The Rights of the Schedule Tribes

The Rights of the Schedule Tribes vis-a-vis Forest Laws

Dr.Petikam.Sailaja

Tribe is a social gathering of a typical type of people having vast differentiations with the rural and urban people. Tribes in the traditional sense are backward people who live aloof from the rest of people. Lewies Gillin and Phillip Gillin have said “Tribe is a group of local communities living in a common area, speaking a common dialect and having a common culture. There is a distinction between Tribe and Caste.[1] The whole tribal groups in India can be divided into four major divisions based on language, territory, occupation and physical features.[2]

The Indian Constitution accords a special status for STs, particularly advocating positive discrimination in favour of the ST communities in matter of education and employment. Notwithstanding this, and many other affirmative efforts made in the social and economic dimensions between STs and general population. Therefore, the Scheduled Tribes deserve an exclusive niche in development efforts to achieve the goal of inclusive growth. For instance if you take their rights in forests are concerned number of rights are available for their empowerment in forests irrespective of the aim of conservation of forest.

Actually forests[3] are major natural resources and also recognized as a colourful expression of nature. They are also recognized as guardians and protectors of the wildlife of the country. Forests are valued not only for various kinds of flora and fauna but also for minerals, water sheds, crudes of rivers, check on desertification, and as important recreational resources and for their scenic beauty. The forests have been vital to the human life, since the time immemorial. There, management of forests is an essential aspect of the protection of the environment. It also becomes more important as the trees are known as pools or banks of carbon dioxide. Cutting of trees releases carbon dioxide into the atmosphere which has largely contributed to the green-house effect or global warming. This global warming, in turn, has resulted in the melting of ice-caps and rise in the sea-level; a change in a climate patterns has also been experienced all over the world. The UNEP[4] has recently declared that because of the effect of green-house gases, the year 2003 has been found to be the hottest in the last fifty years.

Until the 42nd Amendment to the Constitution in 1976, the subject “forest” was in the State List, in VII Schedule of the Constitution. However, the numerous state laws on the subject could not effectively save the forest land. Therefore, the Parliament and the States amended VII Schedule and placed the subject “forest” in the Concurrent List as item 17-A, by taking it out of the State List. Consequently, after 1946, both the Parliament and the State Legislatures can make laws on the subject “forest” of course subject to the prevailing power of the Central Law over the State Laws, in the event of any conflict. Infact, the Central Act namely the Indian Forests Act, 1927[5] has been in the statute book even before the commencement of the Constitution.

The following are the important enactments which provide measures for the protection of forests, forest products and forest land including penalties for contravention of the provisions thereof in Central and A.P. State wise-

  1. The Indian Forest Act, 1927,
  2. The Forest (Conservation) Act, 1980 and
  3. The Andhra Pradesh Forest Act, 1967

Besides the above enactments Government of India has also adopted the National Forest Policy in 1988. As the Tiger Task Force of the Government of India put it, “in the name of conservation, what has been carried out is a completely illegal and unconstitutional act is committed in a land acquisition programme.” Hence in the year 2006, the Government of India adopted one more enactment for the protection of rights of the tribes and other traditional forest dwellers by the name The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.[6]

The Act basically does two things:

  • Grants legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice caused by the forest laws.
  • Makes a beginning towards giving communities and the public a voice in forest and wildlife conservation.

 

Who is a forest dweller under this law, and who gets rights?

There are two stages to be eligible under this Act. First, everyone has to satisfy two conditions:

  1. Primarily residing in forests or forest lands;
  2. Depends on forests and forest land for a livelihood (namely “bona fide livelihood needs”)
    Second, they have to prove:
  • That the above conditions have been true for 75 years, in which case they are an Other Traditional Forest Dweller (s. 2(o))[7];

OR

  • They are a member of a Scheduled Tribe (s. 2(c))[8]; and
  • They are residing in the area where they are Scheduled (s. 4(1)).

In the latter case they are a Forest Dwelling Scheduled Tribe.

What kind of rights do forest dwellers get under this Act?

The law recognises three types of rights:

Land Rights: No one gets rights to any land that they have not been cultivating prior to December 13, 2005[9] and that they are not cultivating right now. Those who are cultivating land but don’t have document can claim up to 4 hectares, as long as they are cultivating the land themselves for a livelihood[10]. Those who have a patta or a government lease, but whose land has been illegally taken by the Forest Department or whose land is the subject of a dispute between Forest and Revenue Departments, can claim those lands[11]. There is no question of granting 4 hectares of land to every family. If a person is cultivating half a hectare on December 13, 2005, he receives title to that half a hectare alone; and if he is cultivating nothing, he receives nothing. If he is cultivating more than 4 hectares without documents or a dispute, he receives title to only 4 hectares. The land cannot be sold or transferred to anyone except by inheritance[12].

Use Rights: The law secondly provides for rights to use and/or collect the following:
a. Minor forest produce things like tendu patta, herbs, medicinal plants etc “that has been traditionally collected [13]. This does not include timber.

b. Grazing grounds and water bodies[14]

c. Traditional areas of use by nomadic or pastoralist communities i.e. communities that move with their herds, as opposed to practicing settled agriculture.

Right to Protect and Conserve: Though the forest is supposed to belong to all of us, till date no one except the Forest Department had a right to protect it. If the Forest Department should decide to destroy it, or to hand it over to someone who would, stopping them was a criminal offence.

