B.

RIGHTS OF WOMEN

History of women’s rights in India:

Historically, women’s rights in India have gone through three phases, which are as follows:

1. During the first phase of the development of women’s rights, reformists began to reform education and customs by
advocating for women’s rights in the mid-19th century.
2. There was also a second phase between 1915 and the independence of India when Mahatma Gandhi included women’s
movements in the Quit India movement and independent women’s organizations started to form.
3. The final phase, post-independence, is characterized by the right of women to political parity, fair treatment after marriage,
as well as equal opportunities in the workplace.

There are still several obstacles that inhibit women in India from fully utilizing their rights and opportunities despite the
advancements. A woman’s religious rights and expectations, or the religious laws and expectations enumerated by her religion,
commonly conflict with the Indian Constitution, denying her the legal rights and privileges she should enjoy. Even though
there is still much to be done with regard to women’s rights, a lot of progress has already been made in securing rights for
women in India.

Fundamental Rights related to the Protection of Women

Article 14 confers on men and women equal rights and opportunities in the political, economic and social spheres.
Article 15 prohibits discrimination against any citizen on the grounds of religion, race, caste, sex etc.,
Article 15(3) makes a special provision enabling the State to make affirmative discrimination in favour of women. Similarly,
Article 16 provides for equality of opportunities in matters of public appointments for all citizens.

Directive Principles of State Policy

Article 39(a) further mentions that the State shall direct its policy towards securing to all citizens men and women, equally, the
right to means of livelihood,
Article 39(c) ensures equal pay for equal work.
Article 39(d)- Equal pay for equal work for both men and women.
Article 42 directs the State to make provisions for ensuring just and humane conditions of work and maternity relief.
Article 51 (A)(e)- To renounce the practices derogatory to the dignity of women
Article 300 (A)- Right of property to women
73rd and 74th Amendment Act 1992- Reservation 1/3rd of seats in local bodies of panchayats and municipalities
for women.

Women’s rights in India

Many women in this country are not aware of their rights. The following are the women’s rights in India based on gender
equality:

Right to equal pay

Increasing discriminatory pay scales for the same type of work have contributed to the emergence of issues related to ‘pay gap’
or unequal pay. The Indian economy still lacks an inclusive and transparent wage policy, and due to this, equal pay has become
a matter of concern. The concept of equal pay encompasses not only basic pay but also other benefits and allowances.
According to Article 39(d) and Article 41 of the Indian Constitution, both men and women are entitled to equal pay for equal
work. They form the Directive Principles of State Policy. The guidelines will therefore serve as a guide to both the central and
state governments of India, which are to be considered when framing laws and policies.

Legislation such as the Equal Remuneration Act of 1976 also plays a crucial role and is a prime example of this. Section 4 of
the Act not only stresses equal pay for equal work but also prohibits employers from reversing their pay scales to achieve an
equilibrium.

The Supreme Court first considered equal pay for equal work in Kishori Mohanlal Bakshi v. Union of India (1962). The court
decided that the principle could not be enforced in court. Mackinnon Mackenzie’s case, however, led to the recognition it
deserved in 1987. This case concerned a claim of equal remuneration for men and women stenographers. The lady
stenographers won the case as the court ruled in their favour.

Right to live in dignity and decency

The right to live in dignity, devoid of coercion, violence, and discrimination, belongs to every woman. Laws are very sensitive
towards women’s rights and dignity. Sexual harassment (Section 354A), assault with the intent to disrobe her (Section 354B),
voyeurism (Section 354C), stalking (Section 354D), and the like, are all crimes punishable under the Indian Penal Code (IPC).

Right against workplace harassment

Females are entitled to file a complaint against any kind of sexual harassment at their workplace under the Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act permits her to make a complaint in
writing to an Internal Complaints Committee (ICC) at a branch office within 3 months of the incident. In Vishakha and Ors. v.
State of Rajasthan and Ors. (1997), the following were the issues raised:

 Do sexual harassment at the workplace constitute a violation of the Right to Life and Liberty and the Right to
Gender Equality?
 Can the court apply international laws if there are no applicable measures under current law?
 In the event that sexual harassment is perpetrated against or by an employee, does the employer bear any
responsibility?
It was stated by the Hon’ble Supreme Court of India that there was no law to prevent sexual harassment and provide women
with a safe working environment. According to the Indian Penal Code, 1860, Section 354 and Section 354A were to be
referred to in any case of sexual harassment, but these provisions were not applicable in this case. Thus, the Hon’ble Court
became aware of the need for proper, effective legislation to address sexual harassment.

Right against domestic violence

Women who live in households like mothers or sisters are protected under Section 498A of the IPC from domestic abuse
(including verbal, economic, emotional, and sexual) perpetrated by their husbands, male live-in partners, or relatives. As
punishment, the accused will be sentenced to an indeterminate period of imprisonment, which may extend to three years, and
will also have to pay a fine.

Right against dowry

Despite the Dowry Prohibition Act, of 1961, dowry continues unabated in India. The bride’s family is often expected to give
‘gifts’ to the groom and his family, even if this is not demanded outright. Dowry is illegal in India, and hence, taking or giving
dowry is a punishable act under the Act. The penalty for violating the anti-dowry law is imprisonment for up to five years and
a fine of either Rs. 15,000 or the amount of dowry given, whichever is greater.

Right to keep their identity anonymous

There is a criminal offence in India for a person to disclose the identity of a victim of an offence committed under Section
376, 376A, 376B, 376C and 376D of the IPC (which broadly covers sexual assault offences). According to Section 228A of
the IPC, publishing the names of victims of sexual assault is prohibited, except in exceptional circumstances, such as when the
victim or next of kin is authorised to do so in writing (if the victim is dead or minor or of unsound mind). Further, the media is
prohibited from releasing any information that could lead to the identification of a child victim under Section 23 of the
POCSO Act, 2012.

Right to legal aid

According to Article 39A of the Constitution of India, which came into effect with the 42nd amendment, the poor and weaker
sections of society have free access to legal assistance.
According to Articles 14 and 22(1) of the Constitution of India, the State must ensure equality before the law and create a
legal system that promotes justice and gives equal opportunity to everyone. As of 9th November 1995, the Legal Services
Authorities Act was enacted by the parliament to create a uniform network for providing free and competent legal services to
the weaker sections of society nationwide. By virtue of the Legal Services Authorities Act, 1987, the National Legal Services
Authority (NALSA) is responsible for assessing the effectiveness of legal aid programs, and establishing policies and
principles for ensuring the availability of legal assistance to the needy.
Right not to be arrested at night

A mode of arrest is outlined in Section 46 of the Code of Criminal Procedure, 1973. A person is arrested if they are seized by
or touched by authorities to put them in prison. Unless the individual seeking to be arrested submits to the arresting officer’s
method and goes with the officer, the officer’s words do not constitute an arrest.
According to Section 46, the police have to seek permission from the Magistrate before arresting a lady after sunset, and the
arrest should be carried out by a lady police officer. A sub-section was added by the legislature to Section 46 of the Code by
Section 6 of the Code Of Criminal Procedure (Amendment) Act, 2005, to prohibit arresting a woman after sunset or before
sunrise except in unavoidable circumstances.

Right to register virtual complaints

An individual can file a complaint with the Delhi Police via email or registered mail, as per the Delhi Police guidelines. For
any woman who, for whatever reason, cannot visit a police station, she can make a written complaint by email or registered
mail to a senior police officer of the rank of Deputy Commissioner or Commissioner. As an added option, a rape victim can
lodge a police report at any police station using the Zero FIR. Police stations do not have the right to deny registering an FIR
because it does not fall within their jurisdiction.

Right to privacy while recording the statement

A woman who has been raped may record her statement before the district magistrate during a trial, as specified in Section
164 of the Criminal Procedure Code, 1973. No other witnesses must be in attendance while the statement is being recorded.
The statement may also be recorded with only one police officer and a female constable in a convenient location that does not
cause confusion or provide any possibility of a fourth person hearing the statement. Maintaining the privacy of the woman is a
legal requirement for the police. While narrating the incident, the person should be comfortable and not under stress in any
way.

