1

CHAPTER – I

INTRODUCTION

The nature has peculiar elements which cannot be understood so easily. The
nature has provided so many things to watch and enjoy. But the mankind in the nature
is only the strongest and wonderful element. Man has wisdom and intelligence. But
the wisdom and intelligence cannot be utilized by human being in an equal manner.
One man tries to suppress the other. Man power, money power, political power, social
power shall be enjoyed by strong man. He tries to prevail over the other. His hunger
for power creates divisions in the society. These divisions either may be strong or
may be weak.

The varna system and caste system have divided the society into groups. Some
groups are enjoying power and prestige. Some groups are denied such
opportunities.1These groups are called as weaker sections. The weaker sections are
deprived of their rights. Who are the weaker sections? Simply the weaker sections
mean simply those who are weak to enjoy the power, prestige and rights. The
discussion on these weaker sections would throw a light on the necessity to confer
rights upon these people. The people who are suppressed through the ages by the
upper communities or the upper Varna by not giving equal opportunities are called
weaker sections. Those sections are Scheduled Caste, women and children. A focus
must be made on these sections in the introductory part.

The term “weaker sections” is very difficult to define. No scholar is able to

define the word in a correct manner. Economically they are downtrodden and socially
they are boycotted. They cannot enjoy the existing natural resources along with
others. They have no proper education. They have separate culture which could not be
intermingle with the culture of dominant Varnas.2 They began their life as bonded
labour and serfs. These sections are called vulnerable sections as they fail to find no
place in the society. These vulnerable sections are categorized as weaker sections by
the Constitution of India. For the purpose of providing reservations the term weaker is
used oftenly by the government and its agencies because they should be accorded
with special rights as they are not blessed with the fortune. The vulnerable or weaker
1
Roy Chowdhari, Social and economic conditions of ancient India, Vidhyabhavan, Bombay, P. 243.
2
Ibid.
 2

are synonymous to each other. The women are also being considered as weaker
sections whose life and fat are guided by the men folk to their destination. They have
to depend on their father or their sons or their husbands. They have no economic and
social liberty. The women are subjected to indiscrimination. Hence the term weaker
sections denote the position of SCs, STs, Child labour, women and disabled. The
word weaker is a broad term which covers all the people who are made weak by the
society through the ages. As the people are weak they should be strengthened by
according equal rights and opportunities on the basis of human values.

SAFEGUARDS FOR SCHEDULED CASTES UNDER CONSTITUTION:

Indian constitution has been adopted just after two years of the adoption of human
rights charter by UN General Assembly. Human Rights charter is a lengthiest document
conferring economic, social, civil and political rights upon the people of universe, so it is
called universal declaration of Human Rights. The Indian Constitution is somewhat
inspired by the UN declaration of Human Rights 1948. The universal declaration has
covered all the section of the people including weaker sections. Hence this part has
focused on the rights of the weaker sections including scheduled Caste and Scheduled
Tribe, women and children. The constitutional position of these weaker sections is
discussed.

After Independence India emerged as “sovereign socialist secular Democratic

Republic” mainly based on the constitutional philosophy and ideology of a welfare state
with the heavy commitment to the vulnerable sections of the society.3 After recognizing
prohibition of untouchability as a fundamental right, Constitution has provided all sorts of
safeguards by not leaving them (i.e. untouchables) at the mercy of the Government. In
addition to this, several other constitutional and legal provisions are made from time to
time so as to lift the downtrodden sections of the society into the main stream of
development on par with other developed sections of the society. Particularly providing
employment opportunities using the public property, some special provisions accorded to
the Scheduled Castes under directive principles, special seats reserved for the Scheduled
Castes both in Assemblies and Lok Sabha and also special Commission to be set up to
look after the welfare of the Scheduled Castes are some of the safeguards created by the
Constitution of India. On the basis of these Constitutional safeguards the Government of

3
Directive Principles of State Policy, Part IV Constitution of India.
 3

India has initiated some of the programmes for the development of weaker sections for
this purpose some of the Acts have been enacted.

Prior to the passing of Civil Rights Act, 1955 some efforts have been made to
eradicate the social menace like ‘Untouchability’. As it is already mentioned the
efforts were made as early as 1850s but the Government could not succeed. The last
two decades of British rule has witnessed some of the legal efforts to meet the
challenges posed by ‘Untouchability’. Before the inception of the Constitution of
India, States have enacted laws during provincial period to eradicate this social
problem.

In 1938, the Madras Legislature passed the first comprehensive and Penal Act
to remove social disabilities, making it an offence to discriminate against
untouchables not only in regard to public supported facilities such as roads, wells, and
transportation, but also in regard to “any other recluse institution” to which general
public was admitted including restaurants, hotels, shops etc. Under this Act, if any
violation is made it was cognizable as an offence with a small fine for the first
offence, larger fines upto six months, and imprisonment for subsequent offences.4 In
the early 1950s there were probably more than four hundred cases registered each
year under these Acts where all most all of the provinces passed their own Acts in
India. The Bombay Harijan (Removal of Social Disabilities) Act, 1946, the Bombay
Harijan Temple entry Act, 1947 and Coorg Scheduled Castes (Removal of Civil and
Social Disabilities) Act, 1949 etc, were responsible for making ‘untouchability’ as the
fundamental right.