For the first time, this law also gives the community the right to protect and manage the forest. Section 3(1) (i) provide a right and a power to conserve community forest resources,[15] while section 5 gives the community a general power to protect wildlife, forests, etc[16]. This is vital for the thousands of village communities who are protecting their forests and wildlife against threats from forest mafias, industries and land grabbers, most of whom operate in connivance with the Forest Department.

How are rights recognized?

Section 6 of the Act provides a transparent three step procedure for deciding on who gets rights. First, the gram sabha (full village assembly, NOT the gram panchayat) makes a recommendation – i.e who has been cultivating land for how long, which minor forest produce is collected, etc. The gram sabha plays this role because it is a public body where all people participate, and hence is fully democratic and transparent. The gram sabha’s recommendation goes through two stages of screening committees at the taluka and district levels. The district level committee makes the final decision[17]. The Committees have six members – three government officers and three elected persons. At both the taluka and the district levels, any person who believes a claim is false can appeal to the Committees, and if they prove their case the right is denied.[18] Finally, land recognized under this Act cannot be sold or transferred.

Conclusion:

Millions of people live in and near India’s forest lands, but have no legal right to their homes, lands or livelihoods.  A few government officials have all power over forests and forest dwellers. The result is both forests and people die.  This Act recognizes forest dwellers’ rights very aptly and makes conservation more accountable.

[1] Distinction between Tribe and Caste are-

  1. A tribe is a local or territorial group but a caste is a social group.
  2. The tribes have their own common dialect whereas there is no common language with a caste.
  3. Tribe becomes caste with the loss of its territorial attachment but castes cannot become tribes.
  4. Tribe is a political association, whereas caste is a social association.

 

[2] Myneni S.R., “sociology”, First Edition 2008, Allahabad Law Agency

[3] The term “forest” is derived from a Latin word “foris” which mean “outside” probably indicating outside the dwelling house.

[4] UNEP-United Nations Environment Programme

[5] Act No.16 of 1927

[6] Act No. 2 of 2007

[7] Section 2 (o) “ Other Traditional Forest Dwellers” means any member or community who has for at least three generations prior to the 13th day of Dec, 2005 primarily resided in and who depend on the forest or forests land for bonafide livelihood needs.

Explanation: For the purpose of this clause, “generation” means a period comprising of twenty five years.

[8] Section 2(c) “Forest Dwelling Schedule Tribes” means the member or community of the Schedule Tribes who primarily reside in and who depend on the forest and forest land for bonafide livelihood needs and include, the Schedule Tribe pastoralist communities.

[9] Section 4 (3) of The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[10] section 3(1) (a) and 4(6) Ibid

[11] section 3(1)(f) and (g) of The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[12] section 4(4), Ibid

[13] section 3(1) (c), Ibid

[14] sections 3, Ibid

[15] Section 3 of the Act provides the forest rights of the forest dwelling Schedule Tribes and other Traditional Forest dwellers on all forest lands.

[16] Section 5 of the Act  provides Duties of Holders forest rights

[17] Section 6(6) of The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[18] Sections 6(2) and 6(4) Ibid

The Quest for Justice for Women and Child

Dr. Petikam. Sailaja

Right from the vedic times till date, we as a nation suffer from the well known vice – Gender Bias. Women and children in the contemporary world are growing up with an unprecedented exposure to sophisticated and violent kinds or imagery. They are exposed to every kind of harmful materials through radio, movies, phones and the internet. Family is foundation of civilized society. Infact, man and woman are two halves of humanity none of the two can reach its highest creative excellence without cooperation of the other. Through the ages, a woman is the mother of mankind. But the most horrendous cruelties have influenced her life. Even in the new millennium, the status of women has not improved significantly. The World today is said to be controlled by money, power and influence. Most of that is bundled up in the hands of a few. The rich rarely become victims of the law. Women constitute about one-half of the global population, but they are placed at various disadvantageous positions due to gender difference and bias. They have been the victims of violence and exploitation by the male dominated society all over the world. The concept of equality between male and female was almost unknown to us before the enactment of the Constitution of India . The journey has been a long, but interesting and rewarding one is learned that sexual harassment is a complex challenge, one that is often controversial and contentious. Attitudes towards sexual harassment run the gamut from discomfort, fear and concern; to disbelief and indifference. Children too in current times are being increasing exposed to sexually explicit material which is not suitable to their age. Women’s and children’s issues have been a matter of great concern for a long time but these are taken seriously only in the past few decades.

The International Bill of Human Rights strengthened and emphasized on the human rights of women and children. As regards India, our Constitution provides better protection to women and children under Articles 14 , 15(3) , 16 , 21 , 21-A , 24 , 39(A) , 51-A , 32 , 226 and the Preamble of the Constitution. Moreover, the earlier legislations in India have protected the women and children from torture, cruelty, outrage of modesty, rape, cheating, assault, bigamy and harassment under the provisions of sections 509 , 498-A , 494 , 497 , 304-B , 305 , 354 , 375 and 376 of the Indian Penal Code, 1860 for maintenance under section 125 to 128 of Code of Criminal Procedure, 1973.

Social Legislations to protect the Women and Child:

Government of India has enacted special legislations to protect the women and child. Some of the most useful legislations are as follows-

1. The Factories Act, 1948:

This Act provides some special provisions for women and children to regulate the conditions in manufacturing establishments (Factories) in order to protect the women and children and also provide some provisions for health and safety measures. According to this Act no child who has not completed his fourteen year shall be required or allowed to work in a factory. But a child who has completed his fourteenth year or an adolescent may be allowed to work in a factory if (a) a certificate of fitness for such work is in the custody of the manager of the factory, and (b) such child or adolescent carries, while he is at work, a token giving a reference to such certificate. No women shall be required or allowed to work in a factory except between the hours of 6 a.m. and 7 p.m..