Additional recommendations
Furthermore, additional recommendations have been made aimed at strengthening the legal entitlements of women in addition
to these existing legal rights:

Rape does not mean that a woman or her community loses their honour
After the Nirbhaya Gang-rape case, the Justice Verma Committee was created to recommend amendments to criminal laws
dealing with crimes against women. The committee recommended that rape should not be treated as a matter of dishonour
against the victimised woman or her family. Women often avoid bringing their offenders to justice due to shame and loss of
honour.

Women must have real consent, not only a lack of violence

According to the 84th Law Commission report, the victim’s consent cannot be obtained with violence. Real consent to any
sexual act must be obtained. The consent will not be considered ‘consent’ if it is obtained after the woman has been threatened
with spreading false stories about her or that her property would be destroyed or that her children or parents would suffer harm,
or if she has held out other threats of harm to her person, reputation, or property.

Marriage should be based on equality and respect for dignity

It was recommended by Justice Verma that a marital relationship between the perpetrator and victim is not a valid defence in
cases involving rape or sexual offences. The report recommends mandatorily registering marriages in the presence of a
magistrate (irrespective of the personal laws under which they are solemnized) as a first step. It will be the magistrate’s
responsibility to verify that no dowry demands are made and that there is full consent from both parties.

Women’s Rights Bill

According to the Verma Committee, women should be entitled to a Bill of Rights that guarantees that they have the right to
live in dignity and security, as well as the right to be sexually autonomous concerning their relationships.

CASE LAWS

Vindhya Saxena v. East Delhi Municipal Corporation (Right to use mother’s surname)
In Vindhya Saxena v. East Delhi Municipal Corporation (2021), the Delhi High Court stated that a father does not have the
right to dictate terms to his daughters, and each child may use their mother’s name as long as it is appropriate. During the
hearing, the court issued the directive in response to a petition from the father of a minor girl, who was seeking permission to
use his name as the daughter’s surname instead of her mother’s.
The judge declined the plea and refused to give a direction like this and claimed that the father does not own his daughter.
According to the judge, the minor girl can use her mother’s surname if she wishes to do so. It was held that every child has the
right to use his or her mother’s surname if he or she so desires.

Vineeta Sharma v. Rakesh Sharma (Equal rights in property)

The Supreme Court ruled in Vineeta Sharma v. Rakesh Sharma (2020) that daughters have an equal claim to Hindu property
in an undivided family. According to the court, this right is derived from birth. Daughters also enter the coparcenary when they
are born, as sons do. The proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005 provides that a daughter born
before September 9, 2005, can claim these rights with effect from the date of the amendment. In addition, the court clarified
that as the coparcenary right is by birth, the father of the coparcener didn’t have to be alive on September 9, 2005.

Secretary, Ministry of Defense v. Babita Puniya and Ors (Gender equality in the army)
As a result of its decision in the Secretary, Ministry of Defense v. Babita Puniya and Ors (2020), the Supreme Court has paved
the way for a new era of constitutional change in the Indian Army by shattering gender stereotypes. The court ruled that all
female army officers are eligible for command responsibilities as well as for permanent commissions. Further, the court stated
that the submissions presented by the Ministry of Defense were “supported by sexist stereotypes and assumptions about
socially attributed roles of gender which discriminate against women.”
In part, this statement reflects a strong stereotype, which assumes that domestic obligations rest exclusively on women.
According to the Court, such notions are flawed and violate Article 14 of the Constitution of India. Women officers are more
likely to face hazards of service as a result of their prolonged absence during pregnancy, motherhood, and family obligations.
It is important to commemorate this judgment, which led to gender equality in the armed services.

Kajal Mukesh v. the State of Maharashtra (Right to choose profession)

The Bombay High Court, in the case of Kajal Mukesh v. the State of Maharashtra (2020), concluded that prostitution is not a
violation of the Immoral Traffic (Prevention) Act, 1956. According to the Act, sexual abuse or exploitation of a person for
commercial purposes is punishable. During the trial, the court decided that an adult woman is entitled to choose her profession,
setting free three sex workers who had been arrested from a women’s hostel in the state of Uttar Pradesh.

Hina Haneefa v. Union of India (Right of transgenders)

The case Hina Haneefa v. Union of India (2020) involved the question of whether transgender individuals were eligible for
enlistment under Section 6 of the National Cadet Corps Act, 1948. Only males and females are eligible to enroll under
Section 6 of the Act. According to the Kerala High Court, such discrimination is against the state’s policy regarding
transgenders, and no one can be denied a legitimate right because they are a transgender. It had been ordered that the seat at the
NCC unit of University College in Thiruvananthapuram be left vacant until the matter is resolved.
The Supreme Court then directed the Central and State governments to legally recognize third genders, so they can identify as
males, females, or third genders. The Court ordered the government to take all necessary steps to provide health safety
programs and legal protection to the third-gender community. Moreover, it urged the government to remove the taboo that
revolves around the third gender from society.
The Supreme Court recognized that the third gender is equally recognized under the Indian Constitution, which advocates
equality before the law for everyone. An individual can self-recognize their gender, according to the court. Moreover, even
without a statutory basis, the third gender must receive complete recognition.

C. RIGHTS OF CHILDREN

Constitutional provisions which protect the rights of children in India

The constitution ensures the rights and protection of children through its various provisions. Children on the account of their
sensitive age and immature age need special care and protection. They have specific rights and legal entitlements that are being
recognized nationally and internationally. The constitution has recognized the rights of children to a great extent and included
many articles dealing with the compulsory and free education, liberty and development in childhood, non-discrimination in
educational spheres and prohibition of their employment in factories, mines and hazardous conditions.
The legal provisions are:-

ARTICLE 14 – RIGHT TO EQUALITY

According to this article, the State shall not deny to any person the equality before the law or the equal protection of laws
within the territory of India.
Citizen of India including children must be treated equally before the law and must be given equal protection by law without
any discrimination or arbitrariness. This right which is provided in the Indian Constitution protects the rights of children so that
their dignity and integrity as a child is not exploited. Children being vulnerable have more chance to be treated unequally in the
Indian society. Article 15 of the Indian Constitution prohibits discrimination. In Article 15(3), nothing in this Article shall
prevent the State from making any special provision for women and children. It is very clear from Article 15(3) that “special
provision” does not mean unequal treatment but it is established for the well being and development of the children in India.

ARTICLE 21A –RIGHT TO EDUCATION

According to this article, The State shall provide free and compulsory education to all the children of the age of six to fourteen
years in such manner as the State may by law, determine
The Constitution (Eighty-sixth Amendment) Act,2002 inserted Article 21A in the Constitution to provide free and compulsory
education of all the children in the age group six to fourteen years as a Fundamental Right. There have been many backlashes
in providing education to all the children in the state. There are many reasons for the same. The right to education is reflected
in in ternational law in Article 26 of the Universal Declaration of Human Rights and Article 13 and 14 International Covenant
on Economic, Social and Cultural Rights.
Most importantly these articles ensure education to all the children irrespective of religion, caste, gender and financial
condition. This article makes sure that no child is deprived of his/her basic education. Everyone shall be provided with
elementary education.

ARTICLE 24 –PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES

According to this Article, No child below the age of fourteen shall be employed to work in any factory or mine or engaged in
any other hazardous employment.
Hazardous conditions may include construction work or railway. This article does not prohibit and harmless work. This Article
provides the regulation and prohibition of child labour in India. Child Labour is defined as the work which deprives children of
their childhood, potential and their dignity; it is something which causes a threat to their physical and mental development.
UNICEF estimates India with such a high population has a high rate of child labourers. India, after its independence from the
colonial rule, has passed many constitutional protections and laws on child labour.

DIRECTIVE PRINCIPLES OF STATE POLICES

There have been many provisions in the Directive Principles of state policies which specify how the state is responsible for the
protection of rights of children.

ARTICLE-39 – Certain principles of the policy to be followed by the state.

