dead birds seen in the
crop fields but possible chemical weed killer contamination is
possible in the shorebirds.

4. Other Man-made Threats

Pollution from pesticides, sewage, oil spills from mechanized

boats and industrial wastes from various fish processing units
that operates through Kalangi and Arani rivers draining into the
Pulicat lake are the major environmental threats. In addition to
negatively affecting the bird sanctuary and the income of the
fishers and farm labourers who inhabit in Pulicat, marine
chemicals, salt producing industries, and shrimp farming on the
eastern half of the lagoon also poses a major negative impact.
The Pulicat lake's aquaculture operations is severely impacted by
it. All these are the biggest ecological threats to the Pulicat Lake
region, which causes fluctuations in the normal range of water
salinity and the water level of the Pulicat Lake. Also, the biotic part
of the Pulicat region's ecosystem is significantly affected.

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IDEAS AND SUGGESTIONS

1. Water management is more important for the survival of

human beings. So, for the Pulicat lake is concerned, management
of the estuary is critical for the health and prosperity of the eco-
system. The factors or reasons for the collapse of the water
management in the Pulicat lake are due to poor hygiene, scarcity
of drinking water, pollutants from agriculture, aqua farms and
industries.

2. Biodiversity stability and maintenance is the

instantaneous requirement of the Pulicat lake in order to control
the balance of nature and support the available natural
resources for future generations. Biodiversity assessment of
Pulicat region is essential to prepare suitable protection
strategies. Priority should be given to in-situ conservation by
protecting the natural habitats. The Non-Governmental
Organizations (NGOs) should create awareness among the
people of Pulicat about the factors responsible for the collapse of
the tradition in Pulicat lake.

3. Prevention of drastic siltation: Many of the shorebirds

migrate from moderate countries to tropical countries to take
advantage of favourable conditions. The Pulicat lake seems to
have incessant and drastic siltation that makes the shallow areas
into sand-flats which can be considered as a grave hazard to the
ecosystem. The State Government can appoint professional
Environmentalist or Geologist to protect the lake from these risk
factors.

4. Eco-Sensitive Zone (ESZ) in and around Pulicat Bird

Sanctuary indicates that there should be no reduction of any kind
extended to make any ecologically harmful action like thermal
power plants, hazardous industries, airports or seaports in the 10
km circumference of Pulicat region. Other alternatives for these
man-made structures in non-ecologically sensitive areas should
be discovered in near future for further development.

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5. Awareness Campaigns: There should be possibilities for

extending support to the fishermen’s campaign by conducting
and funding an independent environmental impact assessment
study.

6. Support of Non-Governmental Organisation (NGO)’s like

World Wide Fund (WWF) will need to modify their project
objectives to include proper scientific investigation of the
ecological impact of the port and funding for legal intervention to
demand the right to information for the affected people. This
organisation also aims to work for the conservation of threatened
ecosystems and should realize that it is vital to understand the
symbiotic relationship between the fishing communities and the
lake ecosystem.

7. Authority of Coastal Aquaculture must lay down strict

guidelines to ensure that aquaculture farms release wastewater
into the lagoon only after proper treatment to save the lagoon’s
natural ecology from further degradation. Reclamation and
infrastructure expansion both public and private should be strictly
prohibited.

8. Institution of Pulicat Lake Development Authority: To

assure that there is no human intervention in the Pulicat lake’s
ecosystem, the government should consider the creation of
Pulicat Lake Development Authority to keep the lake in shape.

9. Pulicat Lake Bird Lovers Society (PLBLS): The state and

central governments have taken a lot of action to protect the
Pulicat lake's biodiversity. The Pulicat Lake Bird Lovers Society
(PLBLS) was founded in Sullurpetta, in the Nellore District, with an
intense focus on raising public awareness and safeguarding the
Pulicat lake's biodiversity.

10. Restoration of Native Vegetation: To support soil binding

and formation of sand-bars, mangrove patches must be grown
across the north and north-west borders of the Pulicat brackish
waters. To stop the alteration of native ecosystems, it is necessary
to eradicate organisms that seem to be alien to mangrove

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settings. To attract migrating birds, a lot of plants like Barringtonia

acutangula, which act as nesting trees and provide for the
nutritional and reproductive needs of the birds, must be planted
and grown.

To be noted, Chennai city’s water resources are inseparably

linked to the Pulicat’s well-being. The brackish water body’s
welfare is essential in keeping seawater intrusion at bay and
sustaining underground aquifer systems.

CONCLUSION

All the above, several other issues on the Pulicat lake are rapidly
increasing both the habitat as well as species destruction in the
lake, so that biodiversity in the Pulicat lake has been decreasing
rapidly, almost to a point of vanishing. Under these formidable
ecological and human threats faced by the Pulicat lake
ecosystem, unless the local fishermen are concerned about these
crises faced by the lake, and unless they are mobilized by their
Non-Governmental Organizations (NGOs), to restore and
conserve the habitats and biodiversity, in the lake, assisted by
research scientists and students, we may totally lose the rich and
rare biodiversity of the Pulicat lake, for our future generations.

To address these problems, which are accelerating the

destruction of this unique ecosystem, the respective State
governments must establish a development authority. Such a
body can help develop an integrated management initiative for
the entire lake ecosystem, with the support of the governments of
Andhra Pradesh and Tamil Nadu. Key aspects of the process
should include a community-based planning and management
scheme (e.g., active participation of stakeholders and resource
users), an integrated approach (that involves the entire
ecosystem and not only the protected area), a zoning
programme for land-use planning, clear conservation objectives,
identification and mitigation of key impacts and, finally, a solid
technical base for the project’s implementation and monitoring.

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Inspite of all the above-mentioned drawbacks; the importance of

Pulicat has to be brought to the people through the possible
ways. The following measures by the state government,
individuals and some NGOs can be considered to conserve the
environment in and around Pulicat and the Pulicat lake: prevent
ourselves and others from scribbling on the walls of the historical
monuments like Dutch cemetery, cleaning the exterior and interior
of the building and general landscaping, being a part of the
‘Adopt a Heritage’ initiative, spreading awareness around about
these monuments and their importance, nominate historical
buildings for landmark destination, create a website and maintain
a discussion board, host tours and special events, create a self-
guided driving tour accompanied by a booklet that visitors and
residents can continue to use, special exhibits that feature the
architecture of the Pulicat region, lecture series that features local
historians, architects, or professors to talk about the historical
importance of the place, workshops, seminars and conferences
on the topic of Pulicat can be conducted to educate specific
audiences about the Pulicat region and the Pulicat lake, frequent
research about the monuments to carry out repairs if necessary
will help to maintain the monument's historical integrity, the
knowledge about this region and its specialities should be made
recognizable to the public with the help of media, through
advertisements and programmes, inclusion of lessons in detail
about Pulicat in academic books can help in this regard, the
heritage edifices in Pulicat region have to be restored and
preserved.

REFERENCES:

1. Pardeep Singh, Sadaf Nazneen, and Sughosh Madhav,

Coastal Ecosystems: Environmental Importance, Current
Challenges and Conservation Measures, (Switzerland, 2022), p. 110
2. Frontline, The importance of protecting Pulicat Lake dated
25 December 2021
3. Deccan Chronicle, Stage set for rejuvenating Pulicat lake
dated 23 November 2022

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4. Aruna Venkat, Environmental Law and Policy, (New Delhi,

2011), p. 211
5. Deccan Herald, Pulicat lake gasps for survival dated 15
December 2013
6. Deccan Herald, Residents of Pulicat protest port project
with sea food dated 29 January 2020
7. The New Indian Express, Kattupalli port expansion to
damage Ennore-Pulicat ecosystem, says Jairam Ramesh in Rajya
Sabha dated 16 July 2019
8. A.V. Shibu, B. Madhusoodana Kurup, M. Harikrishnan, M.R.
Boopendranath, Impact of Climate Change on Hydrological
Cycle, Ecosystem, Fisheries and Food Security, (England, 2022), p.
554
9. The New Indian Express, Chennai-based Palluyir Trust
creates diverse nature-education resources dated 4 April 2022
10. Pardeep Singh, Sanjeev Sharma, Wetlands Conservation:
Current Challenges and Future Strategies, (United Kingdom, 2021),
pp. 124-125
11. The New Indian Express, Chocking Pulicat Lake: Not so very
‘wall’ planned dated 28 October 2018
12. R. Ramesh, P. Nammalwar and V.S. Gowri, Database on
Coastal Information of Tamilnadu, (Chennai, 2008), pp. 5-6
13. The New Indian Express, Real estate sharks eye Pulicat
dated 28 July 2017
14. Ranjan Chakrabarti, Critical Themes in Environmental
History of India, (New Delhi, 2020), p. 139
15. Asad Rafi Rahmani and M. Zafar-Ul Islam, Important bird
Areas in India: Priority Sites for Conservation, (Bombay, 2004), p.
158
16. The News Minute, Fisherwomen from a Tamil Nadu town
use food to fight Adani’s port expansion dated 24 January 2020
17. S.K.M. Basha, E. Rajya Lakshmi, B. Ratneswara Rao, C.V.N.
Murthy and N. Savithramma, Biodiversity and Conservation of
Pulicat Lake-Andhra Pradesh, International Journal of Geology,
Earth and Environmental Sciences, Vol. 2 (2), May-August, p. 133

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18. The New Indian Express, Restore the mangroves to

continue living in Chennai and save it from nature’s wrath, says
environmental activist Xavier Benedict dated 26 July 2021
19. K Kumaraswamy, Mu. Ramkumar, R. Mohanraj,
Environmental Management of River Basin Ecosystems,
(Germany, 2015), p. 402
20. The New Indian Express, Declare Kattupalli coast 'high
erosion zone' to protect our livelihoods, demand TN fishermen
dated 9 July 2021
21. G. Victor Rajamanickam and M.J. Tooley, Quaternary Sea-
Level Variation, Shoreline Displacement, and Coastal
Environment, (New Delhi, 2001), p. xxi.
22. The New Indian Express, Kattupalli Port expansion:
‘Envisaged’ sea reclamation of 440 hectares threat to Pulicat
Lake in Chennai? dated 11 July 2018
23. G.K. Ghosh, Water of India: Quality and Quantity, (New
Delhi, 2002), p. 73
24. The New Indian Express, In a surprise move, TN proposes
‘zero’ buffer zone around Pulicat bird sanctuary dated 18 August
2019
25. Deccan Chronicle, Tamil Nadu has not even Desilted
Pulicat Lake dated 22 January 2018

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ROLE OF NGOs IN THE PROMOTION
& PROTECTION OF HUMAN RIGHTS

Irshad Khan* and Pradnyanand

Jondhale**

*Assistant Professor, Department of Anthropology, Shavitribai

Phule Pune University, Pune Maharashtra, India

** Ph.D. Scholar, Department of Anthropology, Shavitribai Phule

Pune University, Pune Maharashtra, India

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 IRSHAD KHAN AND PRADNYANAND JONDHALE

Abstract:

The evolution of the human rights movement clearly illustrates

humanity’s ongoing struggle toward creating a better world.”

– Robert Alan

Human rights are "rights and freedoms to which all humans are
entitled. Proponents of the concept usually assert that everyone
is endowed with certain entitlements merely by reason of being
human. Right, give expression to how all humans participate fully
in civil society. Defining the idealized norms against which a
society may be measured. As an expression of civic values that
operate within any society, rights derives from the marriage of
religious, philosophical, and legal principle that address social
justice in the context of the worldwide struggle to combat
oppression and inequity. They do out of an underlying, deep-
rooted respect for human life, dignity, and diversity. Right cannot
be thought of in isolation from a human. They are part of an
integrated vision of what it means to participate in diverse
human experiences. These run from the most basic interaction
with the environment to the ways in which people live day–to–
day to catastrophic events like war, genocide, or pandemics.
Right, affect the local and intimate human relationship and the
global relations that govern the way human capital and energy
are exchanged, manipulated, and exploited. Right typically
entails freedoms that make humans seem individual-oriented.
But they also address the duties and responsibilities that make
these freedoms more than simplistic expressions of individual
self-interest. Finding the appropriate balance between individual
self-interest and broader civic, and communitarian interests is
the crucial problem at the heart of most human rights. In this
paper, the fundamental purpose of the work of human rights
NGOs is to ensure that governments, and other entities that hold
power, protect and promote human rights and fulfill their human
rights obligations. In this respect, human rights organizations are
rather distinctive. Genuine human rights organizations do not
take sides with respect to particular political or other interest

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groups. At the same time, whenever they lobby or campaign for

victims or otherwise advocate for changes in law, public policy,
or official practice, they challenge the status quo. Much human
rights work involves opposing, criticizing, or challenging the
opinions to those criticizing or challenging the opinions to those
in positions of authority.

Key Words: Human rights, NGOs, Role, Promotion, Protection,

Introduction:

Human rights as the ‘Rights relating to life, liberty, equality, and

dignity of individuals guaranteed by the constitution or embodied
in international covenants and enforceable by the courts in India’
The term non-governmental or, more accurately non-profit is
normally used to cover the range of organizations which go to
make up civil society. Such organizations are characterized, in
general generally characterized by having something other than
financial profit as the purpose of their existence huge multitude of
reasons for existence, and a wide variety of enterprises and
activities. NGOs range from small pressure groups on, for
example, specific environmental concerns or specific human
rights violations, through educational charities, women's refuges,
cultural associations, religious organizations, legal foundations,
humanitarian assistance, and programs. The Economic and
Social Council may make suitable arrangements for consultation
with non-governmental organizations which are concerned with
matters within its competence. Such arrangements may be made
with international organizations and, where appropriate, with
national organizations after consultation with the Member of the
United Nations concerned.

Meaning of Human Rights:

Human rights encompass an array of political, economic and

social areas and, while defining needs, also present a set of
individual rights that apply worldwide. The following in a general
definition referred by the united nation (1978): Human rights are
those rights, which are inherent in our nature and without which

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 IRSHAD KHAN AND PRADNYANAND JONDHALE

we cannot live as human beings. Human rights and fundamental

freedoms allow us to fully develop and use our human qualities,
our intelligence, our talents and our conscience and to satisfy our
spiritual and other need. In this definition, inherent right means to
allocating resource and construct in policies by which Human
Right apply to all people equally and not simply to select
individual and groups. By classifying certain rights and freedoms
as human rights, all governments recognize the common goal of
creating conditions to guarantee those rights and freedoms,
despite the intricacies involved in actually ensuring that they are
granted.

Human Right & NGO:

Human rights as the ‘Rights relating to life, liberty, equality, and

dignity of individuals guaranteed by the constitution or embodied
in international covenants and enforceable by the courts in India’
The term non-governmental or, more accurately non-profit is
normally used to cover the range of organizations which go to
make up civil society. Such organizations are characterized, in
general, by having generally characterized by having something
other than financial profit as the purpose of their existence tide of
reasons for existence and a wide variety of enterprises and
activities. NGOs range from small pressure groups on, for
example, specific environmental concerns or specific human
rights violations, through educational charities, women's refuges,
cultural associations, religious organizations, legal foundations,
humanitarian assistance programs. Tand the Economic and
Social Council may make suitable arrangements for consultation
with non-governmental organizations which are concerned with
matters within its competence. Such arrangements may be made
with international organizations and, where appropriate, with
national organizations after consultation with the Member of
NGO’s have a vital role to play in the promotion and protection of
human rights specially in the developing country, has the largest
number of NGO’s whose activates are spared in different fields for

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the welfare of human being including the promotion and

protection of human right.

Many organizations around the world dedicate their efforts to

protecting human rights and ending human rights abuses. Public
support and condemnation of abuses is important to their
success, as human rights organizations are most effective when
their calls for reform are backed by strong public advocacy. Non-
Governmental Organization is one of the examples of such
groups. In every part of the globe, there are Non-Governmental
Organizations’ (NGOs) working every hour of the day to document
the injustices heaped upon women, children and the underclass,
standing beneath the bottom rung of the society. By their active
campaigning, they remind Governments to keep their promise in
order to give practical shape to goals set by various national and
international conventions on human rights. India is estimated to
have between 1 million and 2 million NGOs. The NGO are a
necessary corollary to the democratic machinery of the
government, they are means of democratic empowerment of
those who are less powerful and less advantaged as the
government machinery and its authorized institution are not
always sufficient to guarantee the protection of human right.

Human Right & NGOs

Human rrights as the ‘Rights relating to life, liberty, equality, and

dignity of individuals guaranteed by the constitution or embodied
in international covenants and enforceable by the courts in India’.

The term non-governmental or, more accurately non-profit is

normally used to cover the range of organizations which go to
make up civil society. Such organizations are characterized, in
general, by having generally characterized by having something
other than financial profit as the purpose of their existence tude of
reasons for existence and a wide variety of enterprises and
activities. NGOs range from small pressure groups on, for
example, specific environmental concerns or specific human
rights violations, through educational charities, women's refuges,

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 IRSHAD KHAN AND PRADNYANAND JONDHALE

cultural associations, religious organizations, legal foundations,

humanitarian assistance programs. Tand he Economic and Social
Council may make suitable arrangements for consultation with
nongovernmental organizations which are concerned with
matters within its competence. Such arrangements may be made
with international organizations and, where appropriate, with
national organizations after consultation with the Member of the
United Nations concerned. NGO’s have a vital role to play in the
promotion and protection of human right specially in the
developing country, has the largest number of NGO’s whose
activates are spared in different fields for the welfare of human
being including the promotion and protection of human right.

Role of NGOs

“The 21st Century will be an era of NGOs.”

— Kofi Annan, Former UN Secretary General

The world conference on human rights was held in Vienna in

Austria in 1993, with objective “to review and assess the progress
made in the field of human right”. The resolution no 38 of the
declaration stated –the world conference on human right
recognizes the important role of Non-Government Organization in
the promotion of all human right and in humanitarian.

NGO organization have functioned as the conscience of the

national in the field of human right by taking prompt action to
investigate the instance human right by undertaking and the spot
studies and publishing the observations. NGOs play a pivotal, role
in many fields, such as in prevention of HIV/AIDS, educating to
teach and train vulnerable groups, child care, child exploitation,
and child labour, bonded labour, sex tourism, and providing
counselling in number of matters including domestic disputes,
subject relating to rights of women and children and so on.
Among the wide variety of roles that NGOs play, the following are
important -

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The Social Welfare Role - where relief and charity are key actions.
NGOs in this role can be seen as initiating internal programs and
projects.

The Mediatory Role - where communication as a skill is important

for development and social action. NGOs in this role can be seen
as participating or taking up external programs and projects.

The Consultative Role - where support documentation and

dissemination of information and expertise is critical. NGOs in this
role can be seen as working in collaborative programs. Local
experts/professionals/resource persons play major secondary
roles.

Development and Operation of Infrastructure: Community-based

organizations and cooperatives can acquire, subdivide and
develop land, construct housing, provide infrastructure and
operate and maintain infrastructures such as wells or public
toilets and solid waste collection services.

Supporting Innovation, Demonstration and Pilot Projects: NGO

have the advantage of selecting particular places for innovative
projects and specify in advance the length of time which they will
be supporting the project - overcoming some of the
shortcomings that governments face in this respect.

Facilitating Communication: The significance of this role to the

government is that NGOs can communicate to the policy-making
levels of government, information about the lives, capabilities,
attitudes and cultural characteristics of people at the local level.
NGOs can facilitate communication upward from people to the
government and downward from the government to the people.

Technical Assistance and Training: Training institutions and NGOs

can develop a technical assistance and training capacity and
use this to assist both CBOs and governments.

Research, Monitoring and Evaluation: Innovative activities need to

be carefully documented and shared - effective participatory

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monitoring would permit the sharing of results with the people

themselves as well as with the project staff.

Advocacy for and with the Poor:

In some cases, NGOs become spokespersons or ombudsmen for

the poor and attempt to influence government policies and
programs on their behalf. This may be done through a variety of
means ranging from demonstration and pilot projects to
participation in public forums and the formulation of government
policy and plans, to publicizing research results and case studies
of the poor. Thus NGOs play roles from advocates for the poor to
implementers of government programs; from agitators and
critics to partners and advisors; from sponsors of pilot projects to
mediators.

Role of NGO at International level in protecting human rights:

At the international level, the status of human rights is watched by

many NGOs. Amnesty International is one such organization. This
Organization is dedicated to publicizing violation of human rights,
especially freedom of speech and religion and right of political
dissent. It also works for the release of political prisoners and,
when necessary, for the relief of their families.

For its commendable services in the field of human rights,

Amnesty International was awarded the Nobel Prize for peace in
1977.

International NGOs Australia Asia Worker Links: It is an Australian

non-government organization active since 1979, established to
forge international labour movement links in the Asia- Pacific
region. AAWL supports union, human, indigenous and women’s
rights, promoting solidarity between unions and advocating for
improvements in corporate citizenship in the region. Its office is in
the Victorian Trades Hall Council building, Melbourne. AAWL has
conducted solidarity exchanges and study tours in many
countries including South Korea, China, India, Nepal, Sri Lanka,

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Malaysia, Thailand, Vietnam, Philippines, Papua New Guinea, and

Japan.

The Fred Hollows Foundation It is a non-profit, community based,

non-government development aid organization that focuses on
treating and preventing blindness and other vision problems. It
operates in Australia, The Pacific, South and South East Asia, and
Africa.

The Fred Hollows Foundation It is a non-profit, community based,

non-government development aid organization that focuses on
treating and preventing blindness and other vision problems. It
operates in Australia, The Pacific, South and South East Asia, and
Africa.

Khanya College It is an independent non-government

organisation based in Johannesburg, South Africa. Established in
1986, the primary aim of Khanya College is to assist various
constituencies within working class and poor communities to
respond to the challenges posed by the forces of economic and
political globalisation. The motto of the organization is “Education
for Liberation”. The Khanya College offices are located at 123
Prichard Street, downtown Johannesburg.