 

2. The Immoral Traffic (Prevention) Act, 1956:

This Act is enacted in pursuance of the International Convention signed at New York on the 9th day of May 1950, for the prevention of immoral traffic. The scope of the law is to cover both the sexes exploited sexually for commercial purposes and provided, inter alia, enhanced penalties for offences involving children and minors. The Act, lays down penalties for keeping a brothel or allowing premises to be used as a brothel; living on earning of prostitution; procuring, inducing and inducing person for the sake of prostitution; detaining a person in premises where prostitution in or in the vicinity of public places; seducing or soliciting for purpose of prostitution; and seduction of a person in custody. Besides contemplating specialized machinery for its enforcement, the Act envisages a comprehensive scheme for secure, protection and corrective treatment of prostitutes.

3. The Dowry Prohibition Act, 1961:

Main object of this Act is to prohibit the giving or taking of dowry . This Act impose penalties for giving or taking dowry and also for demanding dowry. Any agreement for the giving to taking dowry shall be void. Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the women, and pending to such transfer, shall hold it in trust for the benefit of the women. Otherwise, he shall be punishable. Offences under this Act are cognizable, bailable and non-compoundable and trial by the Metropolitan Magistrate or a Judicial Magistrate of the First Class. The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

4. The Maternity Benefit Act, 1961:

The Maternity Benefit Act, 1961 was enacted to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and certain other benefits. The Maternity Benefit Act, 1961 is intended to achieve the object of doing social justice to women workers. Therefore the Court held in B.Shah vs. Labour Court, Coimbatore, that in interpreting the provisions of this Act, the Court has to adopt the ‘beneficient rule of construction’, which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output.

5. The Child Labour (Prohibition and Regulation) Act, 1986 :

This Act has been enacted to prohibit the engagement of children in certain employments and to regulate the conditions of work of children in certain other employments. According to this Act no child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the process set forth in Part B of the Schedule is carried on. Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from Government. Child means a person who has not completed his fourteenth year of age. This Act regulated the conditions of work of children in employments where they are not prohibited form working.

6. The Indecent Representation of Women ( Prohibition ) Act, 1986:

This Act is intended to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other matter. This Act prohibits the advertisements containing indecent representation of women. No person shall, or cause to be published, or arrange or take part in the publication of exhibition of any advertisement which contains indecent representation of women in any form. The Act also prohibits the publication or sending by post of books, pamphlets etc., and containing indecent representation of women.

7. The Family Courts Act, 1984:

According to this Act, establish Family Courts where population exceeds one million. The main object for the establish Family Courts with a view to promoting conciliation in, and securing speedy settlement of, disputes relating to marriage and family affairs. No party to a suit or proceeding before a Family Court is entitled, as of right, to be represented by a legal practitioner provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of legal expert as amicus curie.

8. The Legal Services Authorities Act, 1987 :

The Act came into operation on 9th November 1995 and that day is celebrated as legal service day throughout country. All the governmental and non-governmental institutions having concern with legal service organize different types of activities and programmes on the eve of the legal services day. The Act was passed to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. The Act strive to fulfill the aims and objectives as envisage under Article 39-A of the Constitution of India. According to section 12 of this L.S.Act, 1987 the women and child shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend. Legal services may be provided in any one or more than one of the following modes, namely:

a) Process fees and all other charges payable or incurred in connection with any legal proceedings except court fees,

b) Representation by a legal practitioner in a legal proceeding,

c) Obtaining of certified copies of orders and other documents in the legal proceedings,

d) Preparation of a paper book including printing and translation of documents, in the legal proceedings,

e) Any other expenses which chairman of Legal Services Committee or District Authority deem fit to grant in special circumstances of a given case.

Any person desiring legal aid or advice may make an application addressed to the concern authority and the application shall be processed as early as possible and preferably within one month.

9. The National Commission for Women Act, 1990:

This Act came into force w.e.f. 31st January, 1992. The National Commission for Women under section 3 of the Act has been constituted. The main objective of the Commission is to study and monitor all matters relating to provisions of Constitutional safeguards for women and to review existing legislations as well as suggest amendments, wherever necessary. The Commission consists of a Chairperson nominated by the Union Government and five other members who have experience of law, administration, health, education, social welfare and management. A Member-Secretary is also nominated by the Central Government who is member of Civil Services of the Union or All India Services.

10. The Protection of Human Rights Act, 1993 :

This Act provides for the constitution of National Human Rights Commission, State Human Rights Commissions and Human Rights Courts for better protection of Human Rights. Human Rights mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.

11. Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994:

In olden days, it was impossible to determine the sex of the baby in the womb of mother until it was delivered. As medicine advanced, new techniques were devised for preventing the genetic, chromosomal disorders of child in the womb. With these modern techniques and machinery it became possible to ascertain the sex of the child in the womb even in the early stages of pregnancy. The techniques used to diagnose the condition, and sex of the foetus is called ‘Amniocentisis’. These techniques are actually used to test the amniotic fluids, blood or any tissue of a pregnant woman for the purpose of finding any genetic or metabolic disorders. This advancement of science turned to be a curse towards female child. This is an Act to provide for the prohibition of sex selection, before or after conception, and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto. This Act came into effect from 1st February, 1996. The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 was enacted with the following objects

(i) Prohibition of the misuse of Pre-natal Diagnostic Techniques for determination for sex of foetus, leading to female foeticide,

(ii) Prohibition of advertisement of Pre-natal Diagnostic Techniques for detection or determination of sex,

(iii) Permission and regulation of the use of Pre-natal Diagnostic Techniques for the purpose of detection of specific genetic abnormalities or disorders,

(iv) Punishment for violation of the provisions of the Legislation.