Article 39(e) states that the health and strength of workers, men and women, and the tender age of children are not forced by
economic necessity to enter avocation unsuited to their age or strength.
Child Labour is one of the social evil that is forced by economic necessity; it is the responsibility of the state to ensure that no
child is subjected to any physical or mental abuse.

Article39 [1](f) states that children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment.
This provision also protects childhood and provides opportunities and facilities to grow with the safe explosion.

ARTICLE 45 This provision is for early childhood care and education children below the age of six years.
According to this provision, the State shall Endeavour to provide early childhood care and education for all the children until
they complete the age of six years. According to this Act of the Indian Constitution, the state shall protect the child and is
responsible for the development within them. The state shall ensure the safe growing environment, where their childhood can
be experienced by themselves without any external threat. After that, it is the responsibility of the state to provide them with
free and compulsory education
No matter how the condition of the child is, even if they are not protected by their own parents or they are denied with their
rights by their own parents. The State has to take strict measures for the well being of the child.

FUNDAMENTAL DUTIES
Fundamental duties refer to the basic obligations of a citizen in India. It contains about 11 duties which are to be followed by
the citizen of India.
It is defined as the moral obligation of all citizens to help promote a spirit of patriotism and to uphold the unity of India.

ARTICLE-51A(k) It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities to provide
education for his child or, as the case may be, ward between the age of six and fourteen years. Through this provision, the
Constitution strictly mentions the providing of education as the duty of the parent as it is for the future and development of the
country.
Landmark decision on the rights of children
Children by definition are unable to petition the court themselves, they have to rely on the parents patria role of the state. The
needs of the children were responded by the court through public interest litigation, in the conditions where some improvement
is significant like in institutions, prisons, illegal confinements, treatment of mentally retarded children and handicapped
children, child labour, child marriage, adoption, juvenile justice, prevention trafficking of young girls, the welfare of children
of the prostitutes, prohibition of corporal punishment in schools and sex-selection. There has been a decision made by the court
on almost all the matters which is related to a child. The court has seen the matters through the lens that all the decisions made
were concerned and made for the children all over the country.

M.C Mehta v. State of Tamil Nadu

The judgment passed states the direction to prohibit child labour in hazardous conditions; the petitioner was concerned about
the high rate of child labour in hazardous conditions in the Match factories of Savakis in Kamraj district of Tamil Nadu. The
judgment gave out the visions of the constitution and also linked between child labours with poverty, the judgment also stated
that there has been no proper eradication of child labour by the state,

Sanjay Suri v. Delhi administration

The court laid down orders to transfer some guilty officers and laid down the rules to protect children in jails. Juvenile
undertrials were the subject of Sanjay Suri’s petition. Many children were sent to jail despite the prohibition in the children’s
Act. The Juvenile were kept together with habitual and other adults where they were brutalized and made to do undesirable
tasks,

Gaurav Jain v. Union of India

The Supreme Court held that segregating the children of prostitutes would not be in their interest. The Supreme Court held that
the children of the prostitute have the right to equality of opportunity, dignity, care and protection and rehabitalised so as to be
a part of the mainstream of social life without any pre-stigma attached on them.

Vishal Jeet v. Union of India

Several directions were issued to end the sexual exploitation of children. The court issued directions to the state government to
set up rehabilitation homes for the children found begging in the streets and also minor girls pushed into ‘flesh trade’ to
protective homes.

Sheela Barse v. the Secretary Children’s Aid Society & Ors

The petition was filed in public interest with regard to improper functioning of childcare institution in Mumbai, The Supreme
Court directed that in no case should a child kept in jail and a central law must be enacted to bring uniformity in the juvenile
justice system.

Kishan Pattnayak v. State of Orissa

Poor people were forced to sell children to buy food. The Orissa government was compelled to take several welfare actions.
The petitioner wrote a letter to the Supreme court of India bringing to the court’s notice the extreme poverty of the Kalahandi
in Orissa where hundreds of people were dying due to starvation as a result they were forced to sell their children. This case
has taken the issue of the lack of food and poverty. In this judgment, the Supreme Court took significant steps in implementing
irrigation projects in order to reduce drought and certain measures were taken in order to ensure fair selling prices.

Sarita Sharma v, Sushil Sharma

The court held that in the issue relating to custody of children, paramount consideration should be given to the welfare of the
children.

Unnikrishnan J.P &Ors v. State of Andhra Pradesh

The court held that the right to education is implicit in the right to life. The Judgment on
This case expanded the Right to education being enshrined to Right to Life. In 2002, by the 86th Amendment of the
Constitution inserted Right to Education within Right to life.

National Commission for the Protection of Child Rights

The Ministry has enacted the Commission for Protection of Child Rights Act (CPCR), 2005 extending over India except for
the state of Jammu and Kashmir under which the National Commission for the protection of Child Rights is mandated to
function for the protection and promotion of child rights.
The Commission inquiry into the complaint and take sue moto notice of matters relating to-

1. Deprivation and violation of child rights.

 2. non-implementation of the laws providing for the protection and development of children;
3. Non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring the
welfare of the children and provides relief to such children.

D. RIGHTS OF LGBT AND QUEER COMMUNITY

As of today, community members do not enjoy any special legal rights. They are only “permitted” by law to engage in
consensual sexual intercourse as criminalising it would be against their Fundamental Rights. The scope of their rights, thus, is
limited to any basic Fundamental Rights that are enjoyed by individuals in this country. Civil rights, on the other hand, are not
something that members of the community enjoy as yet. They are not legally permitted to register their marriages, which
means that their marriage is not recognised by Indian laws. A couple in Kerala, both of whom belong to the LGBT community,
got married and attempted to register their marriage under the Special Marriage Act, 1954 in January 2020. However, the
District Administration denied permission to register the marriage stating that the law did not permit them to marry. Although
the Special Marriage Act, 1954 does not explicitly deny permission to the registration of marriage of community members, it
also does not explicitly mention the permission to do so. Thus, the scope of the civil rights of the community members has a
long way to go in India.

The rights for protection against crimes, also, do not throw any light on specific crimes committed against the community
members. Crimes, especially those of domestic violence and sexual harassment, which are unfortunately often faced by
community members are not only difficult to report but also not possible to report in some case because the law is silent on
extending the same rights to transgender persons and men, who may be affected as well. For instance, the Protection of
Women from Domestic Violence Act, 2005 only focuses on women and minors and does not extend to men, transgendered
persons, or persons who prefer to remain gender-neutral.

The Transgender (Protection of Rights) Bills of 2016 and 2018 was an attempt to provide transgender persons with specific
legal rights depending on their needs. However, the Bills faced severe backlash, especially from people belonging to the
community. Some of the provisions simply did not satisfy the needs of the community. There are provisions that already exist
in the legal framework for the protection of rights of cisgender women, which provide a greater punishment than those
suggested in the Bills, such as the punishment for sexual harassment. Questions were raised as to where the difference lay
between the rape of any person of any gender. Several felt that the Bills were discriminatory and thus unconstitutional in
nature. Following this, the Transgender (Protection of Rights) Act, 2019 was passed and came into effect in January 2020.
Although much has been done to improve the social status of the LGBTQ+ community, their legal rights still need much
attention especially since the current legal framework does not provide the specific protection that they require.

The first major victory of the community came with the Delhi High Court judgement of Naz Foundation vs Government of
NCT of Delhi (2009). Naz Foundation is an NGO that filed a lawsuit before the Delhi High Court with the view to
decriminalising Section 377 in the cases of consenting adults. However, the Delhi High Court had initially dismissed the
petition on the ground that the NGO had no locus standi. However, the Supreme Court, after having heard Naz Foundation’s
appeal in the same case, decided that the NGO could file public interest litigation before the High Court.