Legal Resources Centre the Legal Resources Centre (LRC) is a

human rights organization based in South Africa with offices in
Johannesburg, Cape Town, Durban and Graham’s town. The LRC
employs over 65 lawyer specializing in public-interest law.

Amnesty international It is an international Nongovernmental

organization which was started in 1961. Peter Benenson an
advocate wrote an article in the observer newspaper and started
a campaign appeal for amnesty because two students who
raised a toast for independence were arrested; this was the
reason for writing the article. At present Irene Khan is the
secretary general of the organization. Amnesty international have
over 2 million subscribers and supporters who fight for protection
of human rights.

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Cool Earth is a UK based international nongovernmental

organization that protects endangered rainforest to combat
global warming, protect ecosystems and provide sustainable jobs
for local people. Cool Earth also refers to a Japanese program
generally called the “Cool Earth Partnership,” inaugurated in 2007.
Cool Earth protects and secures rainforest under imminent threat
of destruction, working with other NGOs.

Human Rights Foundation: The Human Rights Foundation (HRF) is

a non-profit organization whose stated mission “is to ensure that
freedom is both preserved and promoted” in the Americas.

The Human Rights Foundation was founded in 2005 by Thor

Halverson. Its head office is in New York City, New York, USA. Its
definition of human rights focuses on the essential ideals of
freedom of self-determination and freedom from tyranny and the
rights of property.

Role of NGO at National Level in Protecting Human Right:

NGO’s having played the role of development factor has been

crucial as service providers. In the development sector, many
NGO’s have moved ahead or gap filling initiatives to capacity
building activities.

Some example as follow:

Sulabh Movement: It is a major social movement in the country

for the betterment and welfare of Dalits, in a generic sense, and in
particular for the liberation and social mainstreaming of
scavengers.

Child Relief and You (CRY): It is a voluntary organisation

committed to the upliftment of millions of children who have been
deprived of their childhood due to various reasons. Campaign
against Child Labour (CACL): The campaign against child labour
is a joint initiative of Youth for Voluntary Action (YUVA), Pune and
Tere des Hommes (Germany) India Programme. The Campaign is
currently supported by ILO and is actively working for progressive

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eradication of child labour through provision of education,

organisation of awareness programmes, promotion of legislative
changes and rescuing children in bondage or victims of abuse.

Organisations like Saheli and Chetna are actively involved in the

protection of Women’s Rights. They provide free legal aid to
women to fight for their rights against gender bias and
discrimination.

Butterflies are an NGO with a programme for street and working

children. It was started in 1988 and its activities include non-
formal education, saving schemes for children, vocational
training, holding Bal Sabhas, and creating awareness for
children’s rights, Bal Mazdoor Union, networking with other NGOs
and research and documentation. The researcher is going to look
in to some important national level NGOs in India.

Ramakrishna Mission Home of Service: It is an Indian non-

governmental organization established in Varanasi, established in
1900 and became a branch of Ramakrishna Mission in 1902. It
manages an education program on essential health problems in
schools, slums and villages of Uttar Pradesh (India) thanks to auto
produced multimedia educational films.

People’s Union for Civil Liberties: It is a prominent civil rights

organization in India. It was formed in 1976 by veteran socialist
and campaign leader Jaya Prakash Narayan, who launched it as
the People’s Union for Civil Liberties and Democratic Rights
(PUCLDR), it Was originally intended to be an organization free
from political ideologies, bringing those concerned about
defending civil liberties and human rights from different
backgrounds onto a common platform.

People’s Union for Democratic Rights: It came into existence in

1976-77 as the Delhi unit of a larger national forum, and became
PUDR on 1 February, [Link] the last two and a half decades of its
existence the organisation has taken up hundreds of instances of
violations of democratic rights, covering most parts of the country
and involving the rights of many sections of society.

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 IRSHAD KHAN AND PRADNYANAND JONDHALE

PUDR conducts investigations, issues statements, distributes

leaflets, organizes public meetings, demonstrations and dharnas,
and fights legal cases to highlight the violation of people’s rights,
and to help towards their redressal. PUDR also takes up issues of
general importance that affect the rights of people through
general campaigns, publications and legal interventions.

These include: gender equality; rights of forest dwellers and forest

policy; working class rights; agrarian conflict; caste oppression;
deaths, rapes and torture in police custody; and undemocratic
legislation, in particular the various incarnations of the ‘terrorist
act’ (TADA and POTA) etc.

Child Rights and You: Rights and You (formerly Child Relief and
You, till 2005), commonly abbreviated as CRY is a non-profit
organization in India that aims to restore children’s rights in India.
The organization was established in 1979.

The organization partners with grass-roots Non-governmental

organizations to uplift thousands of Indian children denied basic
children’s rights In 2007, its media campaign showing “smiling
kids” and asking citizens to partner instead of simple donate, was
seen as departure from stereotypical NGO sector advertising in
India.

Bandhua Mukti Morcha:Bandhua Mukti Morcha (BMM) or Bonded

Labour Liberation Front (BLLF) is a non-governmental organisation
in India working to end bonded labour. Based in New Delhi, it was
founded in 1981 by Swami Agnivesh who continues as its
chairman. Bonded labour was legally abolished in India in 1976
but it remains prevalent, with weak enforcement of the law by
state governments. Estimates of the problem vary. Official figures
include a 1993 estimate of only 251,000 bonded labourers while
BMM says there are 65 million bonded child labourers, and a
larger number of adults. A 2003 project by Human Rights Watch
has reported a major problem with bonded child labour in the silk
industry, BMM’s efforts are credited with the passing of legislation
to abolish child labour in India.

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The list of NGOs is by no means exhaustive. There are many other

organisations working for the cause of human rights. The work of
five organisations is reported here by way of illustration only.

Role of NGOs in protecting Human Right through Judiciary and

NHRC:

NGOs have played an important role in the protection of human

rights. They cannot succeed in their role unless there is help from
the judiciary. The NGOs help the victim of human right violation by
providing them assistance and advice. The NGOs have filed
cases, writ petitions and public interest litigation on behalf of
victims and public at large for protection of human rights. The
NGOs have fought against the system of bonded labour, fake
encounters by police, protection of women children’s rights,
custodial violence and custodial death, prevention of torture and
other in human practices. The judiciary has passed appropriate
order and given compensation to the victims on a petition by the
NGOs. The NHRC encourages NGOs in the human rights. The NGOs
also take up cases of violation to the NHRC and state human
rights commissions.

Conclusion:

NGOs need to expand their programmes, campaigns, skits from

yearly or bi-yearly to monthly. Frequent programmes increase the
awareness of human rights even more than yearly.

NGOs also need to get more aid both from foreign and within
India which will be useful to carry out their cause NGOs must have
clear goals and priorities, they should define what they are trying
to achieve as clearly as possible. They should think strategically
and assess how short term goals fit in with long term ones NGOs
must have a clear written work plan for both individual and staff
activities. Plan reminds people of what the goals are, it helps keep
things on track and with major projects or campaigns it helps
people see where they fit into big picture.

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 IRSHAD KHAN AND PRADNYANAND JONDHALE

Peace, development and human rights are essentially inter-

related, inter-dependent and indivisible.” – Theo van Boven The
NGO play an important role to become a concrete expression of
international, national and regional and local level voice to assist
and stand up for those who can’t speak themselves. Every human
being is entitled to certain basic human rights which are available
to them without discrimination of any sort human rights are
protected by the United Nations and its specialized agencies. In
India human rights are protected by the judiciary, human rights
commissions, apart from these organizations the Non-
Governmental organizations also have an important role in
protection of human rights. The Non-Governmental organizations
work from grass roots level to the national and international level
in the protection of human rights.

Contribution of NGOs towards the development of Human Rights

1. Government should take a lead to set up delegate

gatherings and components at the State, District, and Block
levels for Government and willful associations to meet and to
have exchanged for working together in arranging programs
so that there is more collaboration instead of rivalry.
2. They contribute a lot to the society.
3. They pressurize the government on certain issues, such as
protection of prisoners’ rights, torture etc.
4. They approach the judiciary on behalf of poor people who
otherwise have no access to justice.
5. They ask for submission of certain reports.
6. The play a special role especially in the developing countries
for the development of human rights.

References:

 Agarwal, H.O. (2018): Human Rights, Central Law Publication,

16th Edition p. no. 222
 Amnesty International (commonly known as Amnesty and
Al) non-profit NGO is an international human non-

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governmental organization founded by Peter Benenson in

Britain with over 3 million members and supporters around
the world.
 Common Cause: A Registered Society v. Union of India, AIR
1993 SC 1403, Common Cause: A Registered Society v. Union
of India, AIR 1995 SC 3081
 Deshta, S. & P. Singh (1990): Human Rights in India, Allahabad
law Agency Law Publisher, Uttar Pradesh.
 Despande & Bhagyashree A. (2017): Human Rights Law and
Practice, Central Law Publications, 1 edition, p.160
 Margaret E. K. & K. Sikkink (1998). Activists beyond Borders:
Advocacy Networks in International Politics Ithaca and
London: Cornell University Press, 228 pages.
 Marina O. (2001). Corporatism Goes Global: International
Organizations, Nongovernmental Organization Networks,
and Transnational Business; Global Governance, 7 (3), P.
265-292.
 Singh, J.B. (1972). Voluntary agencies vis-à-vis Government,
Yojna, Vol. 31, No. 4, March, P. 27.
 World Conference on Human Rights, 14-25 June 1993, Vienna,
Austria. On 25 June 1993, representatives of 171 States
adopted by consensus the Vienna.
Web Search:

1. [Link]/sepcialjustice. visited on 3rd April

2012.
2. [Link]/voices-for-humanrights/human-
rights-organization/non [Link]
3. [Link]/bss/[Link].
4. [Link] Volume 2 Issue 3 ? March. 2013? PP.24
5. What are human rights? The nature and sources of human
rights, available at, [Link] (accessed 10
March 2012)

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CRIMES AGAINST WOMEN: A BLOT

ON GENDER EQUALITY AND

WOMEN EMPOWERMENT

Dr. I. Princes*

* Assistant Professor Department of History Loyola College

(Autonomous) Chennai - 600 034

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Abstract

Women, constituting half of the nation, are still in social

bondage and they suffer a lot in human history. They suffered for
lack of social liberty due to child marriages, polygamy, enforced
widowhood and want of education. Distinct gender roles are one
major reason for violence against women. Our society has long
been dominated by these gender norms and relationships.
Crimes like rape, dowry death, domestic violence, kidnapping,
molestation, torture, sexual harassment are experienced by
women in India. Crimes have physical and psychological impact
on women which preventing the women from leading a standard
life. Male dominated Indian society is one in all the most causes of
crimes against women. Crimes against women harm families and
communities across generations and reinforce other evils
prevalent in society. As the offense is common in India, the
government and the authorities try to secure women in every
possible manner. The Protection of Women from Domestic
Violence Act, 2005, and many amendments in Criminal Law have
been implemented to various acts that act against the modesty
and dignity of a woman. There must be more awareness about
the root causes of the violence against women. Equal rights for
men and women must be a topic of initial education for both
sexes. Women should be encouraged more to speak up or raise
their voices against violence.

Key Words: Violence, Harassment, Polygamy, Abuse, Victims

Introduction

Manu, the ancient Hindu law-giver, laid down that a

woman must remain subject to her father in childhood, to her
husband in youth, and to her sons when she become a widow. In
other words, she could never be independent. Women,
constituting half of the nation, are still in social bondage and they
suffer a lot in human history. They suffered for lack of social liberty
due to child marriages, polygamy, enforced widowhood and want
of education. As mothers, women represent the unfathomable

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depths of human sentiments, and, as sisters, they have risen to

the unscalable heights of the finest human values of selfless
affection and sacrifice. It is really impossible to describe
individually the various roles women play to make the world
better. The whole family revolves around the efforts of the women,
as also the whole society and the nation.

In the social and cultural fields, they have gradually lost

their position. In the economic sphere of activity though they are
playing major roles out their contribution is not recognised and as
a class they are occupying a secondary position. Unfortunately,
the helplessness that pervade in different walks of life, has led to
their exploitation at almost every step in life. The treatment of
women in the society is cruelty and exploitation. There atrocities
are of many types which range from mental to psychological
assaults which so often result in killing or suicide. We cannot see a
newspaper every day without such incidents of rape, kidnapping,
suicide or dowry death, ill-treatment of women takes several
forms. The first category consist of individual acts which stop
short of death of the victims like eve teasing, wife-beating etc, In
all these incidents, women generally are not responsible.

In our society, violence is being committed in different

ways, for different causes by different people against race,
community, caste, family and individual. The women-folk, which is
an indifferent segment as well as a reproductory organ of the
society, has been relentlessly facing this violence for a long time.
No doubt, nature and type of various violence against women is
viewed differently in different societies and at different places.
However, the root causes of violence in generals remain almost
the same. Broadly speaking violence against women may be
conceived into two major forms i.e. physical and mental. It is
manifested mainly in the form of an outrage of modesty, burning
and beating of women or any sort of physical torture. Even the
early marriage, the frequent conceiving and the female
infanticide belong to this category. The burdensome liabilities,
imposition of social taboos and socio religious disabilities,

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prohibition on widow remarriages, non-fulfilling of one’s basic

needs by one’s guardians their failure in providing protection and
guardianship respectively in childhood, youth and old age, even
the failure in arranging a suitable match at her marriageable age,
in congruous marriages, bride price and dowry system causing
both the physical and mental torture are the manifestations of
violence against women.

Domestic Violence can be described as where one adult in

a relationship misuses power in order to control another. It is the
establishment of fear in a relationship through violence that
includes other forms of abuse. The violence may involve physical
abuse, sexual assault and threats. At times it can be more subtle,
such as making someone feel worthless, not letting them have
any money, or not allowing them to leave the home. The
observations prove that violence, whatever be its kind, seems
overtly to be committed due to some personal causes and for
personal interests but covertly the roots of all kind of violence lie in
the structural and the organisation patterns of society. It is also
observed that most of the physical violent incidents are occurred
partly in the middle and mostly in the lower middle and lower
class communities where as the mental violence is observed
partly in middle and mostly in upper middle and upper class
societies.

In India, women are guaranteed equally freedom,

opportunity and protection by the constitution and several
legislations. Crimes against women are broadly classified under
two categories:

1. The crimes identified under the Indian Penal Code

(i) Rape (Sec. 376 IPC)
(ii) Kidnapping and Abduction for different purposes
(Sec. 363, 373 IPC)
(iii) Homicide for dowry, dowry deaths or their attempts
(Sec. 302/304-B IPC)
(iv) Torture, both mental and physical (Sec. 498-A IPC)
(v) Molestation (Sec. 354 IPC)

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 DR. I. PRINCES

(vi) Sexual harassment (Sec. 509 IPC)

(vii) Importation of girls (up to 21 years of age) (Sec.
366-B IPC)

2. The crimes identified under Special Laws

Reprehensible social practices such as commission of sati,
demand for dowry, trafficking of women for immoral purposes
etc, are identified as offences punishable under the following
special social enactments to safeguard women and their
interests. They are

(i) Commission of Sati (Prevention) Act, 1987

(ii) Dowry Prohibition Act, 1961
(iii) Immoral Traffic (Prevention) Act, 1956
(iv) Indecent Representation of Women (Prohibition)
Act, 1986
Sexual Harassment at Workplace

Sexual harassment is a common problem affecting all

women in this world irrespective of the profession that they are in,
but legal system is sleeping and so they fail in providing them
security. It’s not all, women living in those countries having
developed legal system faces other problems like being fired out
of work, ridiculed, societal pressure or promises of desired
promotion, etc. that makes them left with no words. Sexual
harassment is about male dominance over women and it is used
to remind women that they are weaker than man. In a society
where violence against women is posed just to show the
patriarchal value operating in society, these values of men pose
the greatest challenge in curbing sexual harassment. According
to the law in India, sexual harassment violates the women’s
fundamental right of gender equality and life with dignity under
article 14 and article 21 respectively. Although there are no specific
laws for curbing sexual harassment at the workplace in India but
certain provisions are there in other legislation like Indian Penal
Code, which provides protection against women’s sexual
harassments such as in IPC. Change in attitude of people is a

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basic requirement for implementing any law in the society for

women. This implementation of laws leads to protection against
undesired sexual behavior. The prevention of sexual harassment
should be done at all level of employees and it should be checked
that the women employees get a positive environment.

Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013 was passed with the objective
of providing protection to the women at workplace. Sexual
harassment is when one person subjects another person to an
unwelcome act of physical intimacy like grabbing, brushing,
touching, pinching, eve teasing, makes an unwelcome demand or
request directly or by implication for sexual favors from another
person, shows a person any sexually explicit visual material, in the
form of pictures/cartoons/pin-ups/calendars/ screensaver
version computers/any offensive written material / pornographic
e-mails or any other form of unwelcome conduct of a sexual
nature, eve teasing, jokes likely to cause awkwardness or
embarrassment, innuendos, sexist remarks. This statute
superseded the Vishakha Guidelines for prevention of sexual
harassment introduced by the Supreme Court of India. Every
employer is required to constitute an Internal Complaints
Committee at each office or branch with 10 or more employees.
The act covers students in schools and colleges as well as
patients in hospitals, employers and local authorities will have to
set up grievance committees to investigate all complaints. Any
aggrieved woman may file a complaint in writing to the internal
committee/ Local Committee within 3 months from the date of
incident or the date of the last incident in case of a series of
incidents. The victim can also file a complaint with Police under
Indian Penal Code 1860 under Sections 294,354, 354A, 509.

Sexual harassment at workplace is highly prevalent in

India and there is a need to provide a positive environment to the
women workers. Government should make separate laws dealing
with this issue. It should also realize that women worker also
constitute a part of working population in India and it’s the duty of

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the government to provide them security at work. New strategies

should be made by the employers and managers to protect the
organisation from this evil. Government and employers should
ensure that women should be treated equally and gender
discrimination should not take place at the workplace. Effective
implementation of the policies can reduce the manifestation and
mutilation of the sexual harassment to the minimum. One
organisation can alter its approach to handle sexual harassment
by viewing other organisations tactic. This will reduce or eliminate
glitches caused by this harmful transgression. Government
should understand that separate laws may not bring about
equality in gender relations but a law dealing with sexual
harassment would provide women immense support in their
struggle.

Acid Attack

Acid throwing, also called an acid attack is a form

of violent assault defined as the act of throwing acid or a
similarly corrosive substance onto the body of another with the
intention to disfigure, maim, torture, or kill. Perpetrators of these
attacks throw acid at their victims, usually at their faces, burning
them, and damaging skin tissue, often exposing and sometimes
dissolving the bones. The long term consequences of these
attacks may include blindness, as well as permanent scarring of
the face and body, along with far-reaching social, psychological,
and economic difficulties. Section 326A and Section 326B of the
Indian Penal Code, 1860 provide the punishment for voluntarily
causing grievous hurt by use of acid and voluntary throwing or
attempting to throw acid respectively. Section 100 of the Indian
Penal Code allows the right of private defense to the extent of
causing death if there is acid is thrown or there is an attempt of
throwing acid.

Rape

Rape is one of the most heinous atrocities committed on a

woman in our society .It is known to be the fourth most common

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crime against women in India. Rape takes place if a man has

sexual intercourse i.e, penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or inserts, to any extent, any object
or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any
other person; or manipulates any part of the body of a woman so
as to cause penetration into the vagina, urethra, anus or any part
of body of such woman or makes her to do so with him or any
other person; or applies his mouth to the vagina, anus, urethra of
a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven
descriptions:—

1. Against her will.

2. Without her consent.

3. With her consent, when her consent has been obtained by

putting her or any person in whom she is interested, in fear of
death or of hurt.

4. By getting her consent by pretending to be her husband.

5. When she does not understand the nature and consequences

of what she has consented to because of unsoundness of
mind or under the influence of alcohol.

6. With or without her consent, when she is under eighteen years

of age.

7. When she is unable to communicate consent.

A rape victim can file an FIR in the local police station under
following Sections of Indian Penal Code.

8. 376-Punishment for Rape

9. 376A-Punshment for causing death or resulting in persistent

vegetative stage of victim.

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 DR. I. PRINCES

10. 376B- Sexual Intercourse by Husband upon his wife during

separation

11. 376C- Sexual Intercourse by Person in Authority

12. 376D-Gang Rape

Domestic Violence

Domestic violence in India includes any form of violence

suffered by a person from a biological relative but typically is the
violence suffered by a woman by male members of her family or
relatives. Historically, domestic violence was understood as a
concerning threat to women’s lives in India driven by the Dowry
system. Therefore, the earliest legislations in the country to stop
violence leading to so-called “dowry deaths” were
implemented through an amendment to the Dowry Prohibition
Act (1961). Section 304B of the Indian Penal Code criminalized
any form of violence with respect to dowry demands by a
husband or in-laws. India has adopted the Convention on the
Elimination of All Forms of Discrimination against Women and the
Universal Declaration of Human Rights, both of which ensure that
women are given equal rights as men and are not subjected to
any kind of discrimination. The Constitution of India also
guarantees substantive justice to women. Article 15 of the
Constitution provides for prohibition of discrimination against the
citizens on grounds of religion, race, caste, sex or place of birth or
their subjection to any disability, liability or restriction on such
grounds. Article 15 (3) gives power to the legislature to make
special provision for women and children. In exercise of this
power, the Protection of Women from Domestic Violence Act was
passed in 2005. The term "domestic violence" includes elaborately
all forms of actual abuse or threat of abuse of physical, sexual,
verbal, emotional and economic nature that can harm, cause
injury to, endanger the health, safety, life, limb or well-being, either
mental or physical aspects of the aggrieved person. The definition
is wide enough to cover child sexual abuse, harassment caused

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to a woman or her relatives by unlawful dowry demands, and

marital rape.