The Medical Termination of Pregnancy Act, 1971 is enacted to provide for the termination of pregnancy by registered medical practitioners where its continuity would involve a risk to life or grave injury to her physical or mental health. Because in recent years health services are available everywhere and the service hospitals with qualified doctors are available to all classes of people. The Government proposed to liberalize certain existing provisions relating to termination of pregnancy to avoid loss of the mother’s health, strength and sometimes life.

12. The Juvenile Justice Act, 2000:

The movement for special treatment of Juvenile offenders started towards the end of eighteenth century. Prior to this, juvenile offenders were dealt with exactly like those of adults. They were prosecuted in criminal courts and were subjected to some penalties as adults. The guiding principles relating to the treatment of children and young delinquents are now contained in two Central Acts namely, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Prohibition of Offenders Act, 1958. The latter Act provides for release of juvenile offenders on probation. The J. J. Act, 2000 lays down a separate procedure for dealing with the neglected and uncontrollable juveniles who have been termed as ‘children in need of care and protection’. A “Juvenile in conflict with law ” is dealt with by the Juvenile Justice Board. While the “child in nee of care ” is to be proceeded by the Child Welfare Committee (CWC), children Home and Shelter Home to look after the interest of the child. J.J.Board may order the release of Juvenile in Conflict with law on probation . By the Juvenile Justice Amendment Act, 2006 of provides for the Constitution of Child Protection Unit responsible for implementation of the Act. And also provides for the establishment of Special Juvenile Police Units for handling of the Juveniles and Children under the Act and prevention of Juvenile Crimes. These police units shall be specially trained for the purpose.

10. The Commission for Protection of Child Rights Act, 2005:

In order to give effect to the policies adopted by the Government for the protection of the rights of child The Commission for Protection of Child Rights Act, 2005 was enacted with a view to provide for the constitution of a National Commission and State Commission for Protection of Child Rights and Children Courts for providing speedy trial of offences against children or of violation of child rights .

The Commission National/State shall perform a number of functions which includes:

(a) examine and review the safeguards provided by or under any law for the time being in force for the child rights;

(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of these safeguards;

(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;

(d) examine all factors that inhibit the enjoyment of rights of child affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures;

(e) look into the matters relating to children in need of special care and protection;

(f) study treaties and other international instruments and undertake periodical review of existing policies and programmes and other activities on child rights;

(g) undertake and promote research in the field of child rights;

(h) spread child rights literacy among various sections of the society;

(i) inspect any juvenile custodial home or any other place of residence or institution meant for children;

(j) inquire into complaints and take suo motu notice of matters relating to deprivation and violation of child rights;

(k) Such other functions as it may consider necessary for the promotion of child rights.

The Act also says that for the purpose of providing speedy trail of offences against children or of violation of child rights, the State Government, may with the concurrence of the Chief Justice of the High Court, by notification, specify at least a Court in the State or specify, for each district, a Court of Session to be Children’s Court to try the said offences: For every Children’s Court, the State Government shall, by notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a special Public Prosecutor for the purpose of conducting cases in that court .

Children are not an expense, they are an investment. They shape the future of the country. It’s the duty of the parents, NGO’s and the Government to see the care of every child by way of protecting their rights as a need to the county.

11. The Protection of Women from Domestic Violence Act, 2005:

This Act proposed to enact a Law keeping in view the rights guaranteed under Article 14 15, and 21 of Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrences of domestic violence in the society. According to The Protection of Women from Domestic Violence Act, 2005 “Domestic Violence” means any harm, or injury to health, safety, life, limb or well-being or any other act or threatening or coercion etc., by any member of family. An aggrieved woman who is, or has been, in a domestic or family relationship in the nature of marriage, adoption or are family members can complain. Aggrieved women, who have been subjected to any act of domestic violence by the respondent, can complain to the Protection Officer, Police Officer, Service Provider or Magistrate. The Magistrate receiving the Domestic Incident Report(DIR) which is equivalent to FIR may take up enquiry into the case which is called DVC (Domestic Violence Case). After receiving DIR issue notice to the respondent within 2 days and fix the 3rd as the date of hearing. Meanwhile, if the Magistrate deems it fit may issue exparte interim orders against the respondent such orders may be passed even after the appearance of the respondent as well pending issuance of reliefs prayed for by the aggrieved women. According to this Act after receiving the domestic incident report the Magistrate try the matter speedily and the court has the power to ban publication of proceedings held in camera. The aggrieved women can seek protection orders, residence orders, monetary orders, custody orders and compensation orders . The victims may be wives, sisters and mothers or any other female relative living in the share-household in domestic relationship. The respondents are males or may also be female. All orders of the Magistrate are appealable to the Sessions Court which disposes of the appeal as though it is a criminal appeal filed under Cr.P.C. There is no revision to the Sessions Court or the High Court against the orders of the Magistrate. The orders of the Sessions Court not being appealable to the High Court and the High Court may entertain revision against the orders of the Sessions Court. The Act by itself does not punish the respondent in the domestic violence case, but if the case discloses any offences punishable under the Penal Code or any other penal law, or under the Dowry Prohibition Act. As far as this case is concerned, it runs as a civil case and in the manner the maintenance under section 125 of Cr.P.C. or in the manner in which security proceedings are held by the Magistrate under the provisions of Cr.P.C.