The Constitution of India in unequivocal terms has recognized the basic

tenants of civil rights in the preamble when it says to resolve to all its citizens
“Equality of status and opportunity”.5 It is important to note that Constitution has not
only declared equal treatment to all before the law but also prohibited all sorts of
discrimination. It is with this spirit of injustice and to improve the lot of downtrodden
that the Constitution under Article 17 proclaimed that ‘untouchability’ is abolished
and its practice in any form is forbidden. The enforcement of any disability arising out
of ‘Untouchability’ shall be an offence punishable.

4
Marc Galanter, “Law and Social Change” Edited by Robert F. Meagher, I.L.I. 1988.
5
Protection of Civil Rights Act: A critical Approval, Law and Society in India.
 4

The Parliament in 1955, with exercise of the power conferred under Act
35(a)(II), enacted the Untouchability (Offences) Act. This Act preconceives
punishment for the practice of ‘Untouchability’ and for the enforcement of any
disability arising there from. However, it was found that the punishments awarded
under the Untouchability (Offences) Act were few and inadequate. In 1965, a
committee on ‘Untouchability’, was appointed to make recommendations for the
economical and educational development of the Scheduled Castes and for the
amendment of Untouchability (Offences) Act. Thereafter, a Bill to amend to the Act
was introduced in 1972 and was passed in 1976, which renamed the Act as the
‘Protection of Civil Rights Act, 1958’.6 This Amended Act also made significant
changes in the existing law, viz. all offences to be treated as non-compoundable and
offences punishable upto three months to be tried summarily; punishment of offences
enhanced; a civil servant showing negligence in the investigation of offences to be
punished as an abettor; privately owned places of worship brought within its purview;
preaching of ‘Untouchability’ or its justification made an offence; the state
Government empowered to impose fines on the inhabitants of an area involved in of
abetting the commission of offence. Machinery emerged for better administration and
enforcement of the provisions.

It is interesting to note that neither in the Constitution nor in the Protection of

Civil Rights (PCR) Act 1955 there was no attempt to define ‘untouchability’.
Protection of Civil Rights Act 1955 defines “Scheduled Castes” as prescribed in
Constitution mentioned in Article 366(24).7 Supreme Court in a case explained
‘Untouchable’ in India has got a special meaning i.e., the class of people whose touch
was formerly considered as pollution by Indus of highest status and has developed
historically. Temple entry in perhaps one of the most sensitive area which has
attracted juridical attention very often. Prior to this Act (PCR Act) in a case of
pollution caused by the entry of untouchable in a temple, he was asked to pay
damages for purification ceremony of temple and court said that deliberate pollution
of temple by an untouchable was a criminal offence. Now it was reversed by this Act
and the Supreme Court upheld section 2(d) of this Act. In Venkataramana Devaru V.

6
D.K. Singh “The Constitution of India”, 7th Edition, 1982, Eastern Book Company, P.66.
7
Sec.2(b) of P.C.R. Act 1955.
 5

State of Mysore8 the question of the right of entry of untouchable to a denominational

temple came up for consideration where the Supreme Court answered the question in
the affirmative and upheld the right of untouchables to enter the temple. The Apex
Court in another case while discussing the scope of section 3(b) of the P.C.R. Act
1955 held that the following conditions are necessary to attest the impugned section
i.e. the prevention must be from worshipping or offering prayers or performing
religious services in place of public’ worship, or from doing any act to the same
extent and in the same manner as is permissible to other persons of the same religious
denomination, or section thereof and that the prevention must be on the ground of
untouchability.

The Protection of Civil Rights Act of 1955 in Section 3,4,5 and 6 forbid the
denial of facilities and services on the ground of untouchability. The Kerala High
Court in Rama Choudari Harijan students and making a separate division exclusively
for them. The plea that there were some Harijan students in other classes did not find
favour with the court.9 Rejecting the appellant’s contention, the court observed that
Sec.5 of P.C.R. Act, 1955 is applicable, even if the discrimination is not solely on the
ground of ‘untouchability’ or if ‘untouchability’ is only one of the grounds of
discrimination, the person practicing such discrimination would be guilty of the
offence. In other words, any denial of equal treatment amounts to discrimination.
From the language of Article 17 of the Constitution and Section 5 of P.C.R. it is
evident that every person, who is singled out for differential treatment is the victim of
discrimination, and to that extent there is discrimination. Therefore, by segregating
the Harijan students into a separate division the accused has already committed the
offence.

The question of intervening motive came up before the Allahabad High Court
for consideration in the case of State V. Banwari,10 the Chamaras (Harijan) served a
notice on the barbers and washer men (dhobis) of the village asking them to render
services to them. When they did not agree, a panchayat was called by the chamaras.
Initially dhobis agreed to render service, but later refused. The dhobis were
prosecuted for discriminating the chamaras on the ground of untouchability. They

8
AIR 1958, SC 255.
9
1964(2), A.I.R.., Kerala.
10
AIR 1955 All 615.
 6

contended that they would lose the Hindu customers if they agree to the demand of
the chamaras. Held, that since the loss of customers would be the consequence of the
fact that chamaras were Scheduled Castes, the reason for the refusal of service may be
attributable to ‘untouchability’ and so this practice should be forbidden.