This case was filed before the Delhi High Court in 2001. Eight years later, on 2nd July 2009, the Delhi High Court gave its
decision in the matter. According to the Court, the Right to Equality under Article 14 of the Indian Constitution was not being
upheld due to the provisions of Section 377 against homosexuals as a group. The Section was struck down partially:
consensual intercourse between adults in private was no longer a criminal offence. The judgement also stated that it would be
applicable until an amendment was made by the Parliament. Here, Section 377 was not completely struck down, since it deals
with various aspects of “carnal intercourse”. Unfortunately, not long after, the decision was struck down by a two-judge bench
in the Supreme Court of India.

The setback of 2013

In December 2013, the Supreme Court overturned the decision made in Naz Foundation vs Government of NCT of Delhi by
re-criminalizing Section 377 wholly.
This was done in the case of Suresh Kumar Kaushal vs Naz Foundation. The Court held that the High Court of Delhi in its
judgement had erroneously depended on international movements and decisions and reasoned that only a minuscule percentage
of the community was a part of the Indian population. The Court went on to say that there was no need for judicial intervention
by the Delhi High Court in the matter and that the Section in itself was never unconstitutional. The Court, however, did note
that the Parliament should look into the matter.
This was a major setback for the community and several voices rose against the decision of the Supreme Court. In 2017, there
were several curative petitions filed against this judgement and the Supreme Court gave its final decision on September 6,
2018, which is a landmark judgement as of today.

The 2018 leap

Navtej Singh vs Union of India – A five-judge bench gave a unanimous decision on September 6, 2018, according to which
Section 377 was declared unconstitutional in the eyes of the law. The Fundamental Rights under Articles 14, 15, 19,
and 21 had all been violated by the existence of such a provision of law that criminalised consensual sexual intercourse
between adults. The Court further went on to state that the community members are all entitled to all the rights as under the
Constitution including equal citizenship and protection without discrimination.
It is important to note here that Section 377 continues to exist as it also addresses other aspects such as those of non-consensual
sexual acts, sexual intercourse with minors, and bestiality.
These are the major cases that have helped in ascertaining and shaping the legal and social viewpoint towards the LGBT
Community in the past years. Fortunately, the LGBT community has been promised the basic Fundamental Rights and
protection under the Constitution. However, much needs to be done in order to improve the legal rights of the community
members in both civil and criminal cases.

New legal petitions

There are two major legal petitions brought before the High Courts and Supreme Courts in India post the September 2018
Judgement of Navtej Singh vs Union of India.

Petition for civil rights

A petition was filed before the Supreme Court in 2019 seeking civil rights for members of the LGBT community. It was in the
form of a review petition and sought to ask questions regarding the right to marriage, adoption, and other civil rights and their
inclusion in the Navtej Singh vs Union of India judgement of 2018. The bench, however, said that they were not inclined to
entertain the petition post the judgement of 2018.
The petition did raise a number of aspects and questions of law regarding the basic human rights of members of the LGBT
community. However, these are complex issues and need to be dealt with in a sensitive manner. The Supreme Court dismissed
the petition, leaving some dissatisfied. However, a number of activists and community members are looking forward to
tackling such issues on a long term basis and will not let this dismissal hinder their dedication.

Petition for registration of marriage

In January 2020 a homosexual couple approached the Kerala High Court demanding the recognition of same-sex marriages.
According to the writ petition filed, some of the provisions of the Special Marriage Act 1954 pointed towards a situation in
which only a bridegroom and bride may get married, thereby denying the right of marriage to homosexual couples and other
members belonging to the LGBT community. The Act does not in any outright manner deny registration of same-sex
marriages but there are undertones in the language of the Act that suggests a heterosexual union only. The couple that came
forth with the writ petition had married in 2018 but were not permitted to register their marriage under the Special Marriage
Act, 1954 which created several other problems for them, such as the creation of a joint bank account and in the filing of
Government papers.
The plea further states that the non-recognition of same-sex marriage violates the principles of equality, individual dignity, and
personal autonomy.
The judge in the case has notified the State and Central Government and has agreed to examine the plea of the couple. This is a
major step forward in the legal process for the members of the LGBT community at large. Although same-sex marriage is
recognised in several countries across the globe, Indian community members only view it as a distant dream. However, now
there is a chance that this dream may turn into a reality sooner than later. Although the final decision of the Hon’ble High
Court is yet to be given, one may hope for a positive outcome from the same.

E. RIGHTS OF PERSON WITH DISABILITY

The Rights of Persons with Disabilities Act, 2016 was enacted by Parliament in the year 2016. It replaced the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Indian Government set up
the Rehabilitation Council of India in 1986 with the aim of facilitating the rehabilitation of disabled people. Furthermore,
the National Policy on Disability was adopted in 2009. This comprehensive policy focuses on critical areas such as education,
employment, social security, etc., for the disabled.

Objectives of Rights of Persons with Disabilities Act, 2016

  The primary objective of the Act is to ensure that disabled people enjoy their right to equality and are able to live
a dignified and respectful life.
 The Preamble of the Act provides that it is aimed at protecting disabled people from all sorts of discrimination.
The Act seeks to ensure the full social, political, and economic participation of disabled people.
 This Act promotes inclusive education and provides employment safeguards for disabled people. Thus, it aims at
empowering disabled people through inclusive growth and active societal participation.

Rights of disabled persons

Chapter II of the Act deals with the rights of disabled people. Disabled people have been conferred with the following rights:

1. They have a right to equality and protection from discrimination. They cannot be discriminated against due to
their disability. The appropriate government is responsible for ensuring that the dignity and integrity of the
disabled persons is not violated.
2. The disabled persons have a right to live in the community and the government is responsible for protecting them
from being forced into living in any specific arrangement.
3. The disabled persons enjoy equal rights and cannot be forced into undergoing infertility medical procedures.
4. The Central as well as the state elections commissioners are responsible for ensuring that the polling booths are
accessible to disabled people.
5. The disabled persons are to be protected from violence and exploitation. They cannot be subjected to any
degrading or cruel treatment. Disabled people cannot be forced to be the subject of research without their consent.
In case of any natural disaster or emergency, they have equal rights to safety and protection. Section 7(2) of the
Act provides that if any registered organization believes that an act of violence or abuse is likely to be committed
against a disabled person, then the registered organization must give such information to the Executive Magistrate
having the requisite jurisdiction.
6. Section 38 of the Act provides that where a person suffering from benchmark disability believes that he is in need
of high support, he can make an application for such high support to the notified authority. An application in this
regard can also be made by any other person or organization on behalf of the disabled person. Such an application
is to be forwarded to the Assessment Board, which will assess the application and submit a report to the
concerned authority. The disabled person would then be provided high support on the basis of the report and the
relevant government schemes.
7. The Act also provides that if an employee acquires a disability while he is in service, he may not be dismissed or
removed from employment. He may be transferred to another suitable post but the pay scale cannot be reduced.

Educational safeguards
Imposes a duty on government funded educational institutions to provide inclusive education to disabled children. Educational
institutions are prevented from discriminating against children suffering from disabilities and are required to provide
education, sports and recreation facilities to the disabled children, provide them with reasonable accommodation, make the
campus more accessible to them, ensure that dead and blind children are imparted education using appropriate means of
communication and suitable pedagogic means, provide them with transport facilities and monitor their participation and
progress.
Section 17 aims at promoting inclusive education. It provides that the government and the local authorities are responsible for
setting up training institutes and for training staff and professions on how to promote inclusive education. Children with a
benchmark disability are entitled to free books and other learning materials until they attain the age of 18 years.
Section 32 provides for a 5% reservation in all government higher education institutes and those educational institutes that are
beneficiaries of government funds.

Vikash Kumar v. Union Public Service (2021)

In the landmark case of Vikash Kumar v. Union Public Service Commission & Ors. (2021), the appellant, who suffered from
writer’s cramp, was denied scribe during the civil services examination. The appellant had applied for a disability certificate at
the Ram Manohar Lohia Hospital, Delhi, but the certificate was refused. The appellant then appealed before the Central
Administrative Tribunal, but his appeal was dismissed. The appellant then approached the Delhi High Court and, in the
meantime, obtained the disability certificate. The appellant then approached the Apex Court, and the Court directed AIMS to
constitute a board and submit a report on the appellant’s condition. The report stated that the appellant was a person with a
disability, but he did not suffer from a benchmark disability.
The primary contention of the appellant was that he was entitled to a scribe due to his medical condition.