Domestic Violence can be described as where one adult in

a relationship misuses power in order to control another. It is the
establishment of fear in a relationship through violence that
includes other forms of abuse. The violence may involve physical
abuse, sexual assault and threats. At times it can be more subtle,
such as making someone feel worthless, not letting them have
any money, or not allowing them to leave the home. Complaint
can also be filed under Section 498A for cruelty by husband or his
relatives along with demand for dowry.

To curtail the growing incidents of dowry torture and

dowry death, a new Section was incorporated into Indian Penal
Code, that is, Section 498 A. According to this Section, whoever
being husband or relative of husband of a woman, subjects her to
cruelty shall be punished with imprisonment for a term which
may extend to three years and fine. Cruelty herein means any
willful conduct that is likely to drive a woman to commit suicide or
to cause grave injury or danger to her life, limb or health (whether
physical or mental) of the woman or harassment to force her to
meet any unlawful demand for any property or security or on
failure to meet the demand. Later, Section 198 A was added to
the Criminal Procedure Code in 1983. In 2005, the Protection of
Women from Domestic Violence Act was passed, which added to
protect women from dowry harassment. Section 304 B was added
to the Indian Penal Code, 1860, which made dowry death a
specific offence punishable with a minimum sentence of
imprisonment for 7 years and a maximum imprisonment for life.
Further, under Section 4 of the Dowry Prohibition Act, 1961 a
demand for Dowry is an offence wherein demand is made at the
time of or even after marriage even where no cruelty is involved.
Wife beating is physical abuse of a woman by her present or
former husband or male companion. It consists of repeated blows
inflicted with intent to do harm. Threats and verbal abuse that

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were preceded by beating are part of a pattern of control of a

wife by her husband that is basic to wife beating.

Kidnapping and Abduction

Kidnapping means taking away a person against his/her

will by force, threat or deceit. Usually, the purpose of kidnapping is
to get a ransom, or for some political or other purposes etc.
Kidnapping is classified into two categories in Section 359 of the
Indian Penal Code and defined in Section 360 and 361 of the
Indian Penal Code.

As per Section 359 of the Indian Penal Code, Kidnapping is of two

types:

1. Kidnapping from India,

2. Kidnapping from lawful guardianship.

Section 360 explains kidnapping from India. According to

section 360, if any person takes a person beyond the limits of
India against the consent of that person or against the consent of
someone who is legally entitled to give consent on that person’s
behalf, then the offence of kidnapping from India is committed.

Section 361 explains kidnapping from lawful guardianship.

According to this section, if a person takes away or entices a
minor (i.e, a boy under the age of 16 years and a girl under the
age of 18 years) or a person of unsound mind, away from his/her
lawful guardian without the guardian’s consent, then that person
commits the offence of kidnapping from lawful guardianship.

Conclusion

Violence against women and girls is a human rights

violation, and the immediate and long-term physical, sexual, and
mental consequences for women and girls can be devastating,
including death. Violence negatively affects women's general
well-being and prevents women from fully participating in
society. These include the right to live free from violence and

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discrimination; to enjoy the highest attainable standard of

physical and mental health; to be educated; to own property; to
vote; and to earn an equal wage. But across the globe many
women and girls still face discrimination on the basis of sex and
gender.

References

1. Chaudhuri, Maitrayee, Feminism in India, Kali for Women,

New Delhi, 2004.
2. Aasan GVK, Social Disabilities and Human Rights, The
Modern Rationalist monthly, Madras, 1999.
3. Menon Nivedita, Gender and Politics in India, Oxford
University Press, New Delhi, 1999.
4. Mary Evans, The Woman Question, Sage Publications, New
Delhi, 1994.
5. Shashi Jain, Status and role Perception of Middle Class
Women, Puja Publishers, New Delhi, 1988.
6. Ghazala Parveen, Empowerment of Women in India,
Manak Publications Pvt, Ltd, Delhi, 2011.
7. Gariyali C.K, Vettivel S.K, Women’s Own, The Self-help
Movement of Tamilnadu, Vetri Publishers, New Delhi, 2004.
8. Hajira Kumar, Jaiman Varghese, Women’s Empowerment:
Issues, Challenges and Strategies, Regency Publications,
New Delhi, 2005.
9. Jyotirmay Mandal, Women and Reservation in India,
Kalpaz Publications, Delhi, 2003.
10. Andal N, Women and Indian Society: Options and
Constraints, Rawat Publications, New Delhi, 2012.
11. Sunit Gupta, Mukta Gupta, Role of Women in the 21st
century, Anmol Publications Pvt. Ltd, New Delhi, 1996.

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 DR. SAUMYA SHANKER

Hundred years of Juvenile Justice

System In India

Dr. Saumya Shanker*

* Assistant Professor, Department of Sociology/ Social

Science, DSMNRU, Lucknow, Uttar Pradesh.

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Delinquency as a non-conformist behavior on the part of a

child not only manifests a problem of personal disorganization
but also symptomatizes a state of social break down. The
problem in its entirety seldom comes to the surface, most of it
being outside the reach of law enforcement agencies. The nature
of the problem varies from culture to culture and within the same
culture from time to time. It therefore needs to be understood as a
separate entity quite different from the adult criminal justice
system.

Even though juvenile delinquency rates are currently lower in India

than in many other countries, they are bound to increase in the
future. At present, however, cruel treatment, punishment and
victimization of children are a more serious problem. Since
Independence, several acts have been introduced to improve the
Juvenile Justice System.

To understand the system of juvenile protection and welfare, one

needs to clearly understand the Juvenile Justice System as
distinct from the Criminal Justice System. The differential
treatment given to the child, which has been in the process of
evolution over hundreds of years, creates a separate Juvenile
Justice System, other than the Criminal Justice System which is,
obviously, meant for the adults, that is, those over 18 years of age.
This system of separate legal and administrative treatment
operates beyond the realm of Law alone and drifts into the
complex dynamics of socio-economic, psycho-emotional and
the family- community based institutional and non-institutional
interventions and organizations.

To understand the distinction between the Juvenile Justice

System and the criminal justice system it is important to go back
to the history of Juvenile Justice System in India. This paper will
talk about 100 years of trajectory of JJS and its implementation in
Pre and Post Independence India

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 DR. SAUMYA SHANKER

Pre-Independence

With the emergence of the East India Company as a governing

body from trading company led to the introduction of the first
legislation relating to children in India. The colonial exploitation
had whipped out the indigenous rural economy, forcing many a
class of people to slums in the suburbs. It also increased
destitution and delinquency among Indian children. Concern for
the welfare of children took many shapes. The first ragged school
for orphans and vagrant children in India was established in 1843
through the efforts Englishman, Dr. Buist. This school is now known
as David Season Industrial School. The objects of the school was
the reformation of juvenile offenders and encouragement of
apprenticeship.

Under British rule in India the Common Law practice of

‘parenspatriae’ (Parenspatriae is Latin for "father of the people".)
In law, it refers to the public policy power of the state to intervene
against an abusive or negligent natural parent, legal guardian or
informal caretaker, and to act as the parent of any child or
individual who is in need of protection) marked the practice of
differentiating juveniles from adult cases 58. However British law
had meager effect as most communities had few crimes, and
most interpersonal problems were settled in panchayats, informal
village courts. Children’s law violations and disciplinary problems
were handled by parents, caste and panchayat elders. These
practices continue to some extent even today.

The Indian legal system, which was founded on Common Law

practices was introduced during the British occupation of India.
The impact of Common Law on juveniles in India began with the
Apprentices Act of 1850, which provided power to magistrates to
commit destitute, vagrant, and delinquent children to parents,
guardian, or specified institutions as apprentices to learn trades
for employment instead of sending them to prison for minor
offences. This act related to juveniles between the ages 10 and 18,

58Vicentnathan SG(2006), Juvenile Justice in India, In Delinquency and Juvenile Justice System in the Non-Western
World, (eds) Friday PC &Ren X, New York, Criminal Justice Press, pg- 25

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who could be held in these types of programs until they become

21 years of ages.

The Indian Penal Code 1860 which worked on the theory of

deterrence and retribution, deemed children below 7 years of age
as incapable of committing a crime (doliincapax), while the
presumption of mensrea could be rebutted in case of children in
the 7-12 age group since the child in this age is immature and
cannot understand the act they have done, the consequences of
their actions or what they have done is wrong.

The Whipping Act 1864, provided for the jails having separate
provisions for juveniles. the Prison codes of Madras, Bombay,
North Western Provinces and Bengal were modified in order to
ensure the segregation of juveniles from adult offenders within
the prisons.

In 1874, Sir Richard Temple (Lt. Governor of Bengal at that time)

realized that the juvenile offenders present in the jails were
growing in vice and ignorance59. He therefore felt that they should
be subjected to reformation and industrial training. The
Reformatory Schools Act of 1876was thus set up which permitted
young offenders (till the age of 15) to be sentenced to reformatory
schools instead of being detained in prisons. It also reduced the
severity of punishment to juveniles who had committed serious
[Link] empowered local governments to establish
reformatory schools, and the sentencing court could detain boys
in such institutions for a period of two to seven years.

A year later, the Code of Criminal Procedures of 1898 elaborated

the methods of accomplishing these aims. It outlined specialized
treatment for juvenile offenders, including the sending juvenile
offenders to reformatories instead of prisons and probation for
good conduct to offenders up to the age of 21. The establishment

59RathoreVaishali (2019), An Insight Into Indian Juvenile Justice System, Notion Press Media Pvt. Ltd.
60Siddique A (1978), Criminology Problems and Perspectives, Lucknow, Eastern Book Company, pp- 129-
130

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 DR. SAUMYA SHANKER

of reformatory schools advocated reformation and

decriminalization of the juvenile justice system as well.

The Madras children’s Act of 1920, which was the first

comprehensive Act to be introduced in India, provided for
juveniles courts, juvenile institutions and juvenile treatments.
These courts were established with broad powers. They could be
either separate, or part of adult courts with ‘parenspatriae’
[Link] hearings were conducted separately, privately,
informally and practically without the right to appellate review.
Felony cases for which juveniles mighty be given death sentence
were not handled in the juvenile or magistrate courts, but were
sent to higher level courts with jurisdictions over adults. The
Madras Borstal School Act of 1925 created industrial schools for
occupational training, moral development, and rehabilitation of
delinquents62. Enactments and changes were eventually
introduced to modify the system.

The Vagrancy Act, 1943, provided for care and training of children
below 14 years who lived on begging, were under unfit
guardianship, or under the care of parents with drinking or
criminal habits, frequently visited prostitutes, were destitute, or
subjected to bad treatment. Mass migration of people between
India and Pakistan on the eve of independence aggravated the
problem of Juvenile Delinquency and destitution 63.

Post-Independence

The Constitutions of India, created in 1949 after independence,

recognizes the rights of the accused- the right against self-
discrimination, the right to an attorney, and the right to freedom
(article 20, 21, and 22 of the Indian Constitution).This along with
many other constitutional safeguards the approach towards a
just and separate juvenile justice system was now also centered

61VicentnathanSG(2006), Juvenile Justice in India, In Delinquency and Juvenile Justice System in the
Non-Western World, (eds) Friday PC &Ren X, New York, Criminal Justice Press, pg- 28
62Arulselvam M (2002), Law Relating to Juveniles and Probation, Chennai, Marathi Publications, pp- 226-

246
63RathoreVaishali (2019), An Insight Into Indian Juvenile Justice System, Notion Press Media Pvt. Ltd.

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onseveral international treaties such as the UNCRC, UN Standard

Minimum Rules for Administration of Juvenile Justice (Beijing
Rules).

Eventually the Children’s Act of 1960 was enacted in India

incorporating most of the provisions provided in earlier acts and
practices. The central government enacted the Chidren Act for
the protection and care of children in areas designated as Union
Territorie, which were under the direct control of the central
[Link] act included provisions for homes certified
schools and release on probation. It recognized the importance of
legal rights and later led to agreeing that a defense attorney can
be present in juvenile [Link] were now to be dealt by
juvenile courts. It was the act that prohibited the imprisonment of
juvenile offenders in union territories and lay down separate
mechanisms to deal with juveniles in need of care. It enunciated
the basic philosophy of care, protection, maintenance, welfare,
training, education and rehabilitation of neglected and
delinquent children. In1974 India declared its National Policy for
Children, the policy included training and rehabilitation of
delinquent, destitute, neglected and exploited children.

This Children’s Act was replaced with the Juvenile Justice Act of
1986. This act could be proclaimed as the first pan-India child
welfare enactment which brought about a uniform juvenile justice
system in the country by incorporating all child related
legislations in the country. It seeks to promote ‘the best interests
of the juveniles65and also greater power to juvenile courts even to
hear capital cases involving juveniles. This JJ act mandated for
the first time the care, protection, treatment, development and
rehabilitation of neglected and dependent juveniles, and for the
adjudication and disposition of delinquency cases throughout the
country. The JJA developed separate procedures for juveniles
accused of committing a crime and for those considered

64Chalraboty T (2002), Juvenile Delinqunecy and Juvenile Justice in India, In J.A. Winterdyk (Ed.),
JuvnileJustuce System: International Perspectives, Toronto, Canadian Scholars Press, pp 265-296
65Bajpai G.S (2019), Juvenile Justice, Bloombury India, New Delhi

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 DR. SAUMYA SHANKER

neglected and dependent children. Juveniles courts were

established to handle girls under 18 and boys under 16 accused of
committing crimes. Welfare boards were created to deal with
neglected and dependent children66.

The Juvenile Justice (Care and Protection of Children) Act, 2000

brought in compliance of the CRC after India ratified convention
in 1989 replaced the act of 1986. The Juvenile Justice Act of 2000
made more significant strides in providing for legal safeguards,
procedures and rights, in addition to rehabilitation services. It
saved children from being subject to death penalty. This act was
heavily influences by the 1985 United Nations Standard Minimum
Rules for Administration of Justice, the 1989 United Nations
Conventions for the Rights of the Child and the 1990 United
Nations Rules for Protection of Juveniles Deprived of Their Liberty67.
More than any other act before, the Juvenile Justice (Care and
Protection of Children) Act, 2000 provides legal rights, protection
and rehabilitation for juveniles in conflict with law and for children
in need of care and protection. If its rationale and suggested
practices are followed the Juvenile Justice System will
significantly improve.

This act has been further amended in the year 2006 and 2010.
Presently India is executing Juvenile Justice (Care and Protection
of Children) Act, 2015, after Justice (Care and Protection of
Children) bill, 2015 received assent on 31st December 2015.

It is quite possible to handle the problem of the neglected child

through the informal system of social control of the family and the
community. It is possible for the social workers and NGOs to look
after neglected children on their own with help and support from
the government agencies within the given infrastructure. The
Juvenile Justice System tries to treat and rehabilitate youngsters
who become involved in delinquency. The methods can be
categorized as community treatment, residential treatment, non-

66Unnithan
N.P (2013),Crime and Justice in India, Sage Publications, New Delhi, pg-309
67Vicentnathan
SG(2006), Juvenile Justice in India, In Delinquency and Juvenile Justice System in the
Non-Western World, (eds) Friday PC &Ren X, New York, Criminal Justice Press, pp: 29

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residential community treatment, and institutionalization 68. In

most instances community treatment involves placing the child
on probation. When the child is not believed to be harmful to
others, he or she is placed under the supervision of an officer of
the juvenile court and must abide by the specific rules that are
worked out between the officer and the child. In some instances
community treatment also takes the form of restitution, in which
the child reimburses the victim either through direct payment or
through some form of work or community service.

Residential treatment generally takes place in a group home

where the juvenile is provided with psychological and vocational
counseling. Other forms of residential treatment include rural
programs such as forestry camps and work farms. Youngsters
placed in non-residential community-based treatment
programs live at home and receive treatment from mental
health clinics or similar services.

Institutionalization is the most severe form of treatment for

juvenile offenders. Institutionalized children are considered as
highly deprived class of society. These children are left helpless,
abandoned, neglected due to social, economic and personal
reasons by the parents/ caregivers and they are deprived of one
or more necessities of life. Early separation from parents,
deprivation of parental care, love, affection, warmth, security,
acceptance and discipline during childhood disrupts their normal
socio-emotional development.

The dispensing of distinct treatment to juveniles as obligated

under juvenile legislation is defeated if the police treat
juveniles in the same manner as they treat hardened criminals.
So the Statement of Objects and Reasons of JJA 2000 includes
to create special juvenile police units with a humane approach
through sensitization and training of police personnel.
Accordingly, JJA 2000 envisages the setting-up of the Special
Juvenile Police Unit (SJPU) in every district and city, and the

68Paulo SérgioPinheiro (2005), World Report on Violence Against Children, New York, United Nations
Publication, pp- 195-196

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 DR. SAUMYA SHANKER

designation of at least one police officer attached to a police

station as “the juvenile or the child welfare officer”.

Section 63 (1) of the Juvenile Justice (Care and Protection of

Children) Act, 2000 states the following points (1) that in order to
enable the police officers who frequently or exclusively deal with
juveniles or are primarily engaged in the prevention juvenile
crime or handling of the juveniles or children under this Act to
perform their functions more effectively, they shall be specially
instructed and trained. (2) In every police station at least one
officer with aptitude and appropriate training and orientation may
be designated as the ‘juvenile or the child welfare officer’ who will
handle the juvenile or the child in co-ordination with the police. (3)
Special juvenile police unit, of which all the police officers
designated as above, to handle juveniles or children will be
members, may be created in every district and city to co-
ordinate and to upgrade the police treatment of the juveniles
and the children.”

Section 15 of JJA 2000 deals with orders that the JJB can pass on
reaching a finding that a juvenile has committed an offence, and
sub- section (2) of section 15 states that the “The Board shall
obtain the social investigation report on juvenile either through a
probation officer or a recognized voluntary organization or
otherwise, and shall take into consideration the findings of such
report before passing an order.”

The Juvenile Justice (Care and Protection of Children) Act, 2000

prescribes for child-friendly approach and adjudication and
disposition of matters in the best interest of the children in the
preamble itself. Further, the provision of involvement of social
workers and voluntary organizations in the running the
institutions, production of children, the functioning of the
Competent Authorities and Advisory Boards, have been made to
make the institution more homely and child-friendly. Only when
the provisions of the Juvenile Justice Act are properly
implemented the children will feel happy to stay in these Homes
and would enable their proper growth and development. The

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programmers are likely to be more meaningful which may help to

rehabilitate the children in the society. Provisions like Adoption,
Foster care and Sponsorship are aimed at rehabilitation and, at
the same time, would become the means to deinstitutionalize
children.

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 ORIGIN AND DEVELOPMENT OF

HUMAN RIGHTS IN INDIA -A STUDY

[Link]*

* Assistant Professor Department of History Loyola College

Chennai-600034.

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Abstract

The rights may exist as natural rights or as legal rights, in

both national and international law. The doctrine of human rights
in international practice, within international law, global and
regional institutions, in the policies of states and in the activities of
non-governmental organizations has been a cornerstone of
public policy around the world. The idea of human rights states, "if
the public discourse of peacetime global society can be said to
have a common moral language, it is that of human rights."

Many of the basic ideas that animated the human rights

movement developed in the aftermath of the Second World War
and the atrocities of The Holocaust, culminating in the adoption of
the Universal Declaration of Human Rights in Paris by the United
Nations General Assembly in 1948. The ancient world did not
possess the concept of universal human rights. Ancient societies
had "elaborate systems of duties, conceptions of justice, political
legitimacy, and human flourishing that sought to realize human
dignity, flourishing, or well-being entirely independent of human
rights".

Key words: Human Rights, Political legitimacy, United Nations,

Human dignity, Indian Constitution

INTRODUCTION

The modern concept of human rights developed during

the early Modern period, alongside the European secularization of
Judeo-Christian ethics. The true forerunner of human rights
discourse was the concept of natural rights which appeared as
part of the medieval Natural law tradition that became prominent
during the Enlightenment with such philosophers as John Locke,
Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured
prominently in the political discourse of the American Revolution
and the French Revolution. The philosophy of human rights

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 [Link]

attempts to examine the underlying basis of the concept of

human rights and critically looks at its content and justification 69.

One of the oldest Western philosophies of human rights is

that they are a product of a natural law, stemming from different
philosophical or religious grounds. Other theories hold that
human rights codify moral behavior which is a human social
product developed by a process of biological and social evolution
(associated with Hume). Human rights are also described as a
sociological pattern of rule setting (as in the sociological theory of
law and the work of Weber). These approaches include the notion
that individuals in a society accept rules from legitimate authority
in exchange for security and economic advantage (as in Rawls) –
a social contract.

The basis of most modern legal interpretations of human

rights can be traced back to recent European history. The Twelve
Articles (1525) are considered to be the first record of human
rights in Europe. They were part of the peasants' demands raised
towards the Swabian League in the German Peasants' War in
Germany. The first article echoes Martin Luther's tract on the right
and authority of a Christian assembly or congregation to judge all
doctrine, to call, install, and dismiss [theological] teachers, as laid
down in Scripture (1523). Luther's doctrine of the priesthood of all
believers gave laymen the right to elect their ministers. The
Twelve Articles were clearly inspired by the Reformation
movement. 70

HISTORY OF CONCEPTS

. This right was at the center of the human-rights debate in

the sixteenth century, at a time when the term human rights did
not even exist yet. This at times dramatic struggle started with
Luther's refusal to recant his beliefs before the Diet of the Holy
Roman Empire at Worms in 1521, unless he was proved wrong by

69 Blattberg, C.,The Ironic Tragedy of Human Rights- Patriotic Elaborations: Essays in Practical Philosophy, (London,
2010), pp. 43-59.
70 Mahajan. B., Human Rights, A Crowded Field, The Economist, (London), May 27, 2010.