Apart from these provisions the Civil Liberties Act covers some broader and
from where the problem of ‘untouchability’ is to be eradicated. A person who ever
molests, annoys or injures a person belongs to Scheduled Castes as notified by the
President who ever comes under the category of untouchables, for this a punishment
of imprisonment of not less than one month and not more than 6 months or a fine of
not less than hundred or not more than 500 is prescribed by Sec.7 of the 1955 Act. If
the owners or the householders engaged a person belonged to the Scheduled Castes in
a work without his willingness, such person is liable for punishment of imprisonment
of not less than 3 months or not more than 6 months and also with fine which shall not
be less than 100 rupees and not more 500 rupees. The most important section which
attracts the area of the Sale of Goods in Sec.8 of 1955 Act. Any person refuses to
purchase anything from the person belongs to scheduled caste, his license would be
cancelled as he has humiliated the scheduled caste person. Section 6 of this Act
imposes restrictions of fine and imprisonment on those who refused to sell the goods
to the persons belonging to untouchables. This section further imposed some severe
punishments like cancellation of licenses. Section 9 of Civil Liberties Act forced a
manager of trustee of the public worship or other religious purposes not to show any
discrimination on the basis of ‘untouchability’, otherwise he is liable for punishment
in form of suspension of grants issued by the Government. Section 10 read with sec.
107 to 120 of IPC deals with the offences of abetment. A person whoever abets
another to commit offence against untouchable is liable for punishment under IPC
particularly, the public officials who are inactive or negligent in conducting enquiry
on the cases against untouchables are deemed as abettors. Accordingly the trail courts
and other courts may impose punishments under I.P.C. Section 12 of the Act deals
with presumption by courts in certain cases, which says that where any act constitutes
an offence under this Act is committed in relation to a member of a Scheduled Castes
the Court, shall presume unless the contrary is proved that such act was committed on
the ground of “untouchability”.11The Civil Rights Act laying emphasis on the

11
Prevention of Atrocities Act against SCs and STs 1989.
 7

protection of untouchable by preventing courts to pass a decree or a judgment either

wholly or partially on the claim, which is contrary to the provisions of civil rights or
the claimant, is convicted under the provisions of this Act. Thus, this Act placed a
limitation on the courts not to violate the jurisdiction and limitation created by this
Act. Section 13, which bars the civil courts from issuing a decree in favour of
convicted person under the provisions of this Act is pivotal and keystone of Civil
Rights Act. Section 14 of this Act brings within its purview the companies for
showing discrimination or ill treatment of the persons belonging to untouchables. The
company as a juristic person may sue or may be sued for any discrimination shown in
case of a person belonging to Scheduled Castes. Section 14 A is a section of exception
i.e. the State Government employees are exempted for acting in good faith though it is
not beneficial to the Scheduled Castes. Section 15 A is again said to be the ancillary
section to Article 17 of the Constitution, authorizing the State Government to ensure
the persons belonging to scheduled Castes to avail their rights provided by the various
enactments of Parliament including the Constitution.12 In order to protect the persons
belonging Scheduled Castes and their rights this Act has laid down that no other Act
or decree or the judgment which is inconsistent with provisions of any or the total
provisions of this Act may be deemed to declare as null and void. That means, this
Act is superior which is enacted with a clear intention to abolish the institution of
‘untouchability’ can be considered as Parent Act which could not be violated or
superseded by any Act of the Government or legislature.

It is gratifying to note that, the above mentioned Act and its provisions which
are supposed to be vigilant on the age old evil of ‘untouchability’ is gradually
disappearing except for occasional reporting of a few monstrous crimes committed
against the so called untouchables. The judiciary is helping in eradicating this social
evil by positive interpretation of the law so as to give effect to the intention of
legislature and by upholding the provisions of this protective legislation. This Act is
of utmost importance to look after the welfare of the untouchables particularly to
recognize their rights like access to shops, hospitals, purchase of goods from shops
and so on. Maintaining the validity and superiority of this Act, the others Acts may be
declared as null and void which are inconsistent with the provision’s of this Act.

12
Article 17 abolition of untouchability Constitution of India.
 8

PROTECTION OF RIGHTS OF WOMEN AND CONSTITUTION:

The women are being considered as a vulnerable section in the society because
of their dependency on the men folk. Right from the ancient times, the rights of
women are not recognized by the society. The religious texts, Puranas and
Mythologies are reluctant to give equal status to women with men. The women are
generally being treated as the machines of giving birth to children. They are the
pleasure dolls in the hands of men. The Manu dharma Sastra is one of the Sanskrit
text books which nearly treated the women as the domestic animals. It has injected an
idea in the minds of women to maintain purity and chastity is only a way to reach the
God.13 To uphold the idea the sastras have prescribed the custom of sathi. Adoration,
duty and health should be maintained by women for the good of the men. They cannot
visualize the society according to their wish. They could not take the food as they
wish. The female do not have higher education. But the Vedic women’s position is
totally different from the women of successive generations. The Vedic women have
enjoyed the liberty and equality along with the men.