12. The Protection against Sexual Harassment of Women Bill, 2005:

This Bill confers upon women the right to protection against sexual harassment, and towards that end for the prevention and redressal of sexual harassment of women. Every woman shall have a right to be free from sexual harassment and right of work in an environment free from any form of sexual harassment.

13. The Prohibition of Child Marriage Act, 2006:

After passing of this Act The Child Marriage Restraint Act, 1929 has been repealed. The object of this Act is to provide for the prohibition of solemnization of child marriages. According to this Act child means a person who, if male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age. Every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contraction party who was a child at the time of the marriage. Marriage of a minor child’s to be void in certain circumstances. Child marriage has been annulled by a decree nullity under this Act, every child begotten or conceived of such marriage before the decree is made, whether born before or after the commencement of this Act, shall be deemed to be a legitimate child for all purposes. This Act provides punishments for male adult marrying a child or for solemnizing a child marriage and for promoting or permitting solemnization of child marriage. Contravention of the provisions of this Act the person shall be punished and the offence is cognizable and non-bailable.

14. The Right of Children to Free and Compulsory Education Act, 2009:

This Act provides free and compulsory education to all the children of the age of 6-14 years. Act says that every child of the age of 6-14 years have a right to free and compulsory education in a neighborhood school till completion of elementary education. The child so admitted to elementary education shall be entitled to free education till completion of elementary education even after 14 years. The Appropriate Government may make necessary arrangements for providing free pre-school education like early childhood care and education for children above the age of three years to six years. No capitation fee and screening procedure for admission to a child or his/her parents or guardian. Contrary to this, receives capitation fee shall be punishable with fine which may extents to ten-times the capitation fee charged and to screening procedure, shall be punishable with fine which may extent to Rs.25,000/- for the first contravention and Rs.50,000/- for each sub-sequent contraventions.

Any person having any grievance relating to the right of a child under this Act, may make a written complaint to the local authority having jurisdiction and the authority decide the matter within a period of three months after affording a reasonable opportunity to the parties concerned. Aggrieved by the decisions of the local authority may preferred an appeal to the State Commission for protection of child rights constituted under the Commission for Protection of Child Rights Act, 2005.

15. The Protection of Children from Sexual Offences Act, 2012:

This Act came into force from November 14th 2012. The Act aims at protecting children from offences of sexual assault , sexual harassment and pornography and provides for establishment of Special Courts for trial of such offences. Until now, various provisions in the Indian Penal Code were used to deal with sexual offences. However the law did not make a distinction between an adult and a child. This is the first time different sexual offences against persons below the age of 18 years have been defined and specifically provided for. The object of the Act is to provide safety, security and protection of children against sexual assault, sexual harassment and pornography. The punishments provided in the law are also stringent and are commensurate with the gravity of the offence. The offence is considered ‘aggravated’ if committed by a person in a position of authority such as a public servant or member of the security forces. The criminal procedure law has been made widely applicable in dealing with cases under this Act. Any child offender has been directed to be dealt under Juvenile Justice (Care and Protection of Children) Act, 2000 that recommends rehabilitate measures other than penal actions for child offenders. Complaints under this law are to be filed before the Special Court of Session, which includes the power to impose punishment up to life imprisonment.

Personal Law Legislations:

Personal laws are applicable to the persons of particular religions and not applicable to all religions persons like general laws. Hence, Hindu laws applicable to Hindus, Muslim laws applicable to Muslims and Christian law applicable to Christians. Some of the special provisions are inserted for the protection of women in Religious Legislations, they are as follows-

1. The Hindu Marriage Act, 1955

2. The Hindu Adoption and Maintenance Act, 1956

3. The Hindu Minority and Guardianship Act, 1956

4. The Succession Act, 1956

5. The Muslim Women Protection Act, 1986

Judicial Approach:

The Supreme Court of India has touched on the issue of immoral human traffic in two prominent judgments, i.e.-Vishal Jeer vs. Union of India (1990) and in Gaurav Jain vs. Union of India(1997). These judgments directed the Government if India, among other things, to prepare a ‘National Plan to Combat Trafficking and Commercial Sexual Exploitation of Women and Children’. As a result of this, a Nation Plan was drafted in 1998 which lays down measures for prevention, rescue, rehabilitation and reintegration. In the matter of Visakha vs. The State of Rajasthan the Hon’ble Supreme Court laid down the definition of sexual harassment and gave its details of sexual harassment.

Society has to be controlled. Society can exist only under the shelter of the State, and the law and justice of State is a permanent and necessary condition of peace, order and civilization . India is a socialist State . According to the Supreme Court “The principal aim of socialism is to eliminate inequality of income and status and standard of life and to provide a decent standard of life to the working people”. Democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. Socialistic concept of society should be implemented in the true spirit of the Constitution . The Constitution embodies a distinct philosophy and declares that India will be organized as a Social Welfare State .