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Scripture. In his view, faith is the free work of the Holy Spirit and
therefore cannot be forced upon a person. In particular, as
persecuted religious minorities, the Anabaptist and the
Huguenots demanded freedom of religion. In the early
seventeenth century, Baptist theologians like John Smyth, Thomas
Helwys, and Roger Williams published tracts that vigorously
defended freedom of conscience.71

One theory for the development of the modern concept of

human rights is that it was developed during the early Modern
period, alongside the European secularization of Judeo-Christian
ethics.

The earliest conceptualization of human rights is credited

to ideas about natural rights emanating from natural law. In
particular, the issue of universal rights was introduced by the
examination of the rights of indigenous peoples by Spanish
clerics, such as Francisco de Vitoria and Bartolomé de Las Casas.
In the Valladolid debate, Juan Ginés de Sepulveda, who
maintained an Aristotelian view of humanity as divided into
classes of different worth, argued with Las Casas, who argued in
favor of equal rights to freedom of slavery for all humans
regardless of race or religion.72

In Britain in 1683, the English Bill of Rights (or "An Act

Declaring the Rights and Liberties of the Subject and Settling the
Succession of the Crown") and the Scottish Claim of Right each
made illegal a range of oppressive governmental actions. Two
major revolutions occurred during the 18th century, in the United
States (1776) and in France (1789), leading to the adoption of the
United States Declaration of Independence and the French
Declaration of the Rights of Man and of the Citizen respectively,
both of which established certain legal rights. Additionally, the
Virginia Declaration of Rights of 1776 encoded into law a number
of fundamental civil rights and civil freedoms. The term human

71 Clifton E. Olmstead, History of Religion in the United States, (New York,1960), pp. 99-106.
72 Edwin S. Gaustad, Liberty of Conscience: Roger Williams in North America, (Valley Forge,1999), pp. 28-30.

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 [Link]

rights probably came into use some time between Paine's The
Rights of Man and William Lloyd Garrison's 1831 writings in The
Liberator, in which he stated that he was trying to enlist his
readers in "the great cause of human rights"73.

In the 19th century, human rights became a central

concern over the issue of slavery. A number of reformers, such as
William Wilberforce in Britain, worked towards the abolition of
slavery. This was achieved in the British Empire by the Slave Trade
Act 1807 and the Slavery Abolition Act 1833. In the United States, all
the northern states had abolished the institution of slavery
between 1777 and 1804, although southern states clung tightly to
the "peculiar institution". Conflict and debates over the expansion
of slavery to new territories constituted one of the reasons for the
southern states' secession and the American Civil War. During the
reconstruction period immediately following the war, several
amendments to the United States Constitution were made. 74

Many groups and movements have achieved profound

social changes over the course of the 20 th century in the name of
human rights. In Europe and North America, labour unions
brought about laws granting workers the right to strike,
establishing minimum work conditions and forbidding or
regulating child labour. The women's rights movement succeeded
in gaining for many women the right to vote. National liberation
movements in many countries succeeded in driving out colonial
powers. Movements by long-oppressed racial and religious
minorities succeeded in many parts of the world, among them
the African American Civil Rights Movement, and more recent
diverse identity politics movements, on behalf of women and
minorities in the United States.

The establishment of the International Committee of the

Red Cross, the 1864 Lieber Code and the first of the Geneva
Conventions in 1864 laid the foundations of International

73 Hannum, Hurst, The Concept of Human Rights: International Human Rights: Problems of Law, Policy, and
Practice,( New York,2006), pp. 31–33.
74 Boven.R.,The Human Rights Scripture, Asia Times, Hong Kong,( November 2002.),pp.21-25

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humanitarian law, to be further developed following the two World

Wars. The World Wars, and the huge losses of life and gross
abuses of human rights that took place during them, were a
driving force behind the development of modern human rights
instruments. 75

The League of Nations was established in 1919 at the

negotiations over the Treaty of Versailles following the end of
World War I. The League's goals included disarmament,
preventing war through collective security, settling disputes
between countries through negotiation and diplomacy, and
improving global welfare. Enshrined in its charter was a mandate
to promote many of the rights later included in the Universal
Declaration of Human Rights.

At the 1945 Yalta Conference, the Allied Powers agreed to

create a new body to supplant the League's role; this was to be
the United Nations. The United Nations has played an important
role in international human-rights law since its creation. Following
the World Wars, the United Nations and its members developed
much of the discourse and the bodies of law that now make up
international humanitarian law and international human rights
law.76

CATEGORISATION

The two theories that dominate contemporary human

rights discussion are the interest theory and the will theory.
Interest theory argues that the principal function of human rights
is to protect and promote certain essential human interests, while
will theory attempts to establish the validity of human rights
based on the unique human capacity for freedom77

75 Henkin, Louis,The International Bill of Rights: The Universal Declaration and the Covenants, International
Enforcement of Human Rights,(1987), pp. 6-9.
76 Transnational Corporations Should be Held to Human Rights Standards – UN Expert, UN News Centre,

(October 13, 2003)

77 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human

Rights, UN Sub-Commission on the Promotion and Protection of Human Rights, (January 3, 2008).

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 [Link]

Human rights can be classified and organized in a number

of different ways, at an international level the most common
categorization of human rights has been to split them into civil
and political rights, and economic, social and cultural rights. Civil
and political rights are enshrined in articles 3 to 21 of the Universal
Declaration of Human Rights (UDHR) and in the International
Covenant on Civil and Political Rights (ICCPR). Economic, social
and cultural rights are enshrined in articles 22 to 28 of the
Universal Declaration of Human Rights (UDHR) and in the
International Covenant on Economic, Social and Cultural Rights
(ICESCR).78

Opponents of the indivisibility of human rights argue that

economic, social and cultural rights are fundamentally different
from civil and political rights and require completely different
approaches. Economic, social and cultural rights are argued to
be:

 Positive, meaning that they require active provision of

entitlements by the state (as opposed to the state being
required only to prevent the breach of rights)

 Resource-intensive, meaning that they are expensive and

difficult to provide

 Progressive, meaning that they will take significant time to

implement

 Vague, meaning they cannot be quantitatively measured, and

whether they are adequately provided or not is difficult to
judge

 Ideologically divisive/political, meaning that there is no

consensus on what should and shouldn't be provided as a
right socialist, as opposed to capitalist

 Non-justiciable, meaning that their provision, or the breach of

them, cannot be judged in a court of law

78 Bales, Kevin, New Slavery in the Global Economy, (California, 1999), p. 911.

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 Aspirations or goals, as opposed to real 'legal' rights 79

Similarly civil and political rights are categorized as:

 Negative, meaning the state can protect them simply by

taking no action

 Cost-free

 Immediate, meaning they can be immediately provided if the

state decides to

 Precise, meaning their provision is easy to judge and measure

 Non n ideological/non n political

 Capitalist

 justifiable

 Real 'legal' rights80

Olivia Ball and Paul Gready argue that for both civil and
political rights and economic, social and cultural rights, it is easy
to find examples which do not fit into the above categorization.
Among several others, they highlight the fact that maintaining a
judicial system, a fundamental requirement of the civil right to
due process before the law and other rights relating to judicial
process, is positive, resource-intensive, progressive and vague,
while the social right to housing is precise, justifiable and can be a
real 'legal' right.

Human Rights and The Indian Constitution

The Constitution of the Republic of India which came into

force on 26th January 1950 with 395 Articles and 8 Schedules, is
one of the most elaborate fundamental laws ever adopted. The
Preamble to the Constitution declares India to be a Sovereign,
Socialist, Secular and Democratic Republic. The term 'democratic'

79United Nations Treaty Collection, United Nations, Geneva, October 7, 2010.

80Alfredsson, The Universal Declaration of Human Rights: A Common Standard of Achievement, (New York,1999),
pp. 225-227.

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 [Link]

denotes that the Government gets its authority from the will of the
people. It gives a feeling that they all are equal "irrespective of the
r race, religion, language, sex and culture." The Preamble to the
Constitution pledges justice, social, economic and political, liberty
of thought, expression, belief, faith and worship, equality of status
and of opportunity and fraternity assuring the dignity of the
individual and the unity and integrity of the nation to ail its
citizens.81

Some other Measures of Protection of Human Rights under

Indian Law

[Link] Protection of Civil Rights Act, 1955

2. Suppression of lmmortal Traffic in Women and Girls Act, 1956

3. Maternity Benefit Act, '1961

[Link] Prohibition Act, 1961

5. Equal Remuneration Act, 1976

[Link] Labour (Abolition) Act, 1976

[Link] of Childrm Act, 1938 (Amended in 1985)

8. The Child Labour (Prolibition and Regulation) Act, 1986

[Link] Justice Act, 1986

[Link] Representation of Women (Prohibition) Act, 1986

[Link] (Prevention) Act, ' 987

12. The Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989

13. The National Commission for Women Act, 1990

81 Katherine White. Crisis of Conscience: Reconciling Religious Health Care Providers' Beliefs and Patients' Rights,
Stanford Law Review, (1999),:pp. 1703–1724.

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Conclusion

The Indian Constitution or any other statutory documents

did not define the word ‘Minority’ in the context it is referred in the
contemporary international context. Minorities in India have been
recognized only on the basis of “religion or language” contrary UN
Human rights context of definition of minorities as groups based
on race/ ethnicity/ nationality/ religion or language. The
Preamble as amended in 1976 declares the State to be “secular”
which is of special relevance for the religious minorities declaring
“liberty of thought, expression, belief, faith and worship” and
“equality of status and opportunity”. 82

Though the Constitution of India guarantees equality,

freedom, justice and human dignity to every citizen, and taken
into cognizance the practice of untouchability against the Dalits
and has condemned it and made it punishable. Dalits in India
face multiple problems from the religious dominant groups and
the Governments. Though article 17 of the Indian Constitution
forbids the practice untouchability but caste and untouchability is
reflected in every single religion of Indian subcontinent, no one is
exempt from it. Dalits face multiple discrimination in the name of
caste and it is related to violation of socio, economic, civil and
political rights.83

According to the Indian National Human Rights

Commission, Dalits are still living in segregated settlements, and
work in inhuman conditions. They are not allowed to enter
temples, practice the festivals as other Hindus, they cannot drink
or dine along with the majority Hindus. One can see the recent
conflicts at the time of Hindu festivals. Most of the atrocities
against Hindu Dalits are committed by members of the dominant
castes. The so-called upper castes or the caste Hindus have

82 Halbrook, Stephen P., The Evolution of a Constitutional Right (Independent Studies in Political Economy),
Oakland,(1994), p. 8-10.
83 McAffee, Thomas B.; Michael J. Quinlan "Bringing Forward The Right To Keep And Bear North Carolina

Law Review ,(2005): pp.781-786.

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 [Link]

never come to support Dalits in crisis and those who are accused
are rarely prosecuted

The Indian Constitution is a document rich in human rights

jurisprudence. This is an elaborate charter on human rights ever
framed by any State in the world. Part Ill of the Indian Constitution
may be characterized as the 'Magna Carta' of India. The Judiciary
in India plays a significant role in protecting human rights. The
Indian Courts have now become the courts of the poor and the
struggling masses and left open their portals to the poor, the
ignorant, the illiterates, the downtrodden, the have-nots, the
handicapped and the half-hungry, half-naked countrymen.

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 Self-Help Groups as a tool for

empowerment of women and

poverty eradication: An analysis

of the Kudumbashree

programme in Kerala

Advaita R. Prasad*

* Assistant Professor, Department of Political Science, M.S.M.

College, Kayamkulam, Kerala.

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 ADVAITA R. PRASAD

Abstract

Women and girls constitute half of the World’s population and

research has proven that empowering women accelerates
development in all fields. Women's existing circumstances are
getting worse in developing nations like India. They are viewed as
having no voice within their own family. The harsh reality of the
society is that women often end up sacrificing their life in a four
walled family. Women are still underpaid despite doing greater
work for the family and with no pay. Kerala is a state with a large
number of educated people, both men and women, who have
excellent potential, however we can see that male dominance is
prominent in nearly all activities. The fundamental causes of this
situation are the social and cultural structure of our nation as
well as educated women's reluctance to take on the risk of more
responsible activities, particularly in the entrepreneurial sector.
Eliminating poverty, empowering women, and achieving self-
sufficiency are the core goals of the Kudumbashree programme.
It unlocked a fresh door in the history of development. The
programme seeks to empower them via group effort. Achieving
gender parity in society is made possible by this empowerment
process. It is therefore very intriguing to learn how much this
initiative has contributed to the empowerment of rural women.

Gender equality is not only a fundamental human right, but it also

forms the foundation for a world that is stable, affluent, and
sustainable. A woman has the right to live in dignity, without
having to worry or be in need. The reduction of poverty and
advancement of development are both facilitated by the
empowerment of women. Women who are empowered boost
prospects for the future generations as well as the health and
productivity of entire families and communities. The fact that
gender equality is one of the 17 Sustainable Development Goals
emphasises how important it is. (UN. SDGs). The other seventeen
goals are acknowledged to depend on achieving gender equality.

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But the most ubiquitous and persistent type of inequality is

discrimination against women and girls, which includes gender-
based violence, economic discrimination, disparities in
reproductive health, and damaging traditional practises. During
humanitarian crises, particularly armed conflicts, women, and
girls experience extreme hardship. Numerous organisations and
institutions have been active in encouraging gender-sensitive
data collection, legislative and policy reforms, and projects that
enhance women's health and increase their range of options in
life. Women still have a considerably higher likelihood of being
impoverished and illiterate than males do, even though numerous
international agreements affirm their human rights. Typically, they
have fewer access to education, job, housing, credit, and health
care than males do. They are significantly more likely to
experience domestic abuse and far less likely than men to
participate in politics.

As Jawaharlal Nehru once stated, “in order to awaken the people,

it is the women who has to be awakened first. Once she is on the
move, the household moves, the village moves, the country
moves and thus we build the India tomorrow.” (Kaur 2022).
Empowering women is essential to achieving universal human
rights and sustainable development. Families have a harder time
thriving where women's status is poor due to the prevalence of
large families. When programmes for population growth,
development, and reproductive health focus on women's
educational possibilities, status, and empowerment, they are
more successful. Every family benefit when women are given
more control, and these benefits frequently trickle down to
younger generations. Men's and women's roles in society are
socially constructed, subject to change, and not biologically
established. These responsibilities differ greatly by location and
evolve with time, even though they may be explained as
necessary by culture or religion.

Thus, since independence, the government has placed a high

priority on integrating women into the mainstream of

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development. An enabling environment with necessary policies

and programmes, institutional procedures at various levels, and
enough financial resources has always been attempted to be
developed to empower women and bring them into the
mainstream. In order to assure a steady supply of sufficient
resources for women, the Ministry for Rural Development has
designated a specific amount of funding as the women's
component in each of its programmes.

Women Empowerment as a Concept

Giving power is how we might define empowerment in the

simplest sense. The main concept behind the term empowerment
is power. Power is defined as the ability and resources to shape
one's life in order to achieve desired social, political, and
economic goals or position. Control over material resources,
brainpower, and ideology is what is meant by power. (Girvan
2007) The word "empower" implies "to grant the means, ability, or
authority" in Webster's English Dictionary. Empowerment suggests
a person's attitude and state of mind. It is a process by which
individuals or groups gain a greater sense of mastery or control
over their own lives and the choices that have an impact on them
on a daily basis.

Any method that gives women more autonomy by sharing

pertinent information and giving them control over variables that
affect their performance is referred to as women empowerment.
A fundamental component of empowerment is awareness. To
create self-control, self-sufficiency, and self-reliance as well as
freedom of choice and action, one needs to be aware of their
rights.

Women's empowerment is the process of giving women the

authority they need to recognise their rights and carry out their
obligations to others and to themselves in the most efficient way
possible- the development of personal abilities, decision-making
ability, understanding of rights and privileges, and self-assurance.
In order to challenge and end their own subjugation, women must

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be able to organise themselves, become more self-reliant, assert

their autonomous right to make decisions, and manage
resources. This process is known as women empowerment.
(Mandal 2013).

The power balance between men and women is equal in this

situation, and no party has dominance over the other, which is
another definition of empowerment of women. A key element in
ensuring women's socio-economic security is to raise the
awareness of their rights and responsibilities as well as their
access to resources. Better healthcare for women and children,
equal ownership of productive resources, increased participation
in economic and commercial sectors, awareness of their rights
and responsibilities, raised living standards, and the development
of self-reliance, self-esteem, and self-confidence are all
examples of empowerment. The welfare of women, the fulfilment
of fundamental needs, access to resources, conscientiousness to
achieve gender equity, involvement in decision-making alongside
men, and control, which refers to the highest level of equality and
empowerment, are all included in the framework of
empowerment.

Importance of Women Empowerment

Women's empowerment is one strategy for helping both

disadvantaged and more affluent women realise their value and
potential in a society where men predominate. The majority of
women in today's world have realised and taken full advantage of
their potentials in the best ways possible thanks to education and
family advantages. Unfortunately, there is still a segment of the
population made up of women who lack the education and self-
assurance necessary to establish themselves in the culture that is
predominately male and make their presence felt. Women must
feel worthy, confident, and free to make their own decisions on
both their personal and professional lives. In so many ways,
gender bias is irrational and unjust; it prevents strong people from
not only reaching their potential but also from leading
independent lives free from oppression and fear. Women's

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empowerment aims to boost their self-esteem by giving them

everything within their ability to enable them to recognise the
skills that are hidden within of them and waiting to be discovered.
Only improved knowledge, awareness, and a place to express
oneself freely allow for the correct fostering, refining, and honing
of those skills.

The process of empowering women involves several steps:

1. The first step starts with oneself. A woman grows to feel in

control, in command, and self-sufficient over the material and
innate decisions she must make.

2. In the second step, interpersonal empowerment takes occur.

Here, a woman exerts influence over another woman's ability to
make decisions by coming into contact with her and cooperating
with her.

3. They highlight the objectives for social action and social

transformation in the third step. A community development
programme is created by a team. However, there is also a chance
of a backward linkage. An initiative for community development
may result in both interpersonal and individual empowerment.

Women's emancipation has been happening practically

everywhere in the world, but mainly in liberal democracies, the
level of empowerment, however, differs from area to region, from
country to country, and even from place to place within a country.
(Mandal 2013). Nevertheless, the government places a high
priority on women's empowerment in order to promote the overall
advancement of women. A very successful women
empowerment mechanism has been the presence of Self-Help
Groups (SHGs).

Role of Self-Help Groups in Women Empowerment

In many areas of the nation where poverty and unemployment

are still problems, women's empowerment has attracted
attention, and policymakers have been urged to make decisions

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at various levels of authority. A strategy for empowering

disadvantaged women has been recognised as grouping them
into small groups so they can profit from their joint efforts. Thus,
the development of the Self-Help Group system in India serves as
a platform for women to escape the monotony of their everyday
lives. Their welfare and growth are also goals of this system, which
will assist them in playing the role that fits best with their intrinsic
abilities. In India and other countries, the self-help group system
has been acknowledged as the finest method for empowering
socioeconomically women who live below the poverty line.

Self-Help Group (SHG) is a comprehensive programme for

microbusinesses that addresses all facets of self-employment,
the organisation of the rural poor into self-help groups and the
development of their capacity, the planning of activity clusters,
the development of infrastructure, technology, credit, and
marketing. It places a focus on activity clusters based on resource
availability, worker skill levels, and market accessibility. Self-Help
Groups are informal, peer-run, self-governing groups of persons
from similar socioeconomic backgrounds who want to work
together to accomplish shared goals. (SEWA 2022). Here,
impoverished individuals voluntarily band together to save
whatever money they can out of their earnings, to agree to
mutually contribute to a common fund, and to lend to other
members for the purpose of addressing their immediate and
productive needs.

More women are encouraged to form SHGs and are made aware
of the value of SHGs in empowering them. (Ghose 2022). This aids
in group decision-making for the benefit of the women and also
makes them feel more capable and confident.

After women are exposed to group support and build social

capital through participation in regular meetings, during which
they receive access to resources in the form of credit, training,
loans, or capital, increases in income, savings, and/or loan
repayments, and improvements in skills follow. With the help of
this process, women are able to translate their preferences into

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desired actions, altering their spending and saving habits, and

therefore gaining economic, political, social, and psychological
empowerment.

SHGs are beneficial for three aspects of women's empowerment.

Women who participated in SHGs were, on average, more
economically empowered than non-participants, meaning they
had better access to, ownership of, and control over resources.
(Shireesha 2019). In addition to having greater mobility, female
participants had greater social power than non-participants.
Additionally, SHG members had more influence over decisions
about the size of the family, but only if the SHGs had a training
component. Members of female SHGs were also better able to
engage in decisions affecting community members' rights,
entitlements, and access to resources, which gave them more
political clout. SHGs have a big impact on how the rural economy
is changing. In terms of outreach, social standing, and
sustainability, its unheard-of expansion aids the resurgence of the
weaker segment of society. (Devika 2007). In this context, the
Kudumbashree project in Kerala yields much importance.

Kudumbashree: Its Genesis

The majority of women-only SHGs in India are found in Kerala,

specifically the "Kudumbashree" group. On May 17, 1998, the Kerala
government introduced this initiative for underprivileged women.
Neighbourhood Groups are "Kudumbashree's" grassroots
organisations (NHGs).(Rajagopal 2020). NHGs are what
Kudumbashree uses to operate. It is a grassroots self-help
programme run by underprivileged women. The Kudumbashree
scheme seeks to empower women as a means of eradicating
poverty.

The State Poverty Eradication Mission (SPEM) of the Government

of Kerala is responsible for implementing the poverty eradication
and women's empowerment programme known as
Kudumbashree. The name Kudumbashree means "prosperity of
the family" in Malayalam. The name refers to the Kudumbashree

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Community Network as well as the "Kudumbashree Mission" or

SPEM. The term "Kudumbashree" may refer to either the
Kudumbashree Community Network or the Kudumbashree
Mission, or to both.