But in the Muslim community women are like puppets and may be used by
men to fulfill their desires and pleasures. Even the women cannot be accepted as
witness in the judicial trials. According to Quran two women are equal to one witness
of a man. Only after the renaissance in India some steps have been taken to improve
the position of women on the basis of humanistic principles. Implementation of
Sarada Act to abolish the child marriages, widow remarriage Act, Civil Marriages Act
to fix the age for marriages and to celebrate the marriages under the civil law and
other measures have been taken by British Government for bettering the conditions of
women. After the Independence of India the government set itself to the task to
achieve some goals that is social justice by giving equal rights to women through
Hindu Marriage Act 1955, Hindu Succession Act 1956 and adoption and maintenance
Act and etc.

The status of women in recent times is the major challenging areas in feminist
movement. The equality and other equal rights demanded by women are provided in
the national constitution as well as various other legislations throughout the world.
Discrimination towards women is being taken as a serious issue and the awareness

13
S.L. Khurana, History of ancient India, Allahabad Press, P. 281.
 9

about the rights and status of women is increased and the women are awakening
regarding their rights. The Constitution of India has provided right to equality to all
the citizens irrespective of caste, colour, creed and sex. Any kind of inequality is
discrimination is severely dealt with by the Apex Court. For an instance Air India V.
Nargeesh Meerza14 the air India has adopted a policy which has been clearly termed
as discrimination shown by air India on the female section. Article 14 does not permit
the government or its agencies to adopt discriminatory policies which try to denounce
the human dignity. The fixation of the age of retirement of Air Hostesses who fall
within a special class depends on various factors which have to be taken into
consideration by employers. Therefore, keeping the age of retirement at 35 years but
the regulation seems to arm the Managing Director with uncanalised and unguided
discretion to extend the age of Air Hostesses at this option which appears to suffer
from the vice of excessive delegation of powers.

If people have respect for the dignity of the human individual then they would
not discriminate between the male and the female child or between man and woman
not would they consider women as goods and chattels. If they have purity of mind,
self-control and equanimity, then they would not look upon women as an object of
sense-gratification. If they have contentment and simplicity, there would to be any
dowry-demands and cases of brides-burning. The gender-conflict will be a thing of
the past and men and women would have a feeling of equality since they will now
have respect for each other’s rights and freedoms as observed by apex court in a case
Shanti V. State of Haryana.15

The history if status of women is the history of conflict between power and
suppression and liberty and equality. A profound thinker of our times J. Rawls ordains
a lexical priority for liberty is able to say without a frown on his face towards the end
of his magnum opus that it may after all not extend to societies where basic wants are
not satisfied. The modern legal experience in most of the world began only a short
time after the European. Indeed the assumption is more modern the law, that is more
it conforms to European model the better it must work for forfeit the opportunity to
look in the global mirror. Arrialn Dorfman poignantly reminds all of us, “the third
world humanity is just a filthy, undesirable, oversize, under developed brother to the

14
AIR 1981 SC 1829.
15
(1991) 1 SCC 371.
 10

fourth, fifth, sixth and infinite contradictory worlds which team with in the frontiers
of the “advanced” nations. The status of women in third world is the worst.” The
above statement is squarely applicable to Hindu women as they belong to third world
country. The real problem is how the position is to be improved.

As Wayne Morrison rightly pointed out feminists have to recognize their own
embeddedness; their contextuality. While demanding that traditional perspectives
have not faced up to their specific historical context, feminists have often neglected to
turn this demand upon themselves.16 The post-modern concern with reflexivity causes
constant self-assessment and complicates all attempts to define an essential identity –
the subject is not a rational transparent entity able to organize and confer a set of
homogeneous meaning to the field of her endeavor. Many feminists believe that if
they do not see women as a coherent entity then a coherent feminist movement is
impossible. But post-modernity encourages one to think in terms of varied social
relations and of a multiplicity of social spheres where there are many obstacles and
opportunities for advancing liberty and the treatment of self and others as equals. The
post-modern condition demands that women abandon any supposed unity and
homogeneity in answering the woman question and look to analyse and intervene in a
multiplicity of relations of subordination, transforming oppression into an affirmation
of life’s possibilities and opportunities.

In India, a series of laws have been enacted to encourage women’s

participation in different activities of society. Legislations have been enacted to
ensure that women get the same rights and privileges as are enjoyed by men. The Acts
like Minimum Wages Act, Maternity Benefit Act, Immoral Drug Trafficking Act,
Medical Termination of Pregnancy Act and Dowry Prohibition Act have been enacted
to raise the status and to protect the dignity of women. Recently the domestic violence
Act tries to better the position of women by creating awareness among them to
safeguard their human rights. However, discriminations against women continue to
exist. Women earn less than men for the same work. They are not allowed to perform
work allotted for males.