Observations of the Supreme Court

  The Court primarily noted that, as per government guidelines, only people suffering from benchmark disability
are entitled to have a scribe during an examination. However, the Ministry of Social Justice and Empowerment,
which is the nodal agency for the enforcement of the provisions of the Act, recognised that there might be other
medical conditions which could hinder the writing ability of the candidate and hence, left it at the discretion of the
examination agency to decide on the grant of scribe or other such facilities.
 Thus, the existence of benchmark disability was not a precondition to the grant of scribe, extra time or other
similar facility.
 The golden triangle, comprising Articles 14, 19, and 21 provides protection to disabled people. The Constitution
promises full and complete citizenship to disabled persons and the Persons with Disabilities Act, 2016 merely
operationalizes this promise.
 It is essential but not sufficient to merely ensure that disabled people are not subjected to discrimination.
Additional support and facilities must also be provided to disabled people.
 The Court then referred to the principle of reasonable accommodation and stated that the State has a positive
obligation to provide additional facilities to disabled people to ensure that they enjoy full participation in society.
 The Court noted the judgment of V Surendra Mohan v. State of Tamil Nadu (2019), where the Apex Court upheld
the Madras High Court’s judgment, stating that a person suffering from more than 50% visual or hearing
impairment would not be eligible to be considered for the post of a judicial officer. The Court observed that the
Surendra Mohan judgment was based on the Persons With Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 and did not consider the principle of reasonable accommodation. Thus, the
Surendra Mohan judgment could not be a binding precedent.
 The Court thus concluded that since the appellant suffered from a disability which made it difficult for him to
write, denying him a scribe would defeat the purpose of the Act.

State Of Kerala v. Leesamma Joseph (2021)

In the case of State of Kerala v. Leesamma Joseph (2021), the issue arose before the Apex Court that whether the disabled
persons were entitled to reservation in promotion. The Court interpreted the provisions of the 1995 Act and 2016 Act while
deciding the issue. The Court held that disabled people are entitled to reservation in promotion under the scheme of the 1995
Act.
The Court further noted that while it is easier to enact legislation, changing the social mindset of people to give effect to the
good intentions of the legislation in the true sense is a difficult task. The intention of the 1995 and 2016 Acts is to ensure that
disabled people are provided with equal opportunity, and such an opportunity can be provided only by granting them
reservation in promotion as well. Section 20(2) of the Act mandates every government establishment to provide “reasonable
accommodation” and a conducive environment for disabled people.
The Court concluded that disabled people are entitled to reservations in promotion.

Disabled Right Group v. Union Of India (2017)

In the case of Disabled Right Group v. Union of India (2017), a public interest litigation was filed before the Apex Court to
look into the non-implementation of reservation provisions for disabled people, to ensure that full access was provided to
people suffering from orthopedic disability so that they can move freely throughout the educational institutes and to ensure that
effective steps are taken to provide adequate pedagogy facilities to the disabled students.
The Court commented on the fundamental premise of the 2016 Act and said that the Act was based on the idea that there are
barriers and hindrances created by society which impede the disabled persons’ progress. The Act aims at ensuring that disabled
people are provided with sufficient opportunities to enable them to realize their full potential. In order to achieve this objective,
it is essential to provide fruitful education to the disabled persons by making the buildings, libraries, labs and other facilities
accessible to them.
The Court noted that the 1995 Act provided for a minimum of 3% reservation for disabled persons in government aided
educational institutions. The 2016 Act only widened the scope of the welfare provisions, and Section 31 provides for the free
education of disabled children from 6 to 18 years of age. This right is wider in scope as compared to the right granted under
the Rights of Children to Free and Compulsory Education Act, 2009. Disabled people not only have the right to have a
minimum education but also the right to higher education.
The Court thus ordered that all educational institutions must comply with the reservation provisions of the Act. The UGC and
the Bar Council of India (in case of law schools) were directed to conduct inspections to ensure that the educational institutions
comply with the reservation provisions.

Union of India & Anr. v. National Federation of the Blind (2013)

In the landmark case of Union of India & Anr v. National Federation of the Blind (2013), the Supreme Court made several
important observations with regards to the reservation for disabled persons. The Court made the following observations:

 Employment is essential to provide full participation, empowerment, and inclusion of disabled people. The
primary reason for the joblessness of disabled people is not functional disability but the artificial social barriers
that hinder their growth.
  The 50% ceiling limit on reservations set by the Indra Sawhney v. Union of India (1992) judgment applies only to
reservations in favor of Other Backward Castes and not in case of reservations for disabled persons.
 The Central Government and the state governments are under an obligation to provide welfare measures for
disabled persons. This obligation is based on the Constitutional provisions as well as the international treaties to
which India is a party.

Avni Prakash v. National Testing Agency (2021)

In Avni Prakash v. National Testing Agency (2021), the primary contention of the petitioner was that she was entitled to
reasonable accommodation as she had been diagnosed with 40% permanent disability and suffered from dysgraphia and thus
fell within the criterion of benchmark disability. However, when she appeared for the National Eligibility and Entrance Test
(NEET), she was denied the relaxation that she was entitled to in terms of the Guidelines on Written Examinations which are
issued by the Ministry of Social Justice and Empowerment.
The Court observed that the National Testing Agency (NTA) was bound to follow the Guidelines on Written Examination. The
appellant was not provided with the statutory facilities because the designated examination center was unaware of the
provisions of the Act. It was the responsibility of the NTA to ensure that all the designated centers were aware of the
provisions made for disabled people. The Court further observed that the right to equality and reasonable accommodation
cannot be denied to disabled people by treating the existence of benchmark disability as an essential prerequisite.
Where the rights have been conferred on disabled people by the statute, they cannot be diluted. The Court thus concluded that
the reasonable accommodation provisions provided in the Act are mandatory and form the pillar of equality and non-
discrimination. The provisions with respect to disabled people must be published in the NEET bulletin. A higher threshold for
benchmark disability cannot be used to deny the statutory rights to the disabled persons.

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F. RIGHTS OF PRISONERS AND PRISON REFORMS

As mentioned earlier, the rights of the prisoners have been a developing one. From the case of Platek v. Aderhold (USA) where
the courts ruled that it has no power to interfere with the conduct of prison or its rules and regulations to the case of Johnson v.
Avery wherein the court recognised certain rights of the prisoners, the change has been a progressive one. In the Indian sphere,
the judiciary of the country has invoked Fundamental Rights of the Constitution repeatedly to the rescue of the prisoners. In
the famous case of Charles Sobraj through Marie Andre’s v. The Superintendent, Tihar Jail, the Supreme Court Judge Justice
Krishna Aiyer held that:“..imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal,
Courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen”.
He further stated that the imprisonment of a prisoner is not merely retribution or deterrence but also rehabilitation.

Rights of Prisoners
As emphasized earlier, the conviction of a human does not render him non-human. He still remains a human who should be
treated like one. He should be given the basic human rights available to every man walking on the earth. But at the same time,
he should not be treated as a free man with all absolute rights and luxuries. His freedom should be subject to certain limitations
and legal restrictions. These restrictions, in addition, should be reasonable.

The apex court of the USA in the case of Charles Wolff v. McDonnell and the Supreme Court of India in its famous cases
like DBM Patnaik v. State of Andhra Pradesh and, Sunil Batra v. Delhi Administration has emphatically stated that it must be
realised that a prisoner is a human being as well as a natural person or a legal person. If a person gets convicted for a crime, it
does not reduce him to the status of a non-person whose rights could be snatched away at the whims of the prison
administration. Therefore, imposing any major punishment within the system of prison is conditional upon the absence of
procedural safeguards.