Conclusion:

Though various Legislations are enacted for the protection of women’s and children’s rights various anomalies are also existed in legislations which must be amended for better protection of women’s and children’s rights to save the women and child. The Children are the nation’s asset and future resource of manpower for the country. They constitute the core of human society. It is their development, which sustains the society. Their development with dignity is a matter of great concern throughout the world .

It is to be noted that the legislations or Acts alone cannot eliminate the discrimination against women and child. In order to reduce the offences we must change the attitude and behaviour of men; and this has to start early in boyhood. Enlightened fathers, husbands and brothers are more likely to respect daughters, wife and sisters.

The Rights of Persons with Disability Act, 2011: A Bird’s Eye View

Dr.P.Sailaja•

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

The International Day of the Persons with disabilities is fast approaching on 3rd of December. Theme for 2011 is “Together for a better world for all: Including persons with disabilities in development”. Based on the main theme this year suggested sub-themes, they are

 Mainstreaming disability: including a disability perspective in all development process.

 Gender: including women and girls with disabilities in development.

 Including children and youth with disabilities in development.

 Accessibility: removing barriers and promoting disability-inclusive development.

 Promoting data collection and statistics on disability.

 

Mentally ill persons and persons with mental handicap are treated as disabled persons under The Persons With Disabilities (Equal Opportunities, protection Of Rights and Full Participation) Act, 1995. Disabled persons are entitled to free legal services under Section 12 of the Legal Services Authorities Act, 1987. The law governing mentally ill persons is the Mental Health Act, 1985. There are circumstances under the Mental Health Act which require legal aid to the mentally ill persons, especially when the proceedings relating to Reception Order and Inquisition proceedings are to take place.

 

The NALSA convened a meeting of psychiatrists, social activists and Government secretaries dealing with mental health for formulating guidelines for legal services to mentally ill persons. Draft guidelines have been prepared and subject to the approval of the Central Authority, the guidelines will be circulated to all legal services institutions for putting into practice. In this context we have to know what type rights are available to the disabled persons under different legislations.

Legislations to Persons with Disabilities:

In order to promote and protect the rights and dignity of persons with disabilities the following enactments are enacted in India. They are as follows:

  •  Persons With Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Which provides for education, employment, creation of barrier free environment, social security etc.
  •  National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999. This provides legal guardianship of the four categories and creation of enabling environment for as much independent living as possible.
  •  Rehabilitation Council of India Act, 1992. It deals with the development of manpower for providing rehabilitation services.
  •  Recently National Institute for Mentally Handicapped under the Ministry of Social Justice and Empowerment had constituted a Committee under the Chairmanship of Dr. Sudha Kaul. The Committee submitted the Report including a Draft Bill called “The Rights of Persons With Disabilities Bill, 2011” to the Ministry of Social Justice Empowerment on 30.06.2011. The new “Rights of Persons With Disabilities Act” may be enacted soon and this Act may be called the “Rights of Persons with Disabilities Act, 2011”.

 

Hence this paper focuses the Rights of Persons with Disabilities under the Act, 2011.

India has signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and thereby made an international commitment to promote and ensure the rights recognized in that convention. The Constitution of India is also resolves to secure to all its citizen justice, liberty, equality and fraternity and citizen with disability are an essential part of the Indian Human Diversity.

The Rights of Persons With Disabilities are-

  •  To integrity, dignity and respect with full participation and inclusion;
  •  To assert human interdependence and celebrate human diversity;
  •  To live a life free of shame, ridicule, or any form of disempowerment and stereotyping;
  •  To be bearers of all civil-political and socio-economic rights guaranteed by international and national law on an equal basis with others .

The Rights of Persons with Disabilities Act, 2011(here in after called the Act) totally contained 32 Sections which are inserted in seven Parts. Part-I deals the introduction (Sec’s 1&2), Part-II deals lifting barriers (Sec’s 3 to 8E), Part-III deals the legal capacity and civil political rights (Sec’s 9A to 21), Part-IV deals capacity development (Sec’s 22 to 28), Part-V deals regulatory and adjective authorities (Sec29), Part-VI deals offences and penalties (Sec 30), last Part i.e. Part-VII deals miscellaneous (Sec’s 31&32).

While interpreting the Act any Court, person or authority shall bear in mind that the provision of the Act shall be so construed as to promote equality before law, equal protection of laws and equal recognition before law to all persons with disability and the right to live with human dignity and personal liberty but shall not be construed effect of denying, suspending, reducing, or eliminating the legal capacity of any person with disability . So the construction of this Act is to be beneficiary construction on behalf of the persons with disabilities.

According to this Act Persons with Disabilities means “persons with autism spectrum conditions; blindness, cerebral palsy, deaf blindness, dyslexia, low-vision; hemophilia, thalassemia, leprosy affected, hearing impairment; speech impairment, specific learning disabilities, locomotor impairment; mental illness, chronic neurological conditions, mental retardation; muscular dystrophy, multiple sclerosis, multiple disabilities which in interaction with various barriers prevents full and effective participation in society on an equal basis with others; provided that the Central Government may, by notification, include any other impairment in the above list on the recommendation of an Expert Committee through a review every five years .