16
“Status of Women Constitutional And Legal Perspectives” By Dr. B. Hanumaiah Chowdary,
Advocate, FESTSCHRIFT, 2002. P.793.
 11

Family relations in India are governed by religious personal laws. Personal

laws are often referred to as civil laws but in India they are more correctly termed
religious personal laws and distinguished from other civil laws. The four major
religious communities; Hindu, Muslim, Christian and Parsi, each have their separate
personal laws. They are governed by their respective religious laws in matter of
marriage, divorce, succession, adoption, guardianship and maintenance.17

Most women are ignorant of their rights and the position of equality assured to
them under the Indian legal system. Male domination with a complementary
suppression of women has been continuing since pre-historic times.

The Lahore declaration suggested the minimum requirements for Gender Justice
which are as follows:

I. Marriage, Separation and Divorce18

1. Both women and men shall be entitled to a free choice in marriage.
2. All women and men shall have equal rights in all matters relating to
marriage, divorce, guardianship, maintenance and custody of children.
3. Marriage and divorces shall be properly registered and easy access records
be provided.
4. Child marriage shall be abolished. The minimum age of marriage for both
women and men shall be 21 years.
5. All polygamous marriages shall be banned and made punishable. Such
marriages shall be null and void and the injured party be adequately
compensated.
6. Provisions pertaining to restitution of conjugal rights shall be declared.
7. A Civil Law shall be enacted to provide for inter-faith marriages and their
registration.
8. Women and men shall have equal rights under citizenship laws and
domiciliary regulations.
9. Spouses shall be entitled to judicial separation by mutual consent.
10. Distribution of movable and immovable assets and income upon divorce or
dissolution of marriage shall be based on principles of justice and equity.

17
G.C.V. Subbarao, Family Law, Allahabad Law Agency, P. 43.
18
Monika Chowla, Gender Justice: Women and Law, Deep & Deep Publications Pvt. Ltd. 2006, P. 10.
 12

11. Matrimonial courts shall be established to deal exclusively with all

disputes under Family Laws (including inheritance and return of personal
belongings to the spouses). These courts shall have jurisdiction in respect
of family matters of all religious communities. Court fees should be
minimal.
12. The matrimonial courts shall have adequate representation of judges from
women.19
13. Execution of decrees passed by the matrimonial courts shall be made more
effective and efficient.
14. Laws shall be enacted to allow for transfer of cases from one jurisdiction
to another in family matters.
15. Women and men shall have statutory rights of free to information about
their rights through all avenues, including legal aid, the media and through
curriculum in formal and informal educational centers.
II. Guardianship, Custody, Adoption and Other Rights of the Child
1. All children born in wedlock or out of it shall enjoy equal status and equal
rights.
2. The law must recognize both parents as the natural guardians of the child.
3. In case of separation amongst spouses custody of minors should be awarded
upon sole consideration of the welfare of the minor.
4. In passing orders relating to custody the court shall also pass appropriate
orders for the minor’s maintenance and management of his/her property.
5. Every adult person shall have the right to adopt children.
6. All questions of custody and maintenance of the property and adoption of
the minor shall be decided by the Matrimonial Courts.
7. All matters of adoption shall be dealt with by Matrimonial Court.
III. Economic Rights of Women Within Marriage
1. The economic rights of women on marriage, during the subsistence of
marriage and on dissolution of marriage shall be protected by laws.
2. All endowments pledged to a woman at the time of her marriage, whether
by parents, parents-in-law or her husband, and gifts given to her shall be her
absolute and separate property.20

19
Ibid, P. 17.
 13

3. Adequate maintenance including interim maintenance shall be provided to

the dependent spouse during the subsistence of the marriage.
4. During the subsistence of the marriage the wife’s access to matrimonial
assets must be guaranteed including her right to reside in the matrimonial
home.
5. Laws against domestic violence shall empower the courts to grant
injunction restraining a violent spouse from entering the matrimonial home.
6. In case of dissolution of marriage the courts shall decide all related matters
e.g. divorce/dissolution, maintenance/alimony or dower/financial settlement
and provision of shelter simultaneously except to accept disputes relating to
custody of minors. In doing so, separate procedures be laid down in order to
provide for expeditious disposal of suits.
7. Assets movable or immovable accumulated during the subsistence of the
marriage shall be distributed equally on the termination of the marriage.
8. Inheritance laws shall be changed to ensure that the share of the male and
female heirs of same class of kinship shall be equal. Upon the death of the
husband, the widow and her children shall inherit in equal proportion half
of the immovable and movable assets accumulated by the couple during the
subsistence of the marriage. The widow shall remain the sole owner of the
balance half of such assets till her death.
9. The children shall inherit in equal proportion, the share of their mother’s
assets.