Following the advice of a Task Force comprising three individuals

chosen by the State government, Kudumbashree was established
in 1997. The Peoples' Plan Campaign, which aimed to create the
Ninth Plan of the local governments from below through the PRIs,
and the devolution of authority to the Panchayat Raj Institutions
(PRIs) in Kerala were both factors in its establishment.

All adult women may join Kudumbashree, with a cap of one

membership per family. Kudumbashree was recognised in 2011 by
the Ministry of Rural Development (MoRD), Government of India,
as the State Rural Livelihoods Mission (SRLM) under the National
Rural Livelihoods Mission (NRLM). (Ali 2019).

As a programme to end poverty, Kudumbashree was started and

given a deadline. It had its own methods for lifting families out of
poverty. Its efforts were concentrated on eradicating poverty,
which was seen as the prerequisite for women's advancement.
Over time, Kudumbashree Community Network transformed into
a genuine development force that collaborates closely with
regional authorities. Without a question, this in and of itself
contributed to the empowerment of women Kudumbashree
members. Several leaders rose through the ranks of the process
to become influential figures in politics and public society.

Kudumbasree as a Poverty Eradication and Empowerment

programme

An innovative programme for reducing poverty was tested in 1992

with community involvement in seven wards of the Alappuzha
Municipality. In this experiment, urban-based services (UBS) and
urban basic services for the poor (UBSP) programmes were
implemented by a three-tier CBO made up of low-income
women. In this investigation, the poor families were located using
9 "nonmonetary criteria." Later, this woman-centred, inclusive, and

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convergent strategy to combat poverty was known as the

"Alappuzha Model." In 1993, this was expanded upon and tested in
all 36 wards of the Alappuzha Municipality. The Alappuzha Model's
effectiveness convinced the State Government to expand it
across the State's whole urban districts (58 Urban Local Bodies) in
1995. The Kerala Government expanded the "Urban CDS Model"
throughout the entire State under the name "Kudumbashree" in
1998 as a result of the success it had seen. The programme was
gradually expanded to include rural areas (Kudumbashree 2022).

In essence, Kudumbashree is a state-wide community network

that serves Kerala. Neighbourhood Groups (NHGs) serve as
primary level groups, Area Development Societies (ADS) are at
the ward level, and Community Development Societies (CDS) are
at the local government level. It is possibly one of the biggest
women's networks in the entire planet. The community network's
primary characteristics include democratic leadership and
support networks built from the "Kudumbashree family," even
though its main goals are the eradication of poverty and the
empowerment of women.

In three stages between 2000 and 2002, the Kudumbashree

community network was expanded to include the entire State. The
Kudumbashree network had 2,94,436 NHGs attached to 19,489
ADSs and 1064 CDSs as of September 15, 2021, with a total
membership of 45,85,677 women. (Kudumbashree 2022).

Neighbourhood Groups (NHGs): The Kudumbashree community

organisation is composed primarily on neighbourhood groups
(NHGs). A NHG is made up of ten to twenty local women. The
bylaws of Kudumbashree CDS govern the NHGs' membership,
organisation, and duties.

Area Development Society (ADS): The Kudumbashree community

organization's middle layer is called the Area Development
Society (ADS). Local governments' ward level is where ADS is
formed. With the exception of tribal ADSs, which are founded with
special approval from the government, there is a one-to-one

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relationship between wards and ADSs. The ward member is the

ADS's patron in a Gram Panchayat. Ward council members
support the ADSs similarly in Municipalities and Municipal
Corporations. ADS functions as a subcommittee of ward
development committees when they are present. ADS is not a
recognised business entity.

Community Development Societies (CDS): The three-tiered

Kudumbashree community organization's apex entity is the
Community Development Society (CDS). It operates at the local
government level in both urban and rural areas. While there is
normally one CDS for each local government, there may be
several CDSs for metropolitan government institutions that have a
sizable number of NHGs and ADSs.

Through "auxiliary" organisations, Kudumbasree expands its

membership beyond the initial single family. It is interesting that
Kudumbasree, an excellent example of a programme for the
economic empowerment of women, has total savings in its core
neighbourhood components of Rs. 5586.68 crore. (Starly 2022).
Though the Kudumbashree initially concentrated on finance and
savings operations, but over time, it played a significant role in
integrating women who were restricted to their homes into
mainstream society. They have been integral parts of grassroots
planning for the creation of jobs, the eradication of poverty, and
the empowerment of women. A testament to the influence the
Kudumbashree has had on Kerala society is the widespread
mobilisation of women in local activities.

Poverty Eradication and Empowerment techniques employed

by Kudumbashree

a) Complementary Involvement in Family Decision-Making

The degree of social development of women is indicated by their

involvement in household decision-making. Women's economic
independence and their proportional contribution to the family
fund are regarded as important elements that affect their
involvement in family decision-making. Focused group

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discussions revealed that women participating in the

Kudumbashree programme made more decisions for the family
than other women did. Due to traditional standards and the
perception that they shouldn't need to leave their homes, women
were typically kept within their homes. The women had to leave
their houses in order to participate in NHG/SHG meetings and
activities, creating chances for them to acquire social autonomy.
Many women now have the option to travel for various reasons in
addition to attending meetings and NHG/SHG events. This boosts
their ability to visit medical facilities alone, without the company
of male family members, for either themselves or their children.
This results in more empowering behavioural changes.

b) Effect on Earnings

The primary goal of programmes for women's empowerment is to

improve the income of low-income women so that it can be used
to help the entire family and provide specific benefits to each
low-income woman, the family, and the community as a whole.
Poor women now have a place to go and possibilities thanks to
the Kudumbhashree. Savings by underprivileged women helped
them have more control over their finances and access to money
when they needed it. The women are now able to feel safer amid
emergencies thanks to this. Women take pride in having loans
that have allowed them to purchase property and homes in their
names. Women have access to productive assets like land leases
and tree leases through the use of loans for conducting
entrepreneurial activities. Women do ask men's permission before
taking out loans and using them for specific purposes. Self-
employment activities are typically shared by men and women,
yet there are also instances of women engaging in the activity on
their own.

c) Financial Independence

One of the main focuses of Kudumbashree Mission is economic

empowerment, along with social empowerment and women's
empowerment. The Mission's strategy is to encourage the

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economic empowerment of the underprivileged and support

regional economic growth. The Kudumbashree family network is
the focus of numerous of the Mission's economic development
programmes for women and young people. Collective farming,
animal farming, and enterprises are key Kudumbashree
programmes. However, the initial step in local economic growth
has been microfinance, which aids the underprivileged in gaining
access to institutional money.

d) Social Empowerment

The foundation of Kudumbashree's social empowerment

programmes is a concern for inclusivity. These initiatives were
born out of Kudumbashree's recognition of the necessity for
precise measures to include the most vulnerable and
underprivileged people. Initiatives for social empowerment
concentrate on the poor and the mentally ill. In order to stop the
intergenerational transmission of poverty, they also involve
children by educating them about their rights and helping them
grow into groups that take effective action.

e) Political Empowerment

Along with social and economic empowerment, political factors

were considered as well. Women can take responsible roles in a
variety of committees at the three-tier Panchayat system and
urban local councils, participate in other government
organisations, run for office in the Gram Sabha, and have
membership in other government organisations. Kudumbashree
provides numerous opportunities for women to participate in the
programme for the development of women at various levels,
including planning, mobilising resources, implementing, and
monitoring the works.

f) Educational Empowerment via Capability Development

No formal school can match the self-learning process that these

people go through physical experience in mobilising thrift,
disbursing loans, operating bank accounts, approaching banks

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for loans, and engaging in small livelihood activities. This process

enables them to succeed in life and provides an educational
opportunity that no formal school can match. In order to stop the
transmission of poverty from one generation to the next, they are
also given the opportunity to inquire about the educational
progress of their offspring. Another crucial issue that
Kudumbashree focuses on is education. Opportunity for
education, both general and higher education, is denied by
poverty. The socioeconomic analysis of the test-failing students
reveals that the bulk of them come from BPL homes. As a result,
Kudumbashree has helped the CBOs establish remedial
education facilities, plan summer school for high school students,
and make sure that parents attend PTA/Mother PTA meetings.
There are also established special programmes to increase
youths' employability as well as "Finishing schools."

g) Members' capacity building

Deprivation of capability is one of the main reasons of poverty,

according to Kudumbashree. It was obvious that in order for a
programme to reduce poverty to last over the long term, it must
address this problem. According to Kudumbashree, building
capacity is a long process that enables the underprivileged to
become independent decision-makers. From the beginning,
Kudumbashree started a number of initiatives to increase the
capacity of the underprivileged. This comprises community-wide
awareness campaigns, CBO member human resource
development initiatives, skill-building initiatives, entrepreneurial
training programmes, skill upgrades, and performance
improvement initiatives (PIPs) for business owners.

As a result of the above techniques, the Kudumbashree project

has introduced numerous creative programmes for the
empowerment of women. It has improved women's economic
independence and self-reliance.

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Some of the successful activities employed by Kudumbashree are

as follows:

 Setting up Gender Resource Centres

To develop gender equality in governance by organising and
implementing programmes and projects that address gender
concerns, challenge power dynamics, and advance leadership.

 Snehitha - Help Desk for Gender

Under the Kudumbasree mission, Snehitha operates a gender
assistance desk around-the-clock. It seeks to provide assistance
and support to women in society who lack protection.

 Sthree Sakthi Portal

The Sthreesakthi web portal was created with assistance from the
Centre for Development of Advanced Computing (CDAC) and the
Department of Information Technology, Government of India, in
an effort to make the GSLP a fruitful and successful venture.

 Project Padheyam-Food Parcel Distribution

As a part of janakeeyasoothranam, the Kerala development
model, the Thiruvananthapuram district panchayat began and
carried out the Padheyam project, which aims to give food boxes
daily to all those who are hungry. This project's backbone, the
kudumbasree, plays a significant part in its implementation. The
Kudumbasree volunteers prepare and deliver high-quality meals
to the designated beneficiaries in accordance with the list
provided by Grama, District Panchayath.

 Amrutham Nutrimix Consortium

Since 2006, Kudumbashree has worked in conjunction with the
Social Welfare Department to provide Take-Home Rations for
Supplementary Nutrition at the State's Anganwadies.

 Janakeeya Hotel
As part of the Covid control programme, the State Government
has created the "Janakeeya Hotel," a food distribution system with
the aim of offering affordable food to everyone. Kudumbasree is
totally in charge of carrying out the plan. (Starly 2022).

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One of the main aims of Kudumbashree, which was established in

1998, was to end poverty within ten years, or by 2008. With the
help of the Kudumbashree, Kerala has mostly been freed from
poverty. The poverty rate in Kerala's rural and urban areas was
25,76% and 24,59%, respectively, prior to the introduction of PPC
and Kudumbashree. The Rangarajan Committee on Poverty
Estimation estimates that in 2011–12, Kerala's poverty rates fell to
7.3% for rural residents and 5.3% for urban residents, respectively.
The baseline report of the National Multidimensional Poverty
Index, issued by NITI Aayog, indicates that only 0.71% of the
population in Kerala is multidimensionally poor, the lowest
percentage in the nation. All of these indicators suggest that
Kudumbashree has been successful in lowering the poverty rate
over time. (Chathukulam 2022).

Under the leadership of local governments, the Kudumbashree

has steered itself to excellence. Kudumbasree's work has earned it
countless national and international accolades, (Kudumbashree
2022) and as a result, it has become an inspiration for people in
other states and nations. Thus, Kudumbasree continues to serve
as an example for the universe through its remarkable
contribution in women empowerment.

Conclusion

Women are change-makers who promote development, as

demonstrated by Kudumbashree. They are entitled to equal
opportunities and treatment in all respects. The organisation is
perceived differently by different people since Kudumbrashree
has impacted the lives of numerous women. For many people, it is
a source of relief. For others, it is a safe haven where they may
express all of their emotions. Many people have various opinions
regarding it. For many, it serves as a helping hand. In terms of
politics, society, the economy, and culture, it aids in empowering
women. Kudumbashree aids in the process of empowering
women in all these ways, which results in completely empowered
women. Women's confidence and morale soar as a result of

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taking part in several income-generating and developmental

activities.

Kudumbashree, the poverty eradication programme in Kerala,

has matured into a strategic instrument for eradicating poverty
and empowering women. After the execution of many projects
under the Kudumbashree, the standard of living of women and
the entire society began to rise. Kudumbashree continues to play
a significant role in the success of the decentralisation process of
people's planning adopted by the Government of Kerala through
local bodies.

Women who were formerly considered to have no voice and no

influence began to see their own inner strength, power, and
potential for personal development, as well as their involvement
in altering their own futures. For their offspring, their families, and
the wider society, the process of empowerment becomes a
beacon of hope. The history of development is expanded in new
ways. It is possible to draw the conclusion that in the years to
come, the Kudumbashree initiative will significantly alter the lives
of the poorer segments of society.

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Kerala.
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3. Devika, J. & Thampi, Binitha. (2007). Between ‘Empowerment’
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Journal of Gender Studies. 14. 33-60.
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5. Girvan, Norman. 2007. Power Imbalances and Development
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6. Kaur, Ishmeet. 2022. Women Empowerment.
[Link]
content/uploads/2021/06/[Link]
7. Kudumbashree. 2022. [Link]
8. Mandal, Keshab Chandra. (2013). Concept and Types of
Women Empowerment.
[Link]
2013/IFOTS_v9_n2_art3.pdf
9. Minimol M. [Link] Makesh K. G (2012). Empowering rural women
in Kerala: A study on the role of Self Help Groups (SHGs)
International Journal of Sociology and Anthropology Vol. 4(9),
pp. 270-280.
10. Ministry for Rural Development. [Link]
11. Rajagopal, N. 2020. Social Impact of Women SHGs: A Study of
NHGs of ‘Kudumbashree’ in Kerala.
[Link]
12. SEWA. [Link]
through-shgs/
13. Shireesha, E. 2019. Empowerment of Women through Self - Help
Groups. [Link]
14. Starly, O.S. and Karuppiah, C.H. 2022. Role of Kudumbasree in
Women Empowerment in
Kerala.[Link]
wnload/6917/4515/8076#:~:text=Kudumbasree%20has%20play
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15. UN. SDGs. [Link]

161
VIOLATION OF HUMAN RIGHTS ON

ARCHAEOLOGICAL EXCAVATION

WITH SPECIAL REFERENCE TO

PROPERTY RIGHTS

Ms Ivan Nancy*

* Assistant Professor Department of History Stella Maris

College (Autonomous) Chennai- 86.

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 Ms IVAN NANCY

Abstract

Human beings inherit rights irrespective of their nationality, sex,

race, religion, language, ethnicity or any other status called
Human rights. These rights set up standards to recognize and
protect individual dignity. The right to property under the Part III of
fundamental rights was repealed in the 44th Amendment Act of
1978, nevertheless, it guarantees two provisions under which no
property may be taken from a citizen unless there is legal
authority to do so. Like every known Human right, the property
right is an individual’s natural and intrinsic right. However, a
citizen’s right to possess or acquire property often clashes with
the state’s property rights on land acquisition which reflects in the
construction of public transportation, building public
infrastructure, and other public beneficiary works including
archaeological fieldwork. The study of the human past with the
material remains is commonly known as Archaeology.
Archaeologist study and analyze material remains such as
million-year-old fossils, human remains, animal remains, plants,
stone lithics and so on through field work such as excavations
and explorations. However, the conclusive comprehensive study
can be done through archaeological excavation which entails
systematic digging of the selected potential region. The
archaeological sites to be excavated or have already been
excavated contain significant and irreplaceable information
about the past. The challenges like antiquities smuggling and
vandalism on monuments and archaeological sites result in the
rejection of cultural rights that permits people to understand and
identify their cultural roots. However, the field of archaeology and
its fieldwork facilitates cultural rights, it also impacts the private
property rights of the common man. The main objective of the
study is to understand and identify the challenges faced by the
archaeologist in the excavation of culturally potential sites
without disturbing the property rights of the common man. The
study also focuses on the violation of property rights in human
rights as a consequence of archaeological excavation and
explorations.

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Keywords: Human Rights, Property Rights, Archaeology,

Excavations and Cultural Rights

Introduction

Human rights are indispensable rights enjoyed by human beings

and these rights are inherited by birth. Human rights protect the
dignity of a citizen and it also governs the relationship of an
individual with the state and the obligations of the state towards
an individual. The massacres, genocide and other cruelties
toward humanity in the two world wars exposed the absence of
standard Human rights protection and the lack of observant
organizations to safeguard the protected rights. The very first
initiative to institute Human rights globally was the universal
Declaration of Human Rights (UDHR), an attempt to establish a
human-rights to be globally protected. The Universal Declaration
of Human Rights consists of 30 articles, Article 17 of UDHR on the
Right to Property is stated as the natural rights and inherent rights
that allow an individual to own and possess private property.
Rendering to the 44th Amendment to the Indian Constitution, the
Right to property is no more considered a Fundamental Right and
article 31 was eliminated from the Indian Constitution.
Nevertheless, Property Rights still maintain to be a natural right
and adequately protected by the state. Despite this, with the
power of law, the Government can take over private property
under Article 31(1) of the constitution. Archaeology is the study of
human history through Material remains. This field has the
potential of changing a country’s heritage, history and cultural
aspects. Using the available resources, the archaeologist throws
light on the historical facts and events in a descriptive manner.
Archaeological discoveries such as monuments, stone structures,
coins, and artefacts are vital sources of our cultural heritage.
Human rights also have provisions for protecting cultural heritage
to safeguard it from negative influences. The Archaeological sites,
objects, expressions, and knowledge are only deemed worth
preserving for future generations under cultural rights. The article
will discuss the ever-going conflict between property rights and

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cultural rights and ironically both rights are human rights that are
in line with human dignity.

Human Rights

Human rights are the non-discriminatory rights to protect an

individual’s identity and dignity. All Human beings are entitled to
these rights and it is governed by the state to avoid Human
exploitation and ensures no individual is excluded from these
Rights. Individual human rights include social, civil, political,
cultural, economic and collective rights. The landmark
developments of Human rights were set in Britain with the
introduction of the Magna Carta of 1215 and the Habeas Corpus
Act of 1679. However, the implementation of standardized human
rights globally took place after the miseries of two world wars in
which the world had witnessed the worst human massacres and
exploitation including genocide like the Holocaust. The very first
initiative to institute Human rights globally was the universal
Declaration of Human Rights (UDHR) which is considered to be a
milestone in the history of Human Rights. The document was
drafted by representatives from various cultural and legal
credentials and UDHR was proclaimed on 10th December 1948. It is
considered to be a general standard for human rights globally
and an attempt to establish a human-rights to be globally
protected. Furthermore, the core of international law and relations
revolves around Human rights which represent basic values
common to all cultures. Human rights promote universality,
indivisibility, equality, inclusion, participation, accountability,
interdependence and inter-relatedness.

Concept of Property and Property Rights

In the past, property right has always been a controversial and

complicated issue between the ‘haves’ and ‘have-nots’. Even
before the existence of organized forms of governments, the right
to own private property had existed but the rights were not
equally distributed to all. Many Historical events that shook and
changed the world such as the French Revolution and Russian

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revolution fought against the privilege of owning or possessing

surplus private property in modern times. According to French
philosopher John Locke, property rights should be a natural-rights
like life and freedom. Property rights have a social rights trait that
encourages the distribution of social wealth and goods. Like
several social and economic rights such as the right to work, the
right to education, the right to adequate housing, and the right to
enjoy the benefits of scientific progress the property right has
some major implications. The violations of the right to property
include extreme administrative difficulties in the registration of
land, forcible eviction or relocation, denial of water rights and
other essentials for people who used the land for many
generations and relocating people for the development of
government projects without sufficient compensation.

Property Rights are natural rights that permit people to fully own
and employ private land, assets and resources without intrusion
from the government or any other entity or individual. Indian
Constitution, the Right to property is recognized as a Fundamental
right according to Article 31 in Part III which permits a citizen to
fully own or possess or employ private property in the form of
land, assets and resources. However, this article in the Indian
constitution was later repealed with the 44th Amendment to the
Indian Constitution. Article 300A of part XII in the 44 th Amendment
to the Indian constitution established Property rights as a legal
and constitutional right. An individual’s property would be
violated if he/she is ejected from their property by force without
ensuring the due process of law outlined in Article 300 A of the
Constitution. The Supreme court has complete jurisdiction to pass
a special leave or decree on violation of property rights.
Nevertheless, the right is neither properly defined nor adequately
protected for many Indians and several regulatory restrictions
prevent individuals from freely employing their property. The
protection of private property rights influences the country’s
prosperity and allows people to be entrepreneurial. Property rights
can be regulated, for instance, limited, shortened, or modified,
without requiring a constitutional amendment, through ordinary

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 Ms IVAN NANCY

parliamentary legislation. Property rights are significant to

economic growth, and security, empower vulnerable, women’s
right to property, aid in recognizing indigenous rights, eradicate
poverty and prevent informal settlements.

Archaeology and Cultural Rights

Archaeology is a scientific study of the human past through

cultural remains which is descriptive work. The field of
archaeology has a huge impact like changing the cultural history
of one country or a place or a person. For instance, the discovery
of the Indus Valley Civilization has changed the chronology of
India History and pushed it way back to 3500 BC. The objective of
an archaeologist is to reconstruct history with available sources;
hence it is the interpretive description of the human past. In the
recent past, many archaeological discoveries were made by a
common man in unexpected circumstances in the private
property owned by an individual in the form of Coin hoards and
other antiquities. The archaeological fieldwork can be done
through excavation and exploration where the archaeologist
study and analyze the animal remains, plant remains, fossils and
human remain. Furthermore, Archaeology is the only primary
source for the study of pre-history, proto-history, ancient culture
and also the extinct culture. The most significant fieldwork in the
field of archaeology is Excavation which can be classified into
planned, rescue and accidental fieldwork. Analyzing sources
includes studying the earliest stone tools, simple tools to complex
machines, and earliest temples, tombs, cathedrals, pyramids and
houses.