The Supreme court of India has been deliberating with the central and state governments since a long time to improve the
deteriorating condition of the prisoners which is fundamental because of the overcrowding of prisons, lack of training
facilities, personnel and poor infrastructure, etc. Therefore, it is mandatory to invoke the rights and constitutional safeguards of
the prisoners. Such rights of, unless they are propagated and implemented in each corner and the entire perimeter of the prism,
are a nullity and betrayal of human faith on the criminal justice delivery system.

Fundamental Rights
Fundamental rights form the core of human rights in India. They are the basic rights of the citizens which cannot be taken
away under any circumstances. The law of the country also guarantees some of these rights to the prisoners too like Article
14, 19, 21. However, it cannot impose the fundamental rights in its full panoply to the advantage of the prisoners. Giving
prisoners Right to Fair procedure forms the soul of Article 21. Levying reasonableness in any restriction is the essence
of Article 19(5) and sweeping discretion degenerating into arbitrary discrimination is anathema for Article 14. All of these
statements are supported by various judgments of the lower courts and the higher court. Some of them are listed below.

Case Laws

1. In the case of the State of Andhra Pradesh v. Challa Ramkrishna Reddy, the court held that a prisoner is entitled
to all the fundamental rights unless curtailed by the constitution.
2. In State of Maharashtra v. Prabhakar Pandurang Sanzgir, the Supreme Court stated that the mere fact that
someone is detained cannot deprive one of his fundamental rights and that such conditions are not to be extended
to the extent of the deprivation of fundamental rights of the detained individual. The Court further ruled that every
prisoner retains all such rights that are enjoyed by free citizens except the one that is lost necessarily as an
incident of confinement.
3. In Charles Sobaraj v. Supdt Central Jail Tihar, it was ruled that all the rights available to prisoners under Articles
such as 14, 19 and 21 are though limited but cannot be said to be static. They are bound to or rather will rise to
new human heights when challenging circumstances arise.

Right to Privacy
The Right to Privacy is one of the very significant rights available to the citizens of India. They form an intrinsic part of Right
to Life and Personal Liberty under Article 21 of the Indian Constitution. They have also been made applicable to the prisoners
and convicts through various judgements passed by courts over the years.

In India, however, this right is perhaps the most violated. The right to privacy in respect to search and seizure was first raised
in the 1950s, where the apex court ruled that search and seizure cannot be seen as violative of Article 19 (1)(f) of the Indian
constitution and a mere search by itself does not nullify or harm an individual’s right to property. Even if search or seizure
affected such right then its effect is temporary and is to be construed as a reasonable restriction on the rights of individuals.

In the case of Rohit Shekha v. N.D Tiwari, the court held that nobody should be compelled to be subjected to any techniques in
question at any circumstances, even when it is in the context of an investigation in a criminal case. Proceeding with such acts
would result in an unwarranted intrusion into an individual’s personal liberty. It is equally important that adequate space is
provided for the voluntary administration of the impugned techniques in the context of criminal justice on conditions that
certain safeguards are in place. The court also did a brief examination of the jurisprudence that permits compulsory testing or
involuntary drawing of samples and stated that judicial precedents in such cases emerge in criminal prosecution related to
serious offences like those involving narcotic substances, manslaughter, murder or sexual offences. In all of these cases, the
court has carefully weighed the interest of justice in the context of public policy and privacy of an individual while examining
the permissibility of compulsory testing.

Right against solitary confinement and bar fetters

Solitary confinement is a kind of imprisonment in which the convict or prisoner is kept in a different cell with little or no
contact from other inmates. In addition to that strict monitoring is done on the habits and behaviour of the person. The idea
behind solitary confinement is to teach notorious convicts discipline and provide safety to other inmates from them.
The validity of solitary confinement was considered by the Supreme Court in the famous case of Sunil Batra v. Delhi
Administration wherein the honourable court highlighted that imposition of solitary confinement is only to be made in
exceptional cases where the prisoner is of such violent or dangerous nature that his segregation becomes an utmost necessity.
The court also observed that keeping prisoners in bar fetters day and night reduces them to the level of an animal and
deteriorates their mental health. The courts, therefore, have presented strong resentment against solitary and stated its
confinement as highly dehumanizing and derogatory in nature. They have also held such confinements to be against the spirit
of the Constitution of India.

Right to Life and personal liberty

The Hon’ble Supreme Court has repeatedly applied the rule of Article 21 in numerous cases and asserted its significance in
several other. It has expanded the connotation of the word “life” given by Field J. in the much-known case of Kharak Singh v.
State of UP. In the said case, the court ruled that the term “life” connotes more than mere existence like that of an animal. The
inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally
prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye or the destruction of any
other organ of the body through which the soul communicates with the other world. It can be said that right to live is not
restricted to a mere animal existence. It connotes something more than just the physical survival of a being.

Right to live with human dignity

The right of a human being to live with dignity is protected by the constitution. This right is also given to the prisoners as their
mere conviction does not render them inhuman. This right forms a significant part of right to life guaranteed under the
constitution of India. The idea behind is that every person’s life is precious and irrespective of the circumstances, he should be
given a sense of dignity to help him continue living. The courts have enlarged the scope of Article 21 to include this right. Its
occurrence could be noted in many cases. Some of them are enumerated below:

Case Laws

1. In the case of Maneka Gandhi v. Union of India, the apex court propounded a new dimension of Article 21
wherein it stated that “right to life or live” does not confine itself to mere physical existence but also includes
right to live with human dignity.

1. Further, in Francis Coralie v. Delhi Administration, while expanding the aforementioned concept, the court held
that the word ‘life’ includes everything that it goes along with it, namely the bare necessaries of the life such as
adequate nutrition and food, clothing and shelter over one’s head, facilities for reading, writing (education),
ability and opportunity of expressing oneself in diverse forms, moving freely, mixing and commingling with
fellow human beings.
2. Thereafter, the apex court in Pandit Parmanand v. Union of India expanded the concept of “life” and ruled that
the word “life” is not just limited up to the period of death but even after that. Therefore, when a person was
executed with the death penalty (as in this case) but the dead body was not lowered even after half an hour, in
spite of the fact that the doctor already gave the death certificate, the court held that it amounted to a violation of
Right to life under Article 21. It can be concluded that Right to live continues even after death and includes in its
ambit the right to proper handling of the dead body or right to a decent burial.
3. The Supreme Court in State of Andhra Pradesh v. Challa Ramakrishna Reddy held that the right to life is one of
the basic human rights which is guaranteed to every person by Article 21. It is so fundamental that even the State
has no authority to violate it. A prisoner does not cease to be a human being even when lodged in jail. He
continues to be a human and therefore is entitled to enjoy all the fundamental rights including the right to life.

Right to health and medical treatment

Right to health is an important right. The Constitution of India incorporates provisions guaranteeing every individual the right
to the highest attainable standard of physical and mental health. In a series of judgements, the highest court of the land has held
that the right to health care is a crucial element of Article 21. Article 21 of the Constitution imposes an obligation on the State
to safeguard an individual’s life.

In the case of Parmannd Katara v. Union of India, the court held that a doctor working at a Government hospital is bound by
duty to extend any type of medical assistance for preserving life. In fact, every doctor has a professional obligation of
extending his services to the patients (be it anyone) with due diligence and expertise in order to protect his life. Therefore, any
legal body cannot intervene to cause a delay in the discharge of obligations and duties cast upon the members of the medical
profession. The court also reiterated in Paschim Bengal Khet Mazdoor Samiti v. State of West Bengal, that a government
hospital cannot deny any patient the right to treatment on the grounds of non-availability of beds. Doing so would amount to a
breach of Article 21 that highlights the ‘right to life’. This article imposes strict obligations on the State to make available the
necessary medical assistance to an aggrieved person as protection of human life is of utmost significance

The Gujarat High Court in Rasikbhai Ramsing Rana v. State of Gujarat held that the right to medical treatment is one of the
basic human rights that should be made available to every person. The court further guided the concerned jail authorities to
take proper mental and physical health care of the prisoners which were suffering from any type of disease.
The same court, in a suo moto writ, issued guidelines to the Central government to equip all Central and District jails with
facilities such as ICCU, pathology lab, proficient doctors, sufficient staff including nurses and latest instruments for medical
treatment.