A new comparative jurisprudence is struggling to be born in tune with the

creationist role of legal ideology and power in the historic production of this type of
under privileged humanity. Every where the new jurisprudence affirms the
lawlessness of peoples domain of multi legalism in social orders. At the same time it
also seeks to decipher the nature of state power in part through an understanding of
the dialectic between consent and coercion. As Upendra Baxi puts it another way, it
explores the ideology of power and power of ideology. The authentic customary law
but not one fabricated for purposes of extension of colonial power and regimes the
role of legal professions which generates legal pluralism in the frame work of the
modern state taken from pre capitalist social formations making people to love the

20
Ibid, P. 24.
 14

laws are some of the jurisprudential overtones. This new hope for jurisprudence
heralds the birth of a new sensibility enabling the thinking humanity to suffer and the
suffering humanity to think. For long such a sensibility was needed in the human
sense of jurisprudence. Status of women is one of such sensible areas where new
jurisprudence is struggled to be born. The Human Rights jurisprudence has taken the
women folk into its fold recognizing their rights at the International level. India has
followed the same suit giving top priority to women rights on its political agenda.

CONSTITUTION OF INDIA AND WELFARE OF THE CHILDREN:-

It is a harsh reality that children are future hope and valuable asset as well as a
liability for a nation. Both at the national level and international level greater attention
is being focused on well-being and welfare of children. Future human resource
development of a country depends on the all round development of its children. Child
labour being a Universal it becomes a matter of serious concern when they think to
find out ways and means which may put an end to the employment and exploitation of
children who are forced to join the labour stream.21 In recent decades, steady progress
has been made in developing countries in the field of school education, resulting in a
considerable improvement in the school enrolment of children.22 This progress has
especially helped in bringing down the incidence of child labour.

In recent years a growing awareness has to be run on the part of U.N.O. and its
organs, UNICEF, UNESCO and WHO in organizing conventions on ‘children’s
rights’ for elevating political and humanitarian obligations of nations towards children
welfare at par with international law. In order to protect children’s right there had
been a number of international treaties and declarations, since the day of the League
of Nations. Those international treaties and declarations did not touch all issues
regarding the right of the child. Therefore, the comprehensive Human Rights
Convention was drafted on the rights of the child which has a binding effect on all
member nations of the U.N., as the same has been ratified by the required number of
member states.23 The following ten principles have been adopted by the member
countries of UNO. (1) The child shall enjoy and shall be entitled to the rights set forth

21
A note on issued by the Department of social welfare on the conditions of the child in India. 1974.
22
B.M. Dinesh and P.H. Rayappa, “School and Work: Are they Compatible?” Indian Journal of Social
Work, Vol. XLVII, No.2, July 1986. P. 117
23
S. Roy, Hon’ble Judge of Patna High Court, “Constitutional Rights of the Child in India,” Social
Change, Sept, Vol. 20, No.3. P.3.
 15

in these principles without any distinction or discrimination. (2) It also ensures special
protection and facilities for proper and integrated development of human personality
(3) The child shall be entitled from his birth to a name and nationality. (4) Special
care and protection shall be provided to the child and his mother so that the child can
grow and develop in health. For this purpose he shall have right to adequate nutrition,
housing, recreation and medical services. (5) A child handicapped in any manner
deserves special treatment, education and care suiting to his condition. (6) For proper
development of his personality a child shall be ensured of love, atmosphere of
affection and material security. (7) The child shall also be entitled to free and
compulsory education to promote his general culture and enable him to develop his
abilities on a basis of equal opportunity. (8) The child shall in all circumstances be
among the first to receive protection and relief. (9) He shall be protected against all
forms of neglect, cruelty and exploitation. He shall not be subjected to traffic in any
form and shall not be admitted to employment before an appropriate age. He shall not
be engaged in any employment which would prejudice his health or education or
interfere with his physical, mental or moral development. (10) The child shall also be
protected from practices which may foster racial, religious and any other form of
discrimination. Therefore, most of the countries have included welfare provisions in
their constitutions. India also being a democratic welfare state provides for the
protection of children in its constitution against all types of exploitations. The
Constitution of India provides compulsory education to all the children below the age
of fourteen through the directive principles. Article 45 provides that all the children
should be provided compulsory education upto the age of fourteen. Due to the
financial constraints the government has pledged to provide education to the children
between the age sixteen to eleven. But recently the Parliament has inserted a Article
to the right to life i.e. Article 21. New Article 21A provides compulsory education to
all the children below the age of fourteen. The term “Child” for the purpose of Article
21-A is held to be a child who is a citizen of India. The Kerala High Court in Zeeshan
V. District Education Officer, Kannur,24 upheld the denial of admission to Standard V
in a School of a child who was a citizen of Pakistan, under Section 22(ii) of the Kerala
Education Act, 1959. Article 21 A added by the Constitution (86th Amendment) Act,

24
AIR 2008 Ker. 226.
 16

2002 makes education from 6 to 14 years old, fundamental right, within the meaning
of Part III of the Constitution. It is popularly known as “primary education.”

Article 21 A may be read with new substituted Article 45 and new clause (k)
inserted in Article 51A by the Constitution (86th Amendment) Act, 2002. While the
new Article 45 obligates the State “to endeavour to provide early childhood care and
education for all children until they complete the age of six years”, Clause (k) inserted
in Article 51A imposes a fundamental duty on parent/guardian “to provide
opportunities for education to his child or, as the case may be, ward between the age
of six and fourteen years”.