 

Rights of the Persons with disabilities:

In order to removing or lifting the barriers the appropriate governments and the Disability Rights Authority shall devise suitable information campaigns, and sensitization programmes which raise awareness on the direct and indirect discrimination directed against persons with disability and especially women and children with disability as a measure to prevent such discrimination. So the Act is given special protection to women and children with disability which is not available in the persons with disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Accessibility is an essential pre-condition to enable persons with disabilities to live independently and participate fully in all aspects of life hence the Act provided such accessibility on an equal basis with others to the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services open or provided to the public, both in urban and in rural areas . For example the appropriate government shall set up Service Animal training facilities to provide persons with disabilities with suitable service animals . No individual, organization or establishment shall be granted permission to build any structure if the building plan does not adhere to the regulations formulated by the Disability Rights Authority . All existing public buildings used for government purposes shall be made accessible within a period not exceeding three years from the enactment of this Act . Any contravention of the regulations on accessibility formulated by the Disability Rights Authority shall be penalized with cancellation, revocation or suspension of service license or manufacturing; or with fine, which may extend up to one lakh rupees or with both. If the offender fails to comply with the above provision within a period of six months from the date of conviction, the offender shall be penalized with additional fine which may extend up to five thousand rupees for every day during which such failure continues after the conviction for first such failure .

In order to Right to Education of women and girls with disabilities ensures that all girls with disabilities have access to necessary, adequate and appropriate support for the completion of primary, secondary and higher education, and all school building are accessible to girls with disabilities .

Every child /women with disability whether temporarily or permanently protected against all forms of exploitation, abuse and violence at all place. The appropriate government shall take all appropriate measures to protect all girls and women with disabilities, whether in rural or urban areas, from all forms of exploitation, abuse and violence . Women with disabilities have a right to marry and found a family on the basis of free and full consent, on an equal basis with others. Termination of pregnancy without her express consent and contravention of this section shall be punishable with imprisonment for a period not exceeding ten years and with fine . The appropriate government shall take measures to ensure that all police stations, courts, tribunal etc, are accessible to child/women with disabilities . Procedure is prescribed for every person with disability shall be entitled to solemnize a marriage with a person of his or her choice. That the other spouse was aware of the disabilities of the person with disabilities at the time of marriage . Violation of this condition the marriage shall not be avoidable solely because one or both of the spouses were persons with disabilities at the time of the marriage. The marriage may be dissolved on the grounds of (i)irreconcilable differences have arise or (ii) on mutual consent of the party but the matter may be decided based on the best interest of child. In such matters, the court shall make en effort to consider the opinion of the child if rendered. And but the marriage shall not be nullified based solely on the ground that the other party is a person with disability.

Plenary guardianship is abolished. Any legislation, rule, regulation and practice following or prescribing the system of plenary guardianship shall, hereinafter, be void; The Disability Rights Authority or any other Authority expressly established for such purpose shall take suitable steps including, where appropriate, mediation proceedings, in order to assist person with disabilities to exist from plenary guardianship and to help set up where required by persons with disabilities suitable support arrangements for the exercise of their legal capacity . Any person with disability who is deprived of legal capacity or is denied of the exercise of legal capacity by any person, authority or agency may file a complaint of such deprivation or denial to State Disability Court which shall provide a suitable relief as expeditiously as possible .

Right to life includes not to limited to adequate nutrition, clothing and shelter, wellness and healthcare but also access to facilities for reading writing and expressing one-self in any form or language whether written, spoken, unspoken, or sign language and opportunity to acquire personal, social, educational and vocational skills required to function as a person with disability . Contravention of this shall be punished with imprisonment for a term which shall not be less than six months but which may extend to eight years, or with fine, or with both .

All persons with disabilities shall have the right to suitable protection and safety in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters .

Every person with disability shall have the right to access any scheme, programme, facility or service created by the National Legal Service Authority and the State Legal Service Authority of the respective State. The appropriate governments are made available to enable persons with disability to file a First Information Report. The Legal Services Authority, the Bar Council of India, the Bar Council of all States and bar association of all the courts are the authority responsible for infrastructure shall take steps to make all courts accessible for all persons with disability. All Judicial Academies, Police Academies and Training Organizations for Prison Officials and Legal Service Authorities are required to make training in disability rights a mandatory part of their induction and continuing education programs .

Every person with disability has a right to exercise franchise, stand for election. Every person with disability is entitled to form and be a member of any organization or association of his choice. No person with disabilities shall be disqualified to be chosen as a representative of the House of People (Lok Sabha), Council of States (Rajya Sabha), Legislative Assembly of a State and the Legislative Council of State and all institutions of local self government solely on the basis of their disability. The Election Commission in pursuance of the rights undertaken the followings-

 The construction and availability of ramps at all polling booths;

 Separate queues for persons with disabilities at all poling booths;

 The availability of ballot papers and/or electronic voting machines with candidates information available in Braille;

 Training programs to sensitize polling officers about the special requirements of persons with disabilities .

The appropriate government shall designate in every panchayat, municipal and notified area, officials or authorities who would be authorized to issue a disability certificate.

Every person with disabilities has a right to receive necessary, adequate and appropriate support for the completion of primary, secondary and higher education. Every child below the age of six years has a right to free childhood care and pre-school education. All institutions of higher education shall reserve not less than six percent of total seats in each course for persons with disabilities. Every school and higher educational institution shall have a staff of educators who have the requisite qualifications and training to cater to the needs of students with disabilities. No child shall be subject to physical punishment or mental harassment by reason of the disability or by denying reasonable accommodation. All schools shall ensure that children with disabilities shall have the right to participate in sporting, recreational and leisure activities on an equal basis with others.