Right to a speedy trial

It is very well said that justice delayed is justice denied. Every prisoner has a right to a speedy trial irrespective of the crime he
is convicted of. Speedy trial is considered as an integral part of the criminal justice delivery system. Once a person is accused,
he must be subject to speedy trials so as to punish him from the crime he committed or absolve him from it, if not proven
guilty. No one should be subject to long, pending and tiresome trials as it not only violates the rights of an individual but is
considered to be the denial of justice altogether. The right to a speedy trial, therefore, has become a universally recognized
human right. Moreover, the right to a speedy trial is also contained under Section 309 of the Code of Criminal Procedure. If
this provision of the Cr.PC is followed and implemented in its true spirit, all the grievances and queries of prisoners could be
resolved

Right to legal aid

Legal assistance plays a significant part in the life of an accused awaiting trial or any prisoner or convicts, for that matter.
The 42nd Amendment to the Constitution (1976) of India incorporated services of free legal aid as Article 39A under the head
Directive Principles of State Policy. Though this article is part of the directive principles of state policy and hence, not
enforceable, the principles underlined therein are of utmost importance. It is incumbent upon the State to keep this article in
mind while framing rules and regulations for prisoners, criminals or convicts.
The parliament has enacted the Legal Services Authorities Act in 1987 wherein it guaranteed legal Aid. It also directed various
state governments to set up Legal Aid and Advice Boards, and frame schemes aiming to provide Free Legal Aid. This was
done so that the Constitutional mandate of Article 39-A could be given an effect. If we look into the jurisprudence of Indian
Human Rights, it can be said that legal aid is of wider dimension and it is available in civil, administrative or revenue cases
other than just criminal cases.

Right against Inhuman treatment

It is the right of every prisoner to be protected against any type of cruel or inhuman treatment. The Supreme Court of India in
several cases has highlighted the harsh treatments faced by prisoners and directed state and prison authorities to check and
regulate the same. The court also prohibited the use of instruments such as handcuffs, chains, irons and straitjackets in
punishing the prisoners. Some other instruments of restraint are permissible but only under certain circumstances. These
circumstances are mentioned hereunder:

1. Using instruments of restraint for precaution during the transfer of prisoners against escape, conditional upon the
fact that it shall be removed while producing the prisoner before an administrative or judicial body.
2. If the medical officer permits the same on certain medical grounds;
3. In cases wherein it is difficult to prevent a prisoner from self-harm or damaging the property around, the director
in consultation with the medical officer and after reporting the higher administrative authority may order the
prisoner to be put in instruments of restraint.
The patterns and manner of use of instruments of restraint shall be decided by the central prison administration. Such
instruments must not be applied for any longer time than is strictly necessary.

1. In Sunil Gupta v. the State of MP, the petitioners had voluntarily surrendered themselves. They even refused to
bail out and decided to stay in prison for the cause of public good. Even though they were put in handcuffs and
taken to court by the escort party. The court expressed that the act done by the escort party was inhuman in nature
and violative of Article 21 of the Constitution. The court also directed the government to take immediate and
appropriate action against the defaulting escort part for having acted unjustly and unreasonably in handcuffing the
prisoners.
2. In the case of Kadra Pehadiya v. the State of Bihar, the court expressed its anger at seeing four petitioners who
were merely undertrial prisoners awaiting their trial chained in leg irons. The court ruled that such acts are gross
violations of all prison regulations and of the guidelines set by the court in the case of Sunil Batra. The court
thereafter directed the Superintendent to remove leg irons from the feet of the four petitioners immediately. The
court also directed that no convict or undertrial prisoner shall be kept in leg irons except in accordance with the
ratio of the decision of Sunil Batra’s case.

Right to Education
Right to education is a Fundamental Right and therefore it should be given to every citizen of the country. Along with
education, it is compulsory that the right type of education should be imparted. In Mohammad Giasuddin v. State of AP, the
court tried to regulate the manner of work and education provided to the inmates of the jail. It directed the state government to
look into the nature of work and education given to the prisoners and check that the work provided is “not of a monotonous,
mechanical, intellectual or like type mixed with a title manual labour…”. The court further stated the facilities of liaison
through correspondence courses must also be given to the prisoners who are interested in doing higher or advanced studies.
Moreover, basic learning such as tailoring, embroidery, doll-making should be extended to the women prisoners. In addition to
that, the well-educated prisoners should be given the opportunities to engage in some sort of mental-cum-manual productive
work.

Right to receive books/magazines

In George Fernandes v. State, the court took cognizance of the case wherein the Superintendent of the Nagpur Central Jail had
fixed the number of books to be allowed to the inmates to be 12. However, the power to take such decisions was not vested in
him, though being a superintendent he could disallow a book terming it as “unsuitable”. This was stated in consonance with
the Bombay Conditions of Detention Order, 1951.
The court further added “all the restraints on liberty, that no knowledge, learning and pursuit of happiness is the most irksome
and least justifiable. Improvement of mind cannot be thwarted but for exceptional and just circumstances. It is well known that
books of education and universal praise have been written in prison cells.”

Right to publication
The Supreme court held in a case wherein the prisoner was not allowed to read a scientific book that there was nothing in the
Bombay Detention Order, 1951 that prohibits a prisoner from writing or publishing a book. It stated that the book prisoner
wanted to read was merely a work of science, (“Inside the Atom”) and it could not be regarded as detrimental to public interest
or safety as provided under the Defence of India Rules, 1962.
Further, in State of Maharashtra v. Prabhakar Pandurang Sanzgir wherein an accused detained under preventive detention
was not allowed to hand over his unpublished book to his wife for publication, the court termed such an act as violative of
Article 21.
In yet another case of Rajgopal v. State of Tamil Nadu, the Supreme Court held that there was no authority in law that could
priorly deny the permission to publish the autobiography of Auto Shanker (prisoner) under the fear or impression that it would
cause defamation of prominent IAS and IPS officers. The concerned officials can take action after the publication and only if
the publications are false.
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G. RIGHTS OF SENIOR CITIZENS

Senior citizen is a word used as a substitute for an old aged person. Senior citizen is generally referred to the persons who have
passed through the retirement period or is a pensioner. The retirement period varies in the workplace depending upon the
retirement policy of countries.

Senior citizens age in India

When a person who is a citizen of India and has attained the age of sixty years or more irrespective of the job status, is
considered to be “senior citizen of India”

Article 25 UDHR
Article 25 of the Universal Declaration of Human Rights says that every person who is subjected to unemployment, sickness,
disability, widowhood, old age

Human rights of older people

 The Right to life of older people is to be safeguarded by law.

 The older people are entitled to Right to Liberty, which means that every citizen of India should live his life full
of liberty.
 The older people are entitled to Right not to be subjected to inhuman treatment, which means that every senior
citizen of India should not be treated inhumanely.
 The older people are entitled to Right to a fair hearing, it means that the tribunal should efficiently look into the
matter and give a verdict free from malice.

Senior Citizen Act 2017

The Senior Citizen Act 2017 was enacted in the year 2007 and it was initiated by the Ministry of Social Justice and
Empowerment, Government of India. The objective behind the enactment of this act was to provide justice and maintenance to
the senior citizens as well as to look after the welfare of the senior citizens. It aims to protect the life and property of senior
citizens. This Act provides shelter for old aged people as old age homes.

Maintenance of Parents and Senior Citizens

The Senior Citizen Act 2017 provides maintenance to the senior citizens as well as parents, who are not able to meet up their
cost of living. Under The Senior Citizen Act 2017, children, grandchildren as well as relatives are under obligation to look
after the maintenance of their parents (father, mother, or both), grandparents.
Any person who was not entitled according to the provisions as mentioned in The Senior Citizen Act 2017, can seek the help
of the Tribunals to get justice under The Senior Citizen Act 2017.