The 86th Amendment will be enforced from a date to be notified by the

Department of Education in the Ministry of Human Resource Development. Holding
that the right to appear in class VIII Board Examination was another facet of the right
to education guaranteed under Article 21A, the Patna High Court in Anil Kumar Roy
Sharma V. State,25 directed the Board to permit the students of a private school to
appear in class VIII Board examination. If Article 21 A is read with Article 19 (1) (a),
all children shall have the freedom to have primary education in a language of their
choice. In Associated Management of (Government Recognised Unaided English
Medium) Primary & Secondary Schools in Karnataka V. State of Karnataka,26 a full
Bench of Karnataka High Court held that by virtue of Article 21-A, the medium of
instructions was to be entirely the choice of the parents and the student and that no
one could claim to know better than the parents about the child, to decide as to what
the child required in the sphere of education, to shape its career and destiny.

After the education the main problem confronted to the child is the child
labour. Due to the heavy burden of the family, the elders of the family pressed their
children into service. The children are being exploited by the employers by giving
them low wages and by making them to work for long hours in a day. The
Constitution of India carries important expression of the government policies against
the abuse of child labour. Fundamentally the constitution provides that no child below
the age of fourteen shall be employed in an industry of factory or in any other
installation. It recognizes the need for granting special protection to children. The

25
AIR 2005 Pat. 38.
26
AIR 2008 (NOC) 2790 (Kar.).
 17

children should also have their distributive justice in future in free India. Therefore,
special provisions ensuring justice to children have been incorporated in Part-III with
Fundamental Rights and Part-IV devoted to Directive Principles of State Policy.
Provisions regarding children’s welfare embodied in Indian Constitution can be
divided into two categories – explicit provisions and Implicit Provisions. The explicit
provisions dealing with the child welfare are:

1. Article 15(3). (It empowers the state to make special provisions for women
and children).
2. Article 24. (It prohibits the employment of children in factories, etc.).
3. Articles 39(e) and (f). (It obligates the state to safeguard the health of children
and afford opportunities to grow with dignity).
4. Article 45 (It provides for free and compulsory education for children).

The implicit provisions dealing with welfare of children may be mentioned as under:

1. Article 14 (Equality before law).

2. Article 23 (Prohibition of traffic in human beings and forced labour).
3. Article 38 (It endeavours to secure a social order for the protection of welfare
of the people).
4. Article 41 (Right to work, to education and to public assistance in certain
cases).
5. Article 42 (Provisions for just and humane conditions of work and maternity
relief).
6. Article 46 (Promotion of educational and economic interests of Schedule
Castes, Schedule Tribes and other weaker sections).
7. Article 47 (It obligates the state to raise the level of nutrition and the standard
of living and to improve public health).

There is wide description about fundamental rights in part-III of Indian

Constitution regarding children. Fundamental rights are limitations upon all the
powers of the Government, executive as well as legislative and they are essential to
the preservation of public and private rights, notwithstanding the representative’s
character of political institutions.27 The rights are regarded as fundamental because

27
V.G. Ram Chandran (1974), Fundamental Rights and Constitutional Remedies (1974), 2nd
Edition.P.1.
 18

they are most essential for the individual for the development of his full intellectual,
moral and spiritual potentialities. The negation of these rights will keep the
individual’s personality underdeveloped. The declaration limits the range of
government activity in appropriate directions in the interest of the liberty of the
citizens.

The chapter on Fundamental Rights in Indian Constitution guarantees some

fundamental rights only to the citizens of India while the others are guaranteed to any
persons (i.e. for both citizens and non-citizens), within which the fundamental rights
of the children are also implicitly included. The children have rights to enjoy all the
fundamental rights which are guaranteed to the citizens of India under Articles 15, 16,
19 and 29 of the Constitution because the children in India are also citizens of India.28
The fundamental rights which are available only to the citizens are:

1. The right not to be discriminated against on the grounds of religion, race,

caste, sex or place of birth (Article 15).
2. The right to equality of opportunity in the matter of public employment
(Article 16).
3. The right to six freedom enumerated in Article 19, i.e. freedom of speech and
expression, assembly, associations, movement, residence and profession.
4. Cultural and educational rights conferred by Articles 29 and 30.

There are also some fundamental rights expressly provided for children and
some other fundamental rights which are also applicable for children. Article 14
guarantees equality before law and equal protection of laws to all persons within the
territory of India and Article 15 prohibits discrimination on the grounds of religion,
race, caste, sex, class or place of birth or any of them. But Article 15(3) enables the
state to make special provisions in its laws for giving favourable treatment to children
and women. Though, no ground is mentioned, preferential treatment is permitted on
consideration of inherent weakness of children, Article 15(3) serves as an exception to
Articles 15(1) and 15(2), Article 15 in general prohibits the discrimination on the
ground of religion, race, caste, sex or place of birth. Mr. H.M. Seervai is of the view

28
Articles 5 to 11 of the Constitution of India and the Indian Citizenship Act, 1955.
 19

that since Article 15(1) does not make age a prohibited ground of discrimination the
reference to children in Article 15(3) appears to be pointless.29

It is submitted that specific positive provision serves the purpose of avoiding

any controversy and demonstrates the concern, however, inadequate of the framers of
the Constitution that the state shall strive to promote the welfare of the people
including children. Our solicitude for children and repulsion for the exploitation of
children of tender age, impelled our founding fathers to make specific mention of
them, the state can make law for welfare of children, giving them preferential
treatment over other persons in the society. It further proclaims that the state shall, in
particular, direct its policy towards securing that the health and strength of the tender
age of children are not forced by economic necessity to enter avocations unsuited to
their age or strength. It further enjoins that childhood and youth are to be protected
against exploitation against moral and material abandonment. Apart from that the
Constitution also endeavours to provide free and compulsory education for all
children until they complete the age of fourteen year.