Cultural rights are considered to be a second generation of

human rights. This right is most prominently in the International
Covenant on Economic, Social and Cultural Rights of 1966. It is
known as individual human rights in the scope of culture to
participate in and necessitate the state to preserve and promote
infrastructure of culture through education. Cultural rights are
clearly defined rights that protect cultural heritage and are also
related to individual identity and the development of a

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personality-correlating culture. Generally, the protection of

cultural rights may indirectly protect human rights as the main
objective of the rights is to protect human identity. It is been said
that cultural identity in its dimension of human identity is a facet
of human dignity. Destruction of culture or cultural property with
the ulterior intent to eradicate a group identity is a human rights
violation; for example, Holocaust. Cultural property and cultural
heritage protection concurrently protect human rights as it
assumes the observance of certain values. In its cooperative
dimension, cultural identity contributes to constituting a group
hence a factor causing the rise of the right to self-determination.
As mentioned before, Archaeology is a field that identifies and
analyses the cultural background of a place and its people.
Hence it a cultural right of a group of people or an individual to
study and appreciate their cultural roots through archaeology
which is one of the primary source studying human past and the
cultural heritage of humans.

Archaeological Fieldwork

In the field of archaeology, to analyzing the potential site is done

thorough archaeological exploration and excavation, wherein the
first is used for identifying potential site and the latter is used for
analyzing the one with systematic dig to study the stratigraphy of
the site. The surgical aspect of archaeology is Excavation which
plays a vital role in the discovery of archaeological sites and
considerable portable artefacts or antiquities. Excavations are
carried out with all skilled craftsmanship on the buried landscape
that has been built up for more than a hundred years. Excavations
can be classified based on the purpose of the planned
excavation, rescue excavation, or accidental excavation. The
major aim of Archaeological excavation is to unearth the buried
evidence in an archaeological site. An archaeologist goes
through field training as an ordinary digger, and then as a site
supervisor. Over the years of training, his work includes as a
recorder, surveyor, and photographer, ultimately these skills are
required before anyone can organize and direct an excavation

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 Ms IVAN NANCY

himself. Educational institutes which are associated with

archaeology or History such as museums, universities, and
government archaeological departments mostly organize
training excavations. The tools used in the excavation are a
trowel, penknife, and brush. Different styles of tools and
techniques are employed in the archaeological excavation by the
archaeologist of different kinds of sites. For example, the opening
of the tomb chamber in an Egyptian pyramid is different from the
excavation conducted in western Europe or Tamil Nādu Megalithic
burials.

Often archaeologists also indulge in exploring sites provisionally

by sampling cuts also known as Sondages. This is the method
used by the archaeologist before engaging in large sites such as
Keezhadi, Amirthamangalam, Athirampakkam and so on.
Irrespective of the site and the extent of the excavation
conducted on the site, the tools and techniques are common to
all digs. Frequently the artefacts that are recovered are almost
vague from nonarchaeological aspects of the buried landscape.
The other arduous and paramount task in the field is the
recording of artefacts and antiquities found on the site by word,
diagram, survey, and photography. Occasionally extent of all
excavation is destruction either by housing construction or gravel
digging. Hence, the archaeologist needs to take field notes before
his/her published report becomes a primary archaeological
document. According to the archaeological fieldwork, an
excavator is an interpreter of what they observe or assumed they
saw, and the nearest conclusion can ever get to archaeological
facts as established by excavation. In some cases, excavators
leave such a fine record of their digs so that subsequent
archaeologists can re-create and reinterpret what they saw and
found to avoid the delay of publishing the results of excavation
within a reasonable time. Since it is considered to be a liability
from the point of view of the archaeological method where
excavation is not complete until the printed report is accessible.
Some cases such as quarrying, road construction, clearing the
ground for airports, house construction of houses, public building

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and factories commonly threaten the destruction of

archaeological and potential archaeological sites. There is an
emergency excavation or savage excavation for rescuing
material remains and protecting it from obliteration. For instance,
a savage excavation was conducted in Nagarjuna Konda in
Andhra Pradesh before the construction of the Nagarjuna Sagar
dam, likewise, a rescue excavation was conducted in western
Europe after the partial destruction of cities by bombing during
World War II.

A dispute between Cultural Rights and Property Rights

Through the cultural identity’ reference, both cultural heritage and

cultural rights are linked which serve as communicating conduits
jointly cross-fertilising cultural rights and cultural heritage norms.
Cultural identity is an element of an emerging right to human
dignity as it is also part of an individual’s personality. According to
article 3 of the European Convention on Human Rights, Cultural
identity becomes more and more a separate human right also
under international law. The foundation of cultural heritage
protection might result in an alignment of cultural heritage with
human rights, which will further lead cultural heritage to the level
of subjective rights to cultural heritage. In conclusion, cultural
heritage, through its instituting factor of being pertinent to cultural
identity, is closely associated with the right of people to self-
determination.

The cultural identity of an individual can be described as one of

several factors that might distinguish a group that may be
enabled to the right to self-determination even with its
uncertainties about the holder and the scope of the right.
International human rights have drawn a list of rights that
incidentally or directly protects cultural heritage. These individual
human rights also protect characteristics of cultural heritage and
are specific expressions of human dignity, which might provide an
argument for an emerging individual right to cultural heritage.
Generally raising cultural heritage to such a preeminent position
of a subjective individual right would not be without problems for

170
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the protection of human rights. Certainly, the wider the protection

of culture is drawn, as imitated in a widening of the definition of
culture from absolute universal cultural property to subjective
and more relative or pluralist forms of intangible expressions and
diversity. This will result in difficulties to establish the content of
such a right.

The cultural rights of an individual or a group of people can be

extended to the archaeological excavation which creates a
cultural appreciation and identity of an individual. Though a clash
between archaeologists excavating and the people who own
potential archaeological sites. There are various problems related
to the issue such as trust in the archaeological team, the fear of
losing the land rendering to the cultural remains uncovered from
the land, fear of losing the purpose of land such as fertility of the
land in agriculture and so on. But the organization excavating in
India are restricted to governmental organizations like the
Archeological Survey of India. However, the right to decide to lend
the land for excavation ultimately rests on the owner of the land.
In the circumstance of a major discovery or breakthrough, in
which the site can be turned into a historical destination with a
site museum or so, adequate compensation for the land is to be
paid to the owner. This is a rare occurrence where the
government buys the land by paying good compensation to the
owner. Nevertheless, in the case of archaeological excavation, the
land is borrowed for a certain period to understand the cultural
stages of the places through the study of stratigraphy, after which
the land is returned to the owner. But the question arises whether
the land is intact with its pristine self.

A dispute between human rights such as property rights and

cultural heritage becomes very obvious where there are deeply
ingrained practices that fulfil the definition of cultural heritage but
at the same time violate human rights. There may even be
contradictory and commonly exclusive ways of protecting
cultural heritage, for instance, excavations to preserve cultural
heritage which would have to happen in places of worship of the

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indigenous population. Ironically, the ideology of Human rights

can be manipulated by using the jurisdiction for the restriction of
human rights by those who violate these rights. Furthermore,
Cultural Heritage also is in conflict with and even threatens,
human rights and human rights might oblige to eradicate
‘outdated’ cultural practices and heritage. Thus, the clash leads to
the principle of the arguments around the universal relative
nature of human rights themselves.

Conclusion

Human right deals with the natural rights that are inherited by the
people that are governed by the state. It is a non-discriminatory
right that can be classified as social, civil, political, cultural and
collective rights. These rights are exercised by all humans with
uniformity and inalienability. One of the significant human rights is
Property rights and it is one of the rights that existed for a longer
period. But the distribution of rights is not equal and most of the
revolutions in the past revolved around the idea of uniform
property rights. The exploitation of the wealthy class on the poor
by owning more private lands infuriated the common man which
laid the foundation for almost all of the revolution. Property rights
have always been controversial right but these rights exhibit
social wealth and goods. Property rights allow an individual to
own or possess or yield private property. Likewise, cultural rights
are the second generation that emphasises the right of an
individual on their cultural identity and cultural appreciation.
These cultural rights promote peace and harmony and emphasis
on unity through cultural similarities.

The cultural rights of the people can be promoted through

historical and cultural heritage awareness among the people.
Discipline such as history, archaeology, geology, anthropology
and so on gives more significance to these cultural rights. The
main focus of this study is on the field of archaeology, its cultural
contribution and also the violation of another human right namely
property right. “In a simple direct sense, archaeology is a science
that must be lived, must be” seasoned with humanity”. Dead

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 Ms IVAN NANCY

archaeology is the dried dust that blows,” said Sir Mortimer

Wheeler. Archaeology is the field that provides ample resources
on the history of man and the cultural evolution of a place or
group of people. The archaeological excavation is conducted in
the buried potential sites to unearth the human cultural history.
The main source for conducting this excavation island, this land
can be owned by both private and public authorities. One of the
problematic tasks in the archaeological excavation is finding the
potential site and not being able to get access or permission to
dig the place. The major cause for these situations is a lack of
awareness among the common man. In most cases, once the site
is excavated the land would be returned to the owner whereas
rarely the land would be seized from an owner, even in that case
adequate compensation is paid for the land. This case is a rare
occurrence in which the archaeologist feels the cultural remains
unearthed in the land signify the country’s cultures and needs to
be preserved for the future generation to witness, for example,
Harappa, Amaravati, Keezhadi, etc.

However, the ultimate decision for lending the land to the

archaeologist or the institution for a stipulated period rests upon
the property owner. The fear of losing the land and also the fear of
losing the authentic nature of the land, especially the fertility of
the land led to the rejection of cultural rights. Furthermore, the
denial of the land can result in not knowing an important piece of
our cultural past that can change the history or view of people. To
conclude the violation of property rights in the field of
archaeology rarely takes place. In some cases where the
archaeological results showcase an extraordinary cultural impact
and the evidence of these cultural remains needs to be
preserved, the land was taken over by the government in the light
of throwing cultural awareness and also for promoting cultural
rights for the people. In return, the landowner would be given full
compensation. Nevertheless, the right to keep the property after
archaeological excavation or not lend the property for an
archaeological excavation always lies on the property owner,
without the consent of the property owner, excavation cannot be

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carried out even by a public organization like ASI or the state

department of Archaeology.

References

 Eide, A. The historical significance of the Universal

Declaration, International Social Science Journal 158
(1998).
 Harris, D.J., O'Boyle, M. & Warbrick, C. Law of the European
Convention on Human Rights, Butterworths, London (1995).
 ICOMOS Declaration of ICOMOS Marking the 50th
Anniversary of the Universal Declaration of Human Rights,
Stockholm, 11 September 1998.
 ICOMOS Charter for the Protection and Management of the
Archaeological Heritage ratified by the ICOMOS General
Assembly, Lausanne, Switzerland, October 1990
 Niec, H. (ed.) Cultural Rights and Wrongs, Institute of Art
and Law, UNESCO Publishing, Leicester, Paris (1998).
 Niec, H. Casting the Foundation for the Implementation of
Cultural Rights. In: Niec, H. (ed.) Cultural Rights and Wrongs,
Institute of Art and Law, UNESCO Publishing,
 O'Keefe, P.J. &Prott, L.V. Law and the Cultural Heritage:
Volume I: Discovery and Excavation, Professional Books,
Abingdon (1984).
 O'Keefe, P.J. Maoris claim head International Journal of
Cultural Property 1 (1992).
 O'Keefe, P.J. Trade in Antiquities: Reducing Destruction and
Theft, UNESCO, Archetype Publications, Paris, London (1997).
 O'Keefe, R. The 'Right to take part in cultural life' under
Article 15 of the ICESCR International and Comparative Law
Quarterly 47 (1998).
 Pluciennik, M. Archaeology, archaeologists and 'Europe',
Antiquity 72 (1998).
 Stavenhagen, R. Cultural Rights: A Social Science
Perspective. In: Niec, H. (ed.) Cultural Rights and Wrongs
(Institute of Art and Law, UNESCO Publishing; Leicester,
Paris; 1998)

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 [Link]
property-is-a-human-right-says-sc/[Link]
 [Link]
of-human-rights

175
Tribal transformation through

Global Governance:

Understanding Tensions and

Possibilities

Mamdooh Abdul Fathah*

* Graduate Student, Political Science, School of Social

Sciences, University of Hyderabad.

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 MAMDOOH ABDUL FATHAH

Abstract

Tribal transition in the form of building an inclusive, sustainable

and resilient future with the tribal people does not suffix to policy
initiatives solely based on state-national prerogatives and
entitlements. Even in the case of tribal community in India, the
pace and intricacy of their transition has implication upon how
global trends turn out and is simultaneously influenced by how
global governance legislate on these issues. Despite their cultural
differences, indigenous peoples from around the world share
common problems related to the protection of their rights as
distinct peoples.

Though global governance is a contested term that bring issues

between sovereign nations, UN bodies and international non-
governmental organizations into core, how tribal issues and
challenges in India can benefit from global legislation goes
beyond these tensions. India’s global role in tribal law is at least
plausible, but not always encouraging from the viewpoints of
Sustainable Development Goals that signals higher
decentralization in tribal governance. India has voted in favour of
the 2007 United Nations Declaration on the Rights of Indigenous
People (UNDRIP) that recognizes their right to self-determination
and right against forcible eviction and relocation without
informed consent. However, India is not party to International
Labour Organization (ILO) Convention on Tribal Peoples in 1989
that serves as a framework for empowering their “right to define
their own priorities for development”. It is tempting to note that
this convention incorporates gender equality as a cross-cutting
concern for tribal empowerment and transformation. A distinct
element of global governance in tribal transformation is their
consideration and incorporation of poverty reduction, climate
change action, gender equality and sustainable development as
complimentary issues interwoven with the tribal problem.

This paper attempt to place tribal scenario in India in a larger

canvas of global tribal population and analyses their
transformation through the prism of global governance. Tensions

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between global and national narratives and its implication for

tribal people in India occupy significant portion of this paper.

Introduction

Two centuries ago, tribals lived in the vast majority of the world's
environments. As indicated by the International Fund for
Agricultural Development, native individuals today have the lawful
right to utilize just around 6% of the planet's property and much of
the time their freedoms are incomplete or qualified. Native people
groups live in each locale of the world, yet around 70% of them
live in Asia (IFAD). Regardless of tremendous variety among
Indigenous gatherings all throughout the planet, Indigenous
populations share similar experiences and struggles. Settler
states and governments typically represent settler society, which
is often more populous and powerful than the Indigenous
inhabitants of the country. In this situation, Indigenous
populations have become socio-economically disadvantaged
and vulnerable to discriminatory state policy and even to outright
armed repression. An important impetus for much of colonial and
national policy was an attempt to assimilate indigenous peoples
and adapt them to dominant society through both the military
and more soft pressures. Some assimilation policies, such as the
arrest of children, have similar forms around the world. In Canada,
during the 1960s scoop, indigenous children were taken out of
their homes and given to non-indigenous families. In Australia,
the subjects of similar policies are known as the stolen
generation. In many countries, governments have implemented
indoctrination programs under the guise of education (for
example, the boarding school system in Canada and the
industrial schools in the United States).

In India, tribal alienation can be traced back to the British Raj,

where the state had free control of land and forest resources.
However, in independent India, it continued as mass acquisition of
tribal land in the name of "development project". The difficulties
that Tribals faced have failed to become part of the public
discourse. Tribal transition in the form of building an inclusive,

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 MAMDOOH ABDUL FATHAH

sustainable and resilient future with the tribal people does not
suffix to policy initiatives solely based on state-national
prerogatives and entitlements. Even in the case of tribal
community in India, the pace and intricacy of their transition has
implication upon how global trends turn out and is
simultaneously influenced by how global governance legislate on
these issues.

Though global governance is a contested term that bring issues

between sovereign nations, UN bodies and international non-
governmental organizations into core, how tribal issues and
challenges in India can benefit from global legislation goes
beyond these tensions. A distinct element of global governance in
tribal transformation is their consideration and incorporation of
poverty reduction, climate change action, gender equality and
sustainable development as complimentary issues interwoven
with the tribal problem. The first session will take note of various
international instruments and global governance regimes that
benefit and bring together the cause of Indigenous Peoples. The
session will specifically deal with how indigenous cause in India
and Indian governments stand chafe against, negotiate and
cohabitate global tribal scenario.

Indigenous Peoples at Global Platforms

International law does not have a peculiar definition of indigenous

peoples. However, some factors are widely accepted as
important factors, such as indigenous or self-identification as an
indigenous people, various social, economic and political systems
personal language and culture, strong ties to territory and natural
resources. The term ‘indigenous people’ was adopted by
Aboriginal leaders in the 1970s after the emergence of indigenous
rights movements around the world to identify and unite
communities and represent them in political arena such as the
United Nations. Indigenous was picked over different terms that
pioneers felt reflected specific narratives and power elements, or
had been forced by the colonizers. Given the variety of Indigenous

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experience, no all-around acknowledged definition has been

drafted.

The principal time for Aboriginal international organizations was

in the 1970s. In 1973, the first Arctic People's Conference was held
in Copenhagen, recognizing and addressing the general
problems and rights of the people of the Arctic Circle.
Representatives of Canada, the founding organization of
Greenland (members of Inuit Tapiriit Kanatami and the National
Indian Brotherhood) and Scandinavian Sámi attended the
conference. Since then, cross-border indigenous organizations
have been established around the world. The Indigenous Peoples
of Africa Coordinating Committee is a comprehensive
organization that represents indigenous peoples throughout the
African continent.

The Asian Indigenous Women’s Network brings together

indigenous women from the Asian continent, and the Asia Pacific
Indigenous Youth Network also organizes indigenous youth in
Asia. In 1982, the United Nations Working Group on Indigenous
Peoples was established by indigenous organizations and UN
member states. UNWGIP was made up of five independent
experts and was advised by indigenous volunteers. One of
UNWGIP's goals is to raise international standards for indigenous
peoples' rights, and in 1994 the group drafted the UN Declaration
on the Rights of Indigenous Peoples (UNDRIP). The United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP),
ILO Convention concerning Indigenous and Tribal Peoples in
Independent Countries, 1989 (No. 169), and ILO Convention on the
Rights of Indigenous, Tribal and Semi-Tribal Populations in
Independent Countries, 1957 (No. 107) are international
documents that specifically deals with the rights of indigenous
peoples. In addition, indigenous peoples' rights are protected by
other international human rights documents, including the
International Covenant on Civil and Political Rights (ICCPR);
International Covenant on Economic, Social and Cultural Rights
(ICESCR); the International Convention on the Elimination of All

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Forms of Racial Discrimination (CERD); the Convention on the

Elimination of All Forms of Discrimination against Women
(CEDAW); the International Convention on the Rights of Persons
with Disabilities (CRPD); and the Convention on the Rights of the
Child (CRC). Over time, Indigenous members of the UNWGIP felt
unrepresented in the United Nations and unable to adequately
address the concerns that most affected Indigenous people. In
2000, a new body was established—the U.N. Permanent Forum on
Indigenous Issues (UNPFII)—with a structure designed to allow for
effective Indigenous participation. The UNPFII is an advisory body
that submits recommendations and reports to the U.N. Economic
and Social Council. These international instruments protect the
rights to self-determination; indigenous lands, territories, and
resources that have been traditionally owned, occupied, or used
by indigenous communities; health; education; employment;
housing; and equality and non-discrimination, among others.

The UN Permanent Forum on Indigenous Issues, the Expert

Mechanism on the Rights of Indigenous Peoples, and the Special
Rapporteur on the rights of indigenous peoples are transnational
bodies that overlook compliance with transnational legal norms
as they relate to indigenous peoples, produce recommendations
on indigenous peoples’ rights, or give advice on indigenous
issues. There has been a vigorous and dynamic interface
between indigenous peoples — numbering further than 370
million in some 90 countries — and the United Nations, an
interface which, delicate as it is, has produced at least three
results a) a new mindfulness of indigenous peoples’ interests and
human rights; b) recognition of indigenous peoples’ priceless
contribution to humanity’s artistic diversity and heritage, not least
through their traditional knowledge; and c) a mindfulness of the
need to address the issues of indigenous peoples through
programs, legislation and budgets. Along with the movements for
decolonization and natural rights, as well as the women’s and
environmental movements, the indigenous movement has been
one of the most active civil society interlocutors of the United
Nations since 1945. Indigenous and tribal peoples themselves,

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through efficient engagement in transnational fora, have come

up as active parties in global policy debates on human rights,
development and climate change, claiming their rights and
drawing the world’s attention to their interests and privileges.
Indigenous women partake diligently in civil, local and global
policy debates, including through the International Indigenous
Women’s Forum. Even so, ILO Convention covering Indigenous and
Tribal Peoples in Independent Countries, 1989 (No. 169) is the
single most important and influential international instrument
that has bearing upon tribal and indigenous transformation in the
world. This however doesn't mean that the convention is widely
acknowledged, rather it's one of the least acknowledged ones. In
contrast to the scant ratification of the convention, the UNDRIP,
another UN instrument was adopted with nearly universal support
by the General Assembly in 2007 because unlike C169, it isn't a
binding instrument. This salient difference might help clarify why
countries that voted in support of the UNDRIP haven't ratified C169.
Approval of the UNDRIP doesn't obligate countries to take up and
apply the norms it contains; ratifying C169 does. The ILO should
consider enlisting the ACHPR, as well as indigenous rights and civil
society associations, to encourage fresh ratification of C169 in a
manner akin to the strategy embraced to overcome regional
opposition to the UNDRIP before its acceptance.