Persons with disabilities shall not face discrimination in recruitment, promotion, and other related matters arising in the course of, or through the length of, employment in any establishment. They shall not be dismissed or suffer any reduction in rank solely on the grounds of acquiring any disability, or any consequences thereof. Provided that if any employee is placed under stress or disadvantage in the usual course of employment as a result of the disability, such employee will be eligible for a post at the same rank with adequate support. All establishments shall reserve not less than six percent of vacancies arising against all posts and in promotion for all persons with disabilities in accordance with the following banding of disabilities, with each band being entitled to one percent-

1. Persons with blindness and low vision;

2. Persons with hearing impairment and speech impairment;

3. Persons with locomotor disability and leprosy arrested;

4. Persons with cerebral palsy and muscular dystrophy;

5. Persons with autism, intellectual disability and mental illness;

6. Persons with multiple disabilities, deaf-blindness and multiple sclerosis.

If sufficient numbers of qualified persons with disabilities are not available in a particular year then the carry forward rule is applicable to the subsequent years. The percentage stated can be renewed and the classification altered upon review once every 3 years. No person with disability shall be denied promotion by reason of disability. Every Employment Exchange shall register in accordance with prescribed procedure and thereby maintain records of persons with disabilities seeking employment. All establishments and employers as the case may be shall arrange for the rehabilitation of an employee who acquires a disability during the course of service. If the employee cannot function on the same post even with the provision of reasonable accommodation then the establishment shall relocate the employee to a suitable post without any reduction in salary and rank on which the employee can perform whether with or without reasonable accommodation. The appropriate government shall within a period of one year of the enforcement of this Act provide incentives to all establishments to ensure that at least ten percent of their work force is composed with disabilities. Every establishment shall, as part of their Employment policy, set up a grievance redress cell. The officer-in-charge of such grievance redressal cell shall be termed the grievance redressal officer, and shall be registered with the State Disability Court. If the grievance redressal officer fails to address the complaint within two weeks of being registered, then the person with disability may approach the State Disability Court. All establishments shall provide medical insurance and life insurance to persons with disabilities on an equal basis with others.

 

Adjudicative Authorities:

The following authorities are established for the protecting and promoting the rights of the persons with disabilities in order to regulating and adjudication as per this Act .

 

Disability Rights Authority:

For the purpose of promoting, protecting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms of all persons with disabilities, an Authority shall be established which shall be called the Disability Rights Authority . The Authority shall be a body corporate by the name aforesaid and have its head and seat in New Delhi. The Authority may establish offices at other places in India. It shall consist of a Chairperson and the members of governing body as full time members. For the purpose of this Act, a Fund is to be established by the name National Fund for Persons with Disabilities and shall be credited thereto. The Disability Rights Authority shall not be liable to pay wealth-tax, income-tax, or any other tax in respect of their wealth, income, profits or gains derived. Subject to the provisions of this Act, it shall be the duty of the Disability Rights Authority to promote, protect and monitor the enforcement of the rights of persons with disability by such measures as it deems fit. Authority has a power to suo moto to conduct investigation/inquiry for determining cases regarding any systemic violation of rights of persons with disabilities from various stakeholders. The Authority shall have the same powers as are vested in a civil court and in consultation with the parties shall develop a written undertaking that provides the measures which shall be taken to ensure compliance. Failure to comply with the aforementioned undertaking shall result in the imposition of sanctions and penalties. The parties against whom any sanctions and penalties has been imposed, may appeal to the Court of National Disability Commissioner. The Disability Rights Authority may where it considers feasible, endeavour to eliminate any discriminatory practice by informal methods of mediation and conciliation. The Disability Rights Authority shall submit an annual report to the Central Government or State Government as the case may be, and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.

 

Court of National Disability Commissioner:

The Central Government shall establish a Court of the National Disability Commissioners . This Court consist of three full-time members including-

a) One person who will be the presiding judge and has been qualified to be a Judge of Supreme Court;

b) Two persons having knowledge of disability law and having expertise and experience in human rights of persons with disabilities.

This Court shall –

a) Be the appellate authority from all original orders of the Disability Rights Authority;

b) Adjudicate upon matters referred to it by the Disability Rights Authority;

c) Take suo moto cognizance of the infringement of rights of persons with disabilities and pass appropriate orders or directions.

d) Any aggrieved person may directly approach the Court of National Disability Commissioner for matters related to disability discrimination.

This Court shall have the same powers vested in a civil court. The decree or order of this court may be executed either by the same court or by any other court to which it is sent for execution.

 

State Disability Courts:

The State Government shall establish a Court of the State Disability Commissioners to be known as “State Disability Court” . The State Government may establish a requisite number of Benches of State Disability Courts in different parts of the State having regard to demographic and geographic requirements. A Disability Court shall consist of two full-time members including-

a) One person who will be the presiding judge and shall be qualified to be a Judge of a High Court;

b) A person having knowledge of disability law and having expertise and experience in human rights of persons with disabilities.

The powers and functions of the State Disability Courts are same vested in Court of National Disability Commissioner.

Whoever fails to comply with any order made by the Court of the National Commissioner or the State Disability Courts, as the case may be, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten lakhs rupees or both .

 

Conclusion:

Now let’s hope that everybody learns to treat a disabled with love and affection, treat him with equal dignity as shown to a normal person. To effectuate the statement in Universal Declaration of Human Rights, 1948 that all human beings are born equal and they are equal in dignity and rights, our attitude to the disabled should change. This has to come from everybody’s heart. The essence of the Rights of the Persons With Disabilities Act, 2011 should be honoured in letter and spirit. Let every disabled feel that the concept of human rights is not a myth for him, but a reality.