Protection of life and property of Senior Citizen

If any senior pass his property it may be movable or immovable to any person in the form of gift and the property is a way of
earning to the old person and the person has been promised that he would receive the amount, but after the transfer of property
the person was not provided with the promised amount. Then, the transfer of property would be considered void in the grounds
of fraud, coercion or undue influence.

Fundamental rights of senior citizens

Article 41 of the Constitution of India provides provision for the betterment of old aged people. According to this article, the
state is entitled to provide public assistance in the matter of old people under its economic capacity.

H. RIGHTS OF MINORITIES

Minority refers to a distinct group in terms of racial, cultural, or ethical characteristics that exist collectively. However, such a
group is presumed to be subordinate to the majority community. Subordinacy is the key trait of a minority group. It is assumed
that minority status in a certain community is correlated with the population. This is not true. A group may be called a minority
group even if it has more population than the dominating population. For instance, in South Africa during the period of
apartheid, the population of the dominating group was lesser than the dominated group.

Minority rights in India

India is a diverse nation having a unique mosaic of numerous religions and traditions. From having innumerable castes and
sub-castes to having more than eight hundred dialects, the diversification of India is known to the world. In India, where a
democratic form of government is prevalent, minority rights are provided to the concerned group, and they enjoy these rights
in the best possible manner.

History of minority rights in India

Initially, India had a major population of Hindu denominations, this is the reason India was called ‘Hindustan’ – A place where
Hindus live. However, due to several invasions and wars, certain minority communities were created. For instance, Anglo-
Indians, Sikhs, Muslims, Parsis, and Christians. From being a nation of Hinduism to an amalgamation of minority
communities, the demography of India changed drastically. India had many speakers in favour of minority rights from Dr. BR
Ambedkar to the first prime minister of India, Pandit Jawaharlal Nehru. In 1947, an Objective Resolution was adopted
unanimously in the national assembly. The resolution was regarding a framework for the protection of the minority, tribal and
backward communities. This resolution was moved by Pandit Jawahar Lal Nehru. In 1948, the drafting committee of the
constitution formed a specific part of the constitution in favour of minorities and their rights. There have been several issues
that are faced by the minority groups such as social isolation, less or no representation, discrimination, social taboos,
communal conflicts, hate crimes etc. In India, the rights of minority groups protect against discrimination based on their ethno-
religious, ideological, or lingual identity. Minority members practice their native language and maintain and openly represent
their sense of self.

Minority Rights and the Indian Constitution

The definition of ‘minority’ has not been provided under the Indian Constitution. The Indian Constitution includes Article
292 to Article 301 in Part XIV which states ‘ Special Provisions relating to Minorities’. From time to time, several
amendments were made to these provisions. Ultimately, no special right was provided to such communities except certain
educational and culture-related rights. Other than Part XIV of the Indian constitution, there are several other articles where the
rights of minorities are protected and preserved.

Article 14 and 15
‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,
on grounds of religion, race, caste, sex or place of birth.’
As per Article 14, the state is expected to provide equal treatment and condemn discrimination based on sex, gender, religion,
etc.
‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of
them.’
According to Article 15, the state cannot discriminate among individuals based on their caste, race, ethnicity, etc.

Article 29 and 30
Articles 29 and 30 are enshrined under the Indian Constitution as cultural and educational rights. The interests of minority
groups are protected under Article 29 of the Indian Constitution. Article 29(1) stipulates that any community living under
India’s jurisdiction has the right to protect and propagate their language, literature, and tradition. Article 29 (2) bans refusal of
admission to state-aided academic institutions based on race, caste, religion, or language.
This article safeguards the rights of citizens regardless of their ethnic or religious affiliation. Article 30 is a crucial piece of
legislation for India’s minority groups. Article 30(1) grants minority groups the right to create and run an educational
establishment for the preservation of their cultural identity.
As per Article 30(2), when providing aid, the state cannot discriminate against any minority-run academic institution,
irrespective of faith or language.
In contrast to popular perception, Article 29 has a broader reach than Article 30 as Article 30 exclusively applies to religious as
well as linguistic minorities, whereas Article 29 applies to all Indian citizens, along with the majority group. Article 29 is
exclusively applicable to Indian citizens, whereas Article 30 applies to both Indian citizens as well as non-citizens.

Article 38 and 39
Article 38 requires the government to establish public stability based on justice—social, financial, and political—to promote
the prosperity of individuals and to reduce disparities in wealth, prestige, and opportunity.
Free legal aid and equitable justice in different dimensions are stated in Article 39. It instructs the government to ensure that all
people have stable employment, as well as a fair distribution of assets for the general welfare. It also provides for the
avoidance of economic inequality, fair compensation for equal efforts, and the opportunity and resources for the progress of
children.

Article 46
Article 46 of the Constitution states that the government has the authority to take the necessary steps that are essential to
promote the economic and educational progress of the weaker parts of the population, as well as to safeguard them from social
inequality and oppression.

Reservation for the protection of minorities

The Indian constitution has ample articles which mention the reservation. Initially, when the constitution was enforced in 1950,
no special provisions regarding reservation were provided to these minorities in any governmental authority or private entity.
Later on, under Article 30 of the Constitution reservations for the protection of the rights of minorities were added.
Currently, there is no reservation in the Administrative Posts as well as Services offered by the Government of India, and also
for entrance into Central Academic Institutions for Minority Communities. The same is proclaimed by the Central Government
under Section 2(c) of the National Commission for Minorities Act, 1992. Moreover, under Section 2(c), the Central
Government has set aside a sub-quota of 4.5 percent for minority groups. However, this sub-quota was challenged before the
Supreme Court of India, and the case is currently pending.

Bal Patil v. Union of India (2005)

In this case, a question was raised before the apex court regarding the determination of the status of minorities. The Supreme
Court in this case held that the State has the power to determine minorities based on language or religion. The judgment of this
case also acted as a guiding light in the TMA Pai Foundation case.

TMA Pai Foundation v. the State of Karnataka (2003)

In this case, the following issues were raised –

1. Regarding the factors to be considered while giving the status of a minority to a particular group.
2. Regarding the provisions of establishing a minority-based educational institution.
3. Regarding the establishment of an educational institution by the minority group without any intention of earning
profit.
The Supreme Court in this case held that a religious or linguistic minority can only be provided with the status of ‘minority’ by
considering the factor of the demography of the concerned region. The total population of the country will play no role in
providing a minority status to a community.
Answering the question of the establishment of educational institutions for non-profits, the court stated that despite the fact
there is no generation of profit, the establishment of such institutions shall be considered an ‘occupation’. The reason behind
considering these establishments under ‘occupation’ is that when an individual is engaged in such an institution there is a
mission attached to it. This mission is to empower the lives of others. Also, the court acknowledged Article 30(1) as well as
Article 19(1)(g) and stated that education is a charitable activity where the motive of earning profit is absent. Hence, setting up
any educational institution for a non-profit purpose will come under ‘occupation’.

Managing Board of Milli Takimi Mission Bihar and others v. State of Bihar and others (1984)
In this case, the question was raised whether running a minority institution amounts to fundamental rights or not. The Apex
Court in this case held that maintaining and running a minority institution is a fundamental right. This right is as significant as
other rights available to the people of the country. Any denial regarding recognition by the state without any justification will
amount to infringement of fundamental rights as per Article 30(1) of the Indian Constitution.
P.A. Inamdar v. the State of Maharashtra (2002)
In this case, the supreme court stated that reservation is not pertinent in the admission of students in minority institutions. The
Court further stated that any statutory authority does not have the power to make reservations in any academic institution. The
sole process of admission shall be based only on merit.

DAV College, Bathinda v. State of Punjab (1971)

In this case, the question was raised regarding the interference of Article 29 in the ambit of Article 30. The five-judge bench of
the Supreme Court held that minority communities have the right to establish educational institutions as per their own free will.
This right also includes teaching in their native language and having a curriculum based on their norms and values. The court
further stated that a university must have the authority to give suggestions for the qualifications of the University Staff.
However, the ultimate decision regarding selection remains in the hands of minority institutions themselves.