ILO and the global legal framework for Indigenous rights

The International Labour Organization, began in 1919, is the only

specialized agency of the United Nations. Its purpose is to "set
labour norms, develop guidelines and develop programs to
advance decent work for all women and men". The ILO is a
tripartite body consisting of representatives chose by the
authorities, employers and workers of each constituent country.
Workers' representatives are generally the National Trade Union
Federation, which allows indigenous peoples to partake in the ILO.

In the 1980s, the ILO began to revise and replace the existing
convention on the rights of indigenous and tribal peoples, C107,
which was adopted in 1957. Drafting Committee honored the rise

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of the global indigenous movement in the 1970s when the basic

assumptions of C107 were challenged. In fact, the rise and impact
of FPIC (free, prior and informed consent) in regulations and
debates over indigenous rights is so severe that it isn't just a legal
figure, but a tribal right and multiculturalism, with its own
language and rules. Thus, the consultation approach has
emerged as the most probable candidate for supplanting the
integrationist approach, which prevailed in transnational law and
domestic legal frameworks throughout the twentieth century and
aimed to conclude the “indigenous problem” by assimilating
aboriginal peoples into the rest of society. Therefore, activists on
the 20th have sought a framework that respects and protects
indigenous peoples and indigenous traditional cultures and
recognizes their right to self-determination. With this in mind, the
ILO amends C107 to reflect a shift in this concept that requires a
redefinition of the legal principles adopted to address the
vulnerabilities of indigenous communities around the world.
Therefore, Convention 169 arose from the ILO's decision to revise
the symbolic legal framework of assimilation, “to shift the
Convention’s emphasis from the objectives of integration to that
of respect for identity of [indigenous] populations and to promote
increased consultation with, and participation by, these peoples
in the decisions affecting them”. This reinterpreted indigenous
peoples as communities worthy of special protection from the
majority of the population and provided a new way to understand
the concerns of those communities. This emphasis reflects the
expansion of the neoliberal "governance paradigm" that explains
the spread of terms such as "participation," "empowerment," and
"consulting" of "stakeholders" in all types of regulation. This is a
controversial process in that the global movement for indigenous
peoples' rights has challenged the governance paradigm for the
past three decades. By advocating the principles of indigenous
self-determination, the movement has influenced international
and national rules on collective rights. Against this background,
the ILO began working on the C169 in 1986.

Since 1989, only 23 countries have ratified the ILO treaty, and ILO

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169 continues to hold those governments accountable for

violations. ILO’s engineering of ratified states takes various forms,
frequently in conflict with independent governments. In numerous
countries, automatically, ratified transnational treaties apply at
the national level. Thus, courts may count on international labour
norms such as the ILO or definitions of standards like as "forced
labour" and "discrimination" to rule when domestic law is
insufficient or silent. In addition to legislation, international
principles similar as these can give guidelines for the
development of public and regional programs such as
employment, labour and family policy. A prominent illustration is
the case of Guatemala, which ratified it in 1996. And in 2014, the
Guatemalan Court of Appeals ruled that "the government must
admire the right to draw informed and free consent when
conceding a mining license to indigenous land". This judgment
was issued after the Sipakapense People’s Council came forward
and stated that the Ministry of Energy and Mines did not consider
the results of a 2005 community consultation before giving a
Canadian mining company a mining license. ILO Convention 169
gives the community the opportunity to hold the government
accountable for the agreed agreement and the support of
international labour agencies. In contrast to the sparse
ratification of C169, UNDRIP was passed by the General Assembly
in 2007 with almost universal support because it is not a binding
tool. This striking difference can explain why the countries that
voted for UNDRIP did not ratify C169. UNDRIP approval does not
require states to adopt and apply the standards contained
therein. Ratification of C169 require so. Therefore, Asian and
African countries that oppose the application of the term
"indigenous" in their territory are likely to avoid ratifying a legally
binding document that allow indigenous peoples or groups that
identify themselves as indigenous to access the special
protections enshrined in the Convention. The ILO should consider
using ACHPR and indigenous rights and civil society organizations
to encourage further ratification of the C169, as well as the
strategies adopted to overcome regional opposition to UNDRIP

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prior to adoption.

India and ILO Ratification

The ILO activities has impacted India, and India has influenced the
ILO. The tripartite Committee on the ILO Convention oversees
aspects of international labour standards, proposals for new
conventions/ ratification of old conventions, and compliance with
the provisions of ratified treaties. The commission has been
inactive for several years, but is now picking up. Like most other
states, in India, legal structures such as wages, working
conditions, social security, social security, protection of
endangered populations, human resource development, equality
and indiscrimination are heavily influenced by the ILO Convention.
I am. And recommendations.

India has signed ILO Convention No. 169 on the Rights of

Indigenous Peoples, but India has not ratified it. The Government
of India has always taken the position that all Indians, including
tribes, are indigenous and our tribes alone cannot be likened with
indigenous peoples. This goes against the first article of the
convention. The definition of the convention is claimed to be
understood in situations where indigenous peoples are
significantly different from colonial settlers, similar as Australia,
New Zealand and the [Link] is also a bigger problem
associated with ambiguous nature who constitutes indigenous
and tribal people at global platforms. Indigenous peoples of Asia
understand their status as a result of" various lifestyles, societies,
customs, community- acquainted social and political institutions"
related to their history and habitat. Thus, indigenous peoples'
perceptions vary within the region. For example, national law in
Nepal, the Philippines and Cambodia is closely aligned with the
internationally recognized description of indigenous peoples as it
takes into account cultural integrity and distinctiveness, common
identity and special connections with the land. India, Bangladesh,
Indonesia and Malaysia are somehow sensible of their tribal
people, but the same does not seem to be the case, as they may
be inconsistent or partly compliant with international ILO

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principles. "Scheduled tribes" are usually informally identified in

India based on factors such as “primitive traits” and
“backwardness.”

Indian authorities have accordingly held note of the matter that

the ratification of Convention 169 would right away open the
doors to offers of partnership from other State parties to the
Convention, despite any assertion/ reservation Government of
India might make on clarification of who compose “indigenous
people”. Another assertion is that Article 7 of C-169 stipulates that
indigenous and tribal people should have the right to choose their
own priorities for the purpose of development and partake in any
developmental operations that may affect them directly. It's felt
that this Article would produce administrative tensions and
pervert the planning process in the country.

Article 32 of the Convention envisages that the Government

should take fitting means for advancing and facilitating
connections and association between the indigenous and tribal
peoples across the border in economic, social, cultural, religious
and environmental platforms. It has been suggested that it may
raise the degree of social and demographic problems by bringing
special rights and impunity demands among various groups of
tribes and indigenous peoples. Given the current security
atmosphere and the ongoing inflow of cross-border illegal
immigrants, the execution of this article will produce greater
social tensions. Another aspect of the problem is that if the
Government of India ratifies the ILO Convention, it'll be subject to
the ILO's oversight mechanism for the fulfilment of the various
provisions of that Convention. Given the nature of the ILO's
tripartism and the varied stakeholders within the Secretariat and
civil society who are presently uniformly involved in the process,
this process may have strong political implications. These along
with many other administrative and political hurdles are often
cited for India’s non-ratification.

Whatever they have been, there has evidently been no

concern/effort to harmonize our domestic safeguards with

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international best practices embedded in the Convention. While

some of the best practices have been embedded through
existing safeguards in our Constitution, in respect of remaining, a
view needs to be taken for Constitutional/legislative changes
which may be appropriate for modern times/context. While we
may accept the non-applicability of the concept of indigenous
people (defined in C-169) in the Indian context, as highlighted by
Ministry of External Affairs, Ministry of Tribal Affairs, Ministry of
Labour & Employment, and also heed to political overtones ,
indigenous citizen concerns and the reporting load arising out of
ratification of C-169, and not subscribing to the Convention too on
such considerations, it is certainly desirable to consider the best
practices emerged from the Convention for their adaption in
relation to the tribals.

Global right-based approach as a corrective mechanism in

India

Lately, UN agencies in India have made the advancement of civil,

cultural and political rights through a right- grounded approach
an inherent part of development assistance. Beyond economic
development, the United Nations in India and aside has used a
rights- based approach, especially to promote human rights.
Indiscrimination is a central part of rights- based progress and
pervades all UN activities in India. Numerous marginalised groups
are the subject of UN programming. Most notable are the
"Scheduled castes" (caste people historically marginalized in
Indian life and particularly supported by the government) and the
"Scheduled tribes" (alienated indigenous groups).) This is a
significant and unsung advance in the fulfilment of human rights,
deliberately and quietly conducted "under radar" by UN agencies.
Countries like India frequently oppose external efforts to promote
the rights of indigenous peoples because efforts like these could
often constitute an incursion of domestic political issues. Using
development aid helps get around the issue of national
sovereignty by enlisting governments in collaborative projects
aimed at less contentious targets of economic development, with

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rights as a by-product. Perhaps most importantly, these

developments imply that the conventional Geneva-and New
York- grounded mechanisms of human rights advancement and
enforcement, grounded on programs of" naming and shaming"
are being supplemented by new, more collaborative approaches.
This promises a better and more effective regime for tribal rights.

India's Universal Periodic Review (UPR) has been produced at

various meetings of the United Nations Human Rights Council.
These gatherings contain recommendations from common
interest groups on the rights of indigenous peoples in India.
Domestic NGOs and human rights groups like as Adivasi Women s
Network (AWN), Naga Peoples Movement for Human Rights
(NPMHR), Chhattisgarh Tribal Peoples Forum (CTPF) and Asia
Indigenous Peoples Pact (AIPP) participated in these reports. Thus,
this review serves as a common platform for civic and
transnational associations to advise on tribal issues in India and
together find solutions. recent reviews are proud to buy numerous
referrals and receive positive and confirming statements from
government officials. The recommendations call on the
government to develop and apply precisely targeted strategies
and plans for ST's socio-economic development, while the
National Commission on Scheduled Tribes oversees functioning
at the national and state ranks and generate tribe-specific health
indicators and compound development indexes. These plans and
guidelines should be developed in line with the implementation of
India's Sustainable Development Goals.

These reviews have urged India to consistently and effectively

implement the 5th and 6th schedules of the Constitution and
PESA Act. This includes expanding the model of the Autonomous
Councils and local governments and considering expanding the
power of the Tribal Councils by including protective and
developmental mechanisms. An important recommendation was
to recognize ILO Convention No. 107, the right of tribal
communities to say "no" to land acquisition, and to access and
manage forests and other resources, in accordance with their

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rights to access and manage forests and other resources in line

with ILO Convention No. 107, the right to Free, Prior and Informed
Consent as provided in UN Declaration on the Rights of
Indigenous Peoples (UNDRIP), and India’s own national legislations
such as Forest Rights Act (FRA), as per the CERD recommendation.
These reviews have always referred to various other international
legal systems in order to provide a framework for national law. For
example, they monitor the availability and efficiency of legal
service authorities, cover legal education programs, raise
awareness of all legal remedies available for women and girls of
the proposed tribes. There are also many obvious rejections of
Indian government’s actions. They often call for repealing FCRA,
which is increasingly being used to impede civil society access to
foreign finances and fails to conform to international human
rights norms and standards, as also noted by the UN Special
Rapporteur. They also called for the removal of obstacles and
loopholes in the implementation of forest rights legislation in
order to make the legislation more effective for indigenous
communities to properly recognize their claims to forest rights. An
important recommendation in recent years has been the revision
of the CAMPA Act compared to the Forest Act to ensure the
approval of tribes and forest dwelling communities to implement
the CAMPA. Others include meaningful consultations with tribal
communities, to develop national action plans to implement UN
Guiding Principles on Business and Human Rights, and to provide
effective relief to communities affected by business activities.
Repealing Armed Forces Special Powers Act (AFSPA), 1958,
conducting free and fair investigation into the abuses of the
Indian forces and holding them accountable for the atrocities are
other measures widely pointed out.

The review also points out India's positive measure on tribal

issues. The sessions commended the Government of India's
High-Level Committee, led by Virginius Xaxa. This Commission
suggested policy initiatives and effective results- grounded
measures to upgrade development indicators and enhance
ST's public services. The report also constantly praises India for

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enforcing the recommendations mentioned. For instance, the

Parliament of India passed Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Amendment Bill in 2015
regarding the effective implementation of Scheduled Castes
and Scheduled Tribal Acts, prevention and justice for violence
against indigenous peoples and delivering strict punishments
for those involved in atrocities against ST. The bill modifies
certain existing classifications and enlisted further crimes,
including, but not limited to, illegal occupation of land held by
ST, assault or sexual exploitation of ST women, and other
provisions regarding functions of public servants and courts

Still, it should be remembered that careful use of the media is

an integral part the impact these recommendations have on
the Government of India. UN officers agree that the media is
an important sympathizer in promoting human rights
standards. However, regarding violations of the law, the UN
officers doesn't immediately sensationalize the issue in the
media in the first place. As UNICEF officials pointed out in areas
where the government is fighting the Marxist rebellion, the
government's" belief and trust" in UN agencies and reports is
usually impaired if the issues are aired before the media
before discussing with the government. Good ties with
government bodies are essential and double-crossing them
by going to the media instead is disastrous. even so, once the
government is notified (often using government data to clear
this), the media can be exploited to hold the government's feet
to the fire.

Even recent reports by non-UN agencies were tailored to work as

a recommendation for the government rather than a sensational
news for Media. As the sale of 41 coal blocks by the Government of
India is underway, Danish- based International Work Group for
Indigenous Affairs and New Delhi based National Campaign
Against Torture and Indigenous Lawyers Association of India in
their report" Bearing the Brunt Impact of Government Response to
COVI19 on Indian Indigenous People asked the Government of

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India to cancel the coal block sale as part of India's Aatma

Nirbhar Bharat Abhiyan (Independent India Mission). The
document called for the pullout of the 2020 Environmental Impact
Assessment Notification and investment of resources allocated
for the Etalin hydropower project in Divan Valley, Arunachal
Pradesh for green energy rather than building a dam. Regarding
not including coal in the COVID19 recovery plan, canceling the
coal extraction commissioned for sale, and developing a specific
COVID19 recovery plan for the indigenous people of the country,
the report similarly asked to execute the Secretary-General's
recommendations.

In addition, the UN Special Rapporteur on a variety of issues such

as housing, labor, the environment and climate, and the Special
Rapporteur on Indigenous Peoples, have constantly raised
problems facing indigenous peoples in India. The Special
Rapporteur on Indigenous Rights strongly recommended that the
human rights of Adivasi be embraced as a top priority for the
pursuing the Narmada Dam Development Project and other
projects of this class. Without the complete and informed consent
of the indigenous peoples involved, true human rights-centric
development as recommended by the General Assembly is
seldom possible. An immediate step recommended is to stop
further rises in reservoir water levels until the unresolved issues of
rehabilitation and resettlement are resolved through productive
dialogue and negotiations between the parties to the satisfaction
of the Adivasis. They suggest that by ratifying ILO Convention No.
169 and taking up the UN Declaration on the Rights of Indigenous
Peoples, India can demonstrate its commitment to the human
rights of Adivasi people. Other ways to integrate Adivasis into the
project were also discussed. Adivasis are thus considered project
partners and their investment is taken to be their natural
resource. As a result of this continued lobbying by tribes and
human rights groups, the Government of India now recognizes the
need to address issues raised by affected communities.

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Corrective mechanisms are not always put in place in a direct

and autocratic manner. Often these take difficult pathways and
special considerations for UN agencies to work as successful and
efficient corrective mechanism for the domestic government. The
implications of this work are plainly reflected in the challenges
that UN personnel face. One recounting anecdote came from a
UNICEF communication specialist, speaking about efforts to rally
communities in support of education. The staffer related of going
through policy documents and replacing the word "mobilization"
with "participation" since mobilization inferred having people
question their government rather than just work alongside it.
While clearly reflecting that the Indian government does have a
commitment to decentralization and citizen participation that's
both legal and practical, the staff member also noted that it's a
delicate process when one is "trying to alter the mindsets and
power structures". Specifically, there's this significance of using
government data. Ground activists mostly don’t go with UN-
collected data because government counterparts will simply say
that their information is prejudiced. Most activists use government
data in ways that their interlocutors cannot ignore or reject. Many
also referred to the Human Development Report as a workable
instrument; in particular, India is currently publishing a state
human development report that can be used to compare state
progress. Telling civil servants that they are lagging behind other
states is a very powerful tool for encouraging action. Working on-
ground with tribal people require many more other strategies
from UN agencies. Promoting rights issues without actually using
the term rights is one of them because the term doesn’t not
always sound comfortable for people on ground; instead, policies
are presented using less sensitive language. UNFPA staff, for
example, explained that while they speak of rights when talking
with their national government counter parts, they avoid the term
when interacting at lower levels of government and at the
grassroots. This is important because, effective working of UN
agencies in tribal matters depend on how deep to the grassroots
could the activists go.

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Another platform for UN agencies is to work as an umbrella

organization for various domestic stakeholders in the tribal issue-
"convening power" of UN agencies. The greatest power of the
United Nations in India depends on its ability to bring together
political parties, especially elected civil servants, civil servants,
civil society support groups, local members of Panchayati and
other grassroots organizations. The United Nations has
considerable goodwill and is honored as an "honest broker" who
can use this status in chasing goals such as community
empowerment. They activities can also be highly sensitive, as
multiple stakeholders have different views on the tensions. For this
to be successful, United Nations personnel need to be truly
familiar with regional issues. They need to be extremely careful to
put together a balanced combination of functions for both the
ruling and opposition parties. In these cases, it was important not
to praise or work closely with the government during the elections
for fear of supporting one party more than others.

Tribal question and bringing together SDG goals

Indigenous peoples in India play essential role in guarding natural

habitats such as biodiversity, forests and lands. They live in
geographic areas and ecosystems that are most exposed to
climate change. These include moist tropical woodlands, alpine,
small islets, coastal areas, dry and semi-arid areas. The 2018 IPCC
report found that traditional indigenous identities are closely
interwoven with natural world. Indigenous economies depend
primarily on natural resources and ecosystems with which they
share complex cultural connections owing to their ways of forest
management and agroecosystems, and the traditions that have
been handed down from generation to generation. Since natural
capital is their most substantial means of production, they could
act as pioneers in enforcing modern economic models grounded
on the principles of a sustainable green economy. Indigenous
peoples' traditional knowledge and cultural approaches are
unique and hugely relevant and valuable for climate change. For
instance, "Climate Smart Agriculture" (CSA) consists of a

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combination of traditional and contemporary tactics. It's one of

the most cited and promoted approaches for mitigating and
conditioning with climate change. Their traditional knowledge
also helps with crop and livelihood diversification, the use of new
materials, seasonal climate prediction, and community-
grounded disaster risk management. Australia's Aborigines, for
example, are reported to have had significant knowledge of the
most extensive wildfire prevention these days. They employ a
mosaic-like cool fire technology that ignites when a small patch
of low- intensity fire cools. Given their substantial contribution to
climate control and environmental conservation, the Indian
government is prompted to look into areas of contention and
offer them comfort and required support. Access to decent work
can further enable indigenous peoples to harness their capability
as change agents in poverty reduction, sustainable development,
and climate change action. Most of the global governance
measures in the field of tribal empowerment, including the SDG
goals takes in to account climate change and conservation of
natural habitat as medium of transformation. Bringing together
India’s Panchasheel goals with those targets will bring further
progress to tribal problem.

A particular aspect of discrimination against indigenous and

tribal people is the narrow coverage of official statistical data.
This lack of data also means that the impact of ongoing changes
affecting indigenous and tribal communities cannot be duly
measured and understood. The 2030 Agenda also emphasizes
the need to integrate the obtainability of disintegrated socio-
economic data. It has been blamed that the SDGs didn't
comprehensively consider the challenges of indigenous peoples,
as only two of the 169 SDG goals were notably reserved for
indigenous peoples. Nonetheless, in compliance with the goals of
the SDGs, there's global interest among governments, non-
governmental organizations in indigenous groups. For example,
focusing on investment in women's health, education and
empowerment adequately reflects the evidence base that shows
benefits for the survival of children and the general well- being of

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their communities. A systematic analysis shows that the

expansion of female education in sub-Saharan Africa means that
child mortality has not increased during HIV epidemic. From this
conclusion, improving the health and well- being of indigenous
women and concentrating on empowering them is key to “closing
the gap” and improving the survival of the indigenous community
as a whole. In recent times, the 2030 Agenda for Sustainable
Development has evolved into a platform for indigenous peoples
to participate in the follow-up to the 2030 Agenda for Sustainable
Development espoused by UN member countries in 2015.

The 2030 Agenda for Sustainable Development and its

Sustainable Development Goals (SDGs) render a momentous and
unique opportunity to ensure that indigenous and tribal people
aren't left behind. The 2030 Agenda recognizes that development
programs to eradicate poverty must counter inequality along
gender and racial boundaries by simultaneously pursuing
economic growth and regard for rights. In order to take
advantage of this occasion, it's imperative to pay particular
attention to the situation, participation and contributions of
indigenous and tribal peoples and incorporate them into the
SDGs achievement strategy. The coming decade of 2030 will be
decisive for a sustained reversal of existing patterns of
disadvantage and exclusion.

Conclusion

Scholars frequently argue in legal discussion that "the state is

retreating". Traditional territorial divisions among state, local, and
international levels do not reflect the dynamic interaction among
actors at all levels when referring to global tribal movements and
policies in the India which is more or less dominated by Indian
governments standard tribal mechanisms. In seeking answers to
the tribal problems, community- level stakeholders organize local
concerns, standards and ideas, yet work in tandem with global
partners for goals at both levels. The ability of actors to act in
these global governance networks is based on their normative
foundations and ideas. Contrary to network theories that create

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unidimensional views of the formations of global governance

networks, I contend that interactions between global governance
and tribal cause and law in India are not without conflict and
negotiation. Open discussion, criticism, and contested negotiation
are standard mechanisms of the policies that these transnational
interactions between UN agencies, activists, Indian society and
domestic laws ultimately produce. Transnational norms,
espoused by indigenous communities and used by indigenous
opposition groups, are pressing the Government of India to
change its policies towards indigenous peoples.

Our analysis of global governance on indigenous issues have

found that there has been a shift to right-based approach by UN
agencies working under the shade of sovereign countries, which
has its own variant in India. This is clearly an important and
uncelebrated advance in the implementation of human rights, a
consciously done and quietly "under the radar" activity by UN
agencies. Further, consultation approach has replaced the
integrationist approach on tribal issues, which prevailed in
international law throughout the twentieth century and purported
to resolve the “indigenous problem” by assimilating aboriginal
peoples into the rest of society. Global governance now calls for a
framework that respected and protected the traditional cultures
of indigenous and tribal peoples and recognized their right to
self-determination.

It is found that an opportunity for sovereign countries like India to

work in tandem with global indigenous governance is to work
towards SDG goals as a meta-framework for revising existing
patterns of disadvantage and exclusion for tribal India. A
comprehensive review of global corrective mechanisms in Indian
tribal scenario shows that traditional mechanisms for promoting
and implementing human rights in Geneva and New York under
the "naming and shaming" policy are replaced by new a new
method based on seeking cooperation and complemented by a
more collaborative efforts between global and domestic agents.
This promises a better and more effective regime for tribal rights.

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Involvement of more activist and tribal elements in this process

will have results that Khagram Ali found with regard to global
governance networks i.e., a shift away from government-centric
interstate regimes dominating human rights field, especially
those of tribal people.

References

1. Bob Jessop, The Rise of Governance and the Risks of

Failure: The Case of Economic Development, 155 INT’L SOC. SCI. J.
29, 29 (1998)
2. Centre for Education and Communication (CEC) Labour,
Environment and Globalisation: Social Clause in Multilateral Trade
Agreements-A Sourthern Response, New Delhi (1996)
3. Dowie, Mark. “Conservation Refugees”, in Paradigm Wars:
Indigenous Peoples’ Resistance to Globalization, ed. Jerry Mander
and Victoria Tauli-Corpuz. A special Report of the International
Forum on Globalization Committee on Indigenous Peoples. (San
Francisco, CA.: Sierra Club Book 2006)
4. Hoe, L.A., Human Rights, International Labour Standards
and Trade in a Globalised Economy: An Assessment of the
Economic, Moral and Political Dimensions, (Dissertation at
University of Birmingham, Birmingham 1995)
5. ILO, Program and Budget of the Biennium 1986/1987: 60th
Financial Period 50.16 (1985).
6. Indigenous Peoples’ Rights, 2010 International Law
Association Report, [Link]
[Link]/en/committees/[Link]/cid/1024 (last visited Oct 19)
7. Joel E. Oestreich, The United Nations and the Rights-based
Approach to Development in India, Vol Num. 20, Global
Governance, Jan.–Mar. 2014, No. 1, pp 77-94 (Jan.–Mar. 2014)
8. Khagram, Sanjeev, and Saleem H. Ali. Transnational
Transformations: From Government-centri Interstate Regimes to
Cross-sectoral Multi-level Networks of Global Governance. In The
Crisis of Global Environmental Governance: Towards a New
Political Economy of Sustainability, edited by Jacob Park, Ken
Conca, and Matthias Finger,132–162. (London: Routledge

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Publishers 2008)
9. LUIS RODRÍGUEZ-PIÑERO, INDIGENOUS PEOPLES,
POSTCOLONIALISM, INTERNATIONAL LAW: THE ILO REGIME 299
(2005).
10. NATIONAL COMMISSION FOR SCHEDULED TRIBES, SPECIAL
REPORT GOOD GOVERNANCE FOR TRIBAL DEVELOPMENT AND
ADMINISTRATION MAY 2012
11. Overseas Development Institute, What Can We Do with a
Rights-based Approach to Development? (London: Overseas
Development Institute, 1999)
12. Report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous people,
James Anaya, Human Rights Council, Eighteenth session,
Promotion and Protection of all Human Rights, Civil, Political,
Economic, Social and Cultural Rights, including the Right to
Development. Anaya, “Promotion and Protection of All Human
Rights: The Situation of the Sami People in the Sápmi Region of
Norway, Sweden and Finland,” January 12, 2011,
A/HRC/18/XX/Add.Y,
[Link]
[Link] (Last visited Oct 12 2021)
13. S. James Anaya and Siegfried Wiessner, “The UN
Declaration on the Rights of Indigenous Peoples: Towards Re-
empowerment”
[Link]
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14. United Nations Department of Economic and Social Affairs.
State of the world’s indigenous peoples: indigenous peoples’
access to health services. 2016.
[Link]
ntent/uploads/sites/19/2018/03/TheState-of-The-World s-
Indigenous -[Link]. (Last visited Oct 20, 2021)
15. United Nations Documents Related to Housing and Land
Rights in India, Housing and Land Rights Network, 2016(New Delhi)
16. United Nations. Sustainable development goals. United
Nations.

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[Link]
development-goals / (last visited 0ct 6, 2021)
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v/unpfii/documents/DRIPS [Link]. (last visited Oct 15 2021)

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 A CRYTICAL ANALYSIS OF THE

SUPREME COURT CASES IN INDIA

ON DEATH PENALTY

Tanveen Kaur*

* Student, Christ (Deemed to be University) Lavasa, Pune.

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 TANVEEN KAUR

ABSTRACT-

Capital Punishment is as fundamentally wrong as a cure for

crime As charity is wrong as a cure for poverty.

-Henry Ford

We live in a society where we hear about the crimes unceasingly.

Where ‘punishment’ becomes the only tool to deter the crime. But
not every crime and criminal can be punished with capital
punishments. Crimes which are served with the punishment of
death penalty are referred to as capital punishments. Our laws
believe in the process of reformation or retribution. In earlier time
the King believed in extreme tyranny, for even a mild crime the
punishment was of severe nature. Death penalty was also a
common punishment during 1890’s. Section 368 of The Criminal
Procedure Code of India grants the High Courts the authority to
confirm a death sentence.

The Code of Criminal Procedure 1898 embodied in section 367 (5)

that-

“If the accused is convicted of an offence punishable with death

and the Court sentences him to any punishment other than
death, the court shall in its judgement state the reason why
sentence of death was not passed.”

INTRODUCTION-

Death penalty means taking away the life of a person by judicial

pronouncement in accordance with the procedure established by
law.84 After the amendment of code of criminal procedure in 1955,
this provision mentioned above was deleted. Later this code
codified that no death sentence will be awarded to the convict
who are minor i.e., below the age of 18 years or if the convict is

84 Pawan Jain, Supreme Court on Death Penalty 1-2 (First

Edition 2016). 3 Indian Penal Code 1860, No.- 45, Acts of
Parliament 1860.

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pregnant at the time of giving death sentence. According to the

Indian Penal Code of 1860, the death penalty is imposed for a
number of crimes. Criminal conspiracy (Section 120B), murder
(Section 302), waging or trying to wage war against the
Government of India (Section 121), abetment of a mutiny (Section
132), dacoity with murder (Section 396), and other offences are
punishable by death3.

VALIDITY OF DEATH SENTENCE-

The question of abolition of death sentence was raised by Shri

Gaya Prasad Singh who introduced the bill regarding this. Later
after independence in the year 1956 Shri Mukand Lal Agarwal a
congress member introduced a first bill to abolish death penalty.
This penalty is given for rarest of rare cases. This validity was first
raised in the case of Jagmohan Singh’s case 85 in the Apex court.
The accused was convicted under Section 302 86 for the murder of
Chottey Singh. Many arguments were brought up questioning the
validity of Article 14,19 and 21 of Indian Constitution 87. In this case
the Supreme Court held that Right to life is not violated while
giving the death sentence as long as the penalty or punishment
given is in accordance to laws and public policy. It was also
observed that the court is declaring the punishment with regard
to foreseeing the facts and circumstances so there comes no
question of challenging the argument on the basis of Article 14.
This case was decided prior to insertion of Section 354(3)88.
Though the constitutional validity of the death sentence was
upheld in the said case, yet the circumstances wherein it should
have been awarded was not discussed and elaborated. Later it
was seen that it was all in hands of court to either award death
penalty or life imprisonment for the offence of murder.

Later in 1978 many cases popped up and Apex court was

questioned as to in which case capital punishment has to be

85 Jagmohan Singh vs. State of Uttar Pradesh AIR 1973 SC 947.

86 Indian Penal Code 1860, No.- 45, Acts of Parliament 1860.
87 Right to Equality, Right to Freedom and Expression and Right to Life.
88 Code of Criminal Procedure, 1973, No.- 2, Act of

Parliament 1974. 8 Mithu vs. State of Punjab AIR 1983

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pronounced on the accused and why not in other cases. The

main thing that arose was that Section 302 of IPC 1860 permits
death penalty. Whereas section 354(3) of Criminal Procedure
Code 1973 provides discretionary powers. Coming over to the
judgements given by the apex court it was seen that ‘Special
reasons’ must vindicate the sentence and so must be related to
why the murderer must be hanged and why life imprisonment will
not suffice. The Court also held that reasons must relate not to the
crime as such but to the criminal.

Another case came up where a five-Judge Bench of the Supreme

Court struck down Section 303 of the Indian Penal Code, 1860
holding that the provision violated Articles 14 and 21 of the
Constitution. As per Section 303, if a person undergoing life
imprisonment committed murder, they would mandatorily be
sentenced to death. The Supreme Court held that the provision
drew an arbitrary distinction between persons committing
murder and persons undergoing life imprisonment who
committed murder. Here it is important to note that sentence of
8

death shall not be pronounced against the person who is under 18

years of age when he committed a crime. Secondly, the sentence
of death shall not be passed on pregnant women, as we have
witnessed this in Rajiv Gandhi’s assassination.

JUSTICE MORE COMPLETE-

In a judgement delivered by the Supreme Court, in Manoj & Ors vs.

State of MP89, embarked on a significant attempt to reform the
administration of death penalty. Though the constitutional validity
of the punishment was not an issue in this case, the judgement by
Justices UU Lalit, Ravindra Bhat and Bela Trivedi will occupy a
prominent place in India’s criminal justice jurisprudence for its
reflections on the state of the death penalty in the country and its
attempt to fix a broken sentencing system. However, achieving
meaningful compliance across all levels of the judiciary will be
significant challenge and so will translating these procedural

89 Criminal Appeal no. 248-250/2015.

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reforms into substantive fairness in determining punishment.

There has a long judicial crisis in death penalty sentencing on
account of unprincipled sentencing, arbitrariness and worrying
levels of subjectivity. The crisis has been acknowledged by the
Supreme Court, the Law Commission of India, research scholars
and civil society groups. At the heart of this concern is the fact
that death penalty sentencing has been by and large crime
centric. This approach has flown in the face of the requirements
imposed on sentencing judges by the Supreme Court in Bachan
Singh (1980). In essence, the ruling of the five- judge bench in this
case laid down framework to be followed by judges who have to
choose between life imprisonment and death sentence. This
framework made it binding for the sentencing judges to take into
account factors relating to both the crime and accused and
assign them appropriate weight. Judges couldn’t decide to
impose the death penalty only on the basis of the crime. The
background of the accused, the personal circumstances, mental
health and age were considered while sentencing a accused.
Judges were required to weigh mitigating and aggravating
factors to ascertain if a case was fit for the death sentence and
also determine if the option of life imprisonment was
‘unquestionably foreclosed’. The four decades since Bachan Singh
have shown us that this framework has been followed more in
breach. The truth of the matter is that there is utter confusion
across the level of judiciary on the requirement of this framework
and its implementations. An important reason for this breakdown
is that factor relating to the crime- the nature of crime and its
brutality- are of ten dominant considerations, and there is barely
any consideration of mitigating factors. There hasbeen very little
discussion on bringing the socioeconomic profile of death row
prisoners as a mitigating factor into the court room. There is now
empirical evidence that a vast majority of India’s death row
prisoners are extremely poor and often do not receive competent
legal representation. In last four decades, we have tried to
implement the Bachan Singh framework without really

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addressing the measures that need to be put in place to gather

the information required to give the effect to the verdict.

The significance of recent judgement, authored by Justice

Ravindra Bhat, is that it takes this problem head-on. It identifies
the lacuna as an explicit concern, the stage and consequences
that flow from such a vital gap, and suggest measures to plug it.
The judgement is clear that certain procedural thresholds must
be met for sentencing to be fair and explicitly rejects the idea that
death sentences can be determined solely on crime-based
consideration. A striking part of judgement is its commitment to
recognising reformation as an integral to the Indian Criminal
Justice system, especially death penalty sentencing. It asks the
state and sentencing judges to establish that there is no
probability of reformation of the accused. The verdict recognises
that the aspects of the accused’s life, both pre offence and post
offence imprison, are relevant. As practical steps in this process,
the judgement asks courts to call for reports from the probation
officer as well as prison and independent mental health experts.
The state too must present material that speaks to a wide range
of factors. The right of the accused to present mitigating factors
and reboot the state, if necessary, is also recognised.

Along with the Suo moto writ petition on the collection of

sentencing information in death sentence cases that the bench
headed by Justice Lalit is currently ceased off, there is now a
concerted effort to plug procedural gaps in death penalty
sentencing. It is obvious that the manner in which death penalty
sentencing is being carried out across different level of judiciary is
constitutionally unsustainable. These glaring sentencing errors
have also been pointed out in series of death sentence
judgements from the benches headed by Justice L Nageswara
Rao in t Supreme Court. The attempts to bring out procedural
coherence and integrity will face significant challenges in the trial
courts and the High Courts and it is far from certain that these
reforms will be meaningfully implemented in those forums. Apart
from this issue of implementation, even if detailed and high-

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quality sentencing information is to come in our courtrooms, a

bigger challenge awaits. The judicial treatment of sentencing
information is a pandora’s box that will inevitably have to be
opened. The Supreme Court will have to provide a rigorous
normative basis for consideration of these factors. In the absence
of such foundations, death penalty sentencing will continue to be
unprincipled and sentencing judges are not going to understand
the need for this wide range of sentencing information. And that
might will be a question that public at large might ask, why
should we care about all these sentencing factors concerning the
accused? The answer to that lies in crucial discussions on moral
culpability for our actions in psychology and philosophy. There is
now overwhelming evidence from psychology that criminality
cannot just be reduced to terrible decisions by individuals in
exercise of there free will. All our actions are a result of a complex
web of biological, psychological, and the social factors and that
understanding has a very significant bearing on discussions on
criminality and punishment.90

LANDMARK JUDGEMENTS-

Death penalty cannot be awarded for a small offence because

laws cannot come in conflict with the human rights which every
human has a right to access. But sometimes the cases that come
to the court of law are too heinous that they make the citizens
rebellious enough that if proper punishment is not awarded
people will lose faith in justice system. Take for example the
Nirbhaya case91, also referred to as the Delhi Gang Rape, gained
attention in the media and on social media. The rape victim
Nirbhaya and a male companion boarded a bus headed towards
Dwarka. Six people, including the bus driver, were on board. When
other passengers began interrogating the couple about their
relationships and the bus driver veered off the expected path, the
pair began to have doubts about the other passengers. The

90SK Malik, Justice more complete, The Indian Express 17th June 2022 at pg-9
91Soumya Swaroop, Death Penalty- Nirbhaya Case, Legal Humming (10th October 2020),
[Link]

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passengers began hitting the male companion and also knocked

him out with the iron rod as the couple reacted to the driver's
explanation of the detour from the route. Nirbhaya was pulled to
the bus's back. The attacker beat her severely and committed a
rape on her. Within a day, the Delhi Police had captured all six
suspects. Just before perpetrating this horrible crime, these
suspects had robbed a carpenter named Ram Adhar. The
suspects were put on trial after the charge sheet was filed. One of
the suspects, Ram Singh, killed himself in his cell after the victims
died out of guilt.

One of the suspects was a child, and his birth certificate and
academic records provided evidence that he was a minor. The
suspect will be tried under the Juvenile Justice Act of 2000,
according to the Juvenile Justice Board. The accused was found
guilty and given a sentence of 3 years in jail, including 8 months
spent in detention while the case was being tried. The remaining
accused were put on trial for rape, kidnapping, murder, and
evidence destruction. They were found guilty of rape, murder,
strange offences, and evidence destruction after being tried in a
fast-track court. The death penalty was imposed on the
defendants. The High Court received an appeal from the
defendants. Due to the severity of the crime and the numerous
protests held in the society, the Hon'ble High Court determined
that the accused were guilty and that the case qualified as one of
the rarest of rare cases. The Fast Track Court's ruling was upheld
by the High Court. The accused appealed the decision to the
Honourable Supreme Court because they were unhappy with the
verdict. Later they were issued death warrants and the people
were quite happy with the judgement now.

The next landmark case in which capital punishment was

awarded is Dhananjay Chatterjee’s case. 92 In this case the
accused called Dhananjay Chatterjee alias Dhana was a security
guard who was convicted for rape and murder of 18 year’s school
going girl. This case was termed as ‘rarest of rare case’ in which

92 Dhananjay Chatterjee Alias Dhana vs. State of W.B. (1994 (1) ALT Cri 388

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court has awarded him capital punishment. It is significant to

note that the last words of the accused were ‘I am innocent’. This
created a lot of controversies and there was lot of criticism, as to
whether the innocent was hanged till death. Coming down to the
detail facts of the case, Dhananjay Chatterjee was an employee
of security and investigating bureau and he was posted as a
security guard in Anand apartments Calcutta. The victim was
Hetal Parekh who was a school going girl and often complained
on several occasions that the security guard used to tease her
and frequently used to ask her to accompany with him for a
movie. These incidents were reported to the employer multiple
times. In furtherance of that, the security guard Dhananjay
Chatterjee alias Dhana was transferred to another building by the
employer. But the accused continued to carry on his duties in the
same Anand apartment. On 5th march 1990, the victims father left
the house for office and brother left for college and the victim for
her school. She returned from school in the afternoon around 1
Pm. In the mean time her mother also left for a nearby temple in
the evening around 6 Pm, leaving the victim alone at home. In the
meantime, taking the advantage of situation the accused enter
the victim’s apartment, repeatedly raped and killed her. When the
victim’s mother returned home, she repeatedly rang the bell but
there was no answer. She raised the alarm and soon the door was
broken. The victim was found in her bedroom in bloodied state.
Her clothes were torned and there were marks of violence on her
body parts. When the police did the investigation and when post-
mortem was done the reason for death was confirmed as
strangulation. It is pertinent to note that in this rarest of rare case
there was no eye witness of the rape and murder and the
conviction was solely based on circumstantial evidence and few
evidences recovered from the place of accused. The trial court
gave the verdict of capital punishment and this sentence was
also confirmed by High court and Supreme Court as well. In this
case the major defence taken by the accused was ‘Plea of Alibi’.
The appellant stated that he was at his village for his brother’s
marriage ceremony. But this plea was rejected because the Alibi

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in question was after the incident, perhaps there were many

witnesses who corroborated the presence of accused at the
victim’s apartment. After serving 14 years in a prison the accused
was hanged in 2004. According to Nata Mullic the last words
uttered by accused were “Ami Nirdosh”93, which means “I am
Innocent”.

SUPREME COURT OF INDIA’S RECENT APPROACH ON DEATH

PENALTY-

Supreme Court has already reserved a category of ‘rarest of rare

case’ where this death penalty is awarded in order to create a
deterrent effect. But our legal system believes in reforming the
individuals. Keeping in mind the Fundamental Right of Article 21 in
Indian Constitution provided to every citizen and non-citizen and
the basic human rights which every person is entitled to, the laws
cannot be too harsh on the accused. The basic principle kept in
mind is that we need to reform an individual not punish him
because punishment might not every time lead to positive
effects. It might make the convict more rebellious and then he
might become more dangerous to the society as a whole. So, the
reformative theory of punishment is taken care of while giving
judgements. Here we have seen that the recent incident of
Hyderabad rape case, in which the so-called accused were
encountered by the police at large. In spite of taking such rigorous
recourse, the instances of rape and violence are not at all
reduced, in fact they are increased. So, the author wishes to point
out that capital punishment will not always work. A reformative
measure should be taken into consideration while dealing with
the rarest of rare cases.

Akash Krishnan, The case of Dhananjay Chatterjee: a noteworthy lesson for the judiciary, (18th
93

November 2021), [Link]

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CONCLUSION-

Here the topic Capital punishment is a controversial one not only

in India but in various parts of the world. Few countries allow
capital punishment for certain specific offences, while few nations
have completely abolished the capital punishment. While
concluding the writing the author is trying to convey that,
abolition of complete death penalty is not acceptable. Further
author is of point of view that death penalty should be there
because the accused should bear the same pain which they had
inflicted to the victim, but it should be for rarest of rare case like
Nirbhaya case, Dhananjay Chatterjee’s case. So, death penalty
should not be abolished because it serves as a deterrent effect,
which means it sets an example for other criminals and affects
social change. The society can be made safer by the death
penalty since those who have been convicted of a crime are
unable to commit another one. The deterrent theory of
punishment also signifies deterrent impact of certain
punishments on the society at large. It is to be noted that for
heinous crimes like the Rape, brutal murder, acid throwing cases
etc the death penalty is highly recommended. In India various
statistical data shows that the instances of heinous crimes are
increasing day by day. In such a situation it is to be noted that
death penalty is highly recommended at large. In Indian context
the death penalty is not perfectly recommended because the
social and economical conditions of this nation don’t favour so. In
the third world country like India where people struggle for bread
and butter how we can apply the reformative theory when there is
fight for survival itself. On the contrary few European countries
those who have abolished capital punishments have far better
socio-economic conditions than ours. So, the author strongly
recommends abolition of capital punishment in general. But in
rarest of rare case and the cases which crosses all the brutalities
and are extremely heinous, in these circumstances the author
favours capital punishment.

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