Article 20 is to provide for the protection of life and personal liberty of the
people including children. “Right to Life” in the context has been held to be not a
mere animal existence but it is to be with human dignity and values.

Article 23 of the Constitution prohibits traffic in human beings, begar and

other similar forms of forced labour and exploitation. Although this article does not
specifically speak of children, yet it is applied to them and is more relevant in their
context because children are the most valuable section of the society. It is a known
fact that many children are exploited even by the parents who allows their
exploitation because of their poverty. And in the absence of parents their exploitation
by close relatives still deeper. They are deprived of education, made to do all sorts of
work injurious to their health and personality. In rural areas, children are pledged by
destitute parents to the landlords as full-time servants or part-time servant or ‘part-
time worker’ to look after both domestic and agricultural operation. In urban areas,
the exploitation of children on myriad form exists such as helpers to artisans and
skilled workers and also as domestic servants. Millions of children are exploited in

29
H.M. Seevai, Constitutional Law of India (1975). P.293.
 20

violation of this fundamental right and no adequate legislature and administrative

measures have been taken by the state.30

In reference to children the word “beggar” can be given a wide connotation.

Beggar does not require total absence of payment. Even inadequate payment for the
work rendered by the child amount to beggar or forced labour. The most atrocious and
heinous crime against helpless children is that they are captured and maimed by
criminal gangs to indulge them in begging business. Sometimes, the children of tender
age are enticed for the flesh trade, thus all in violation of Article 23.

Article 24 prohibits the employment of children below the age of 14 years in

factories, mines or hazardous employment. But in the context of the prevailing
poverty in the country it would be extremely difficult to implement the above
provision. Employment of children below a particular age is also prohibited so also
hazardous or injurious work may be prohibited to children taking into consideration
their physical structure. This article does not create an absolute bar to the employment
of children below the age of 14 years. But after the adoption of child rights of UN
assembly the government of India is under obligation to ban the child labour. The
Supreme Court of India has warned the government of India to take steps from
preventing the children to be appointed as employees by the employer. This caution of
Supreme Court has been contained in the case Bandhu Mukti Morcha V. Union of
India.31 The guidelines of UN general assembly and the pronouncement of Supreme
Court of India lead the government of India to pass a legislation entitled “Prohibition
of Child labour Act in 1986”. Moreover, it does not prohibit their employment
altogether. The employment is prohibited only in factory or mine or in any other
hazardous occupation. However, this provision is to be understood in the right of
realities and economic needs of parents and children in our society. Article 24
prohibits the employment of children below the age of 14 years, it is submitted that
even with respect to children above the age of 14 years, all agreements either express
or implied are voidable and are of doubtful validity in case of exploitation. Further,
Article 24 is plainly and indubitably enforceable against every one and by reason of
its compulsive mandate, no one can employ a child below the age of 14 years in a

30
Sudesh Kumar Sharma, “Child and the Constitution: An Appraisal in Distributive Justice
Prospective,” Supreme Court Journal, 1989, Vol. II. P.12.
31
AIR 1984 SC 802.
 21

‘hazardous employment’.32 This provision raises a question as to what are the

‘hazardous’ employment. Hazardous employment of children below 14 years is a
constitutional prohibition which even if not followed up by the appropriate legislation,
must operate propriovigore. Thus, special provisions for the safeguard of children
rights have been made under Article 24 of the Constitution.

There are also the fundamental rights which are available to any person. Thus,
the question arises whether the fundamental rights which are available to a ‘person’
are also available to the child or not? The answer to this question finds in the answer
to the question whether the word ‘person’ includes the child or not? The Indian
Constitution does not define the word ‘person’ obviously for child a ‘person’ cannot
include an ‘artificial person’. But the question still remains whether an unborn child is
included in the definition of ‘person’ as used in Articles 14, 17, 18(1), 20, 21, 22, 23,
25, 27, 28 and 32 of the Indian Constitution. There is no direct decision of Indian
Supreme Court on this point. The Allahabad High Court, however, held that for the
purpose of Section 304-A(a) of Indian Penal Code, the word ‘person’ includes a child
born or unborn. A child in womb can be regarded as a living entity with a life of its
own. In Hindu law a child in womb is deemed to be in existence as a person and is
entitled to share the joint family property.33 Thus, the fundamental rights which are
variable to any ‘person’ may also be available to a child. Thus, it is quite clear that
children have been given full protection under fundamental rights.

Besides the above mentioned provisions, there are also certain other
provisions contained in Part IV, dealing with the Directive Principles of State Policy,
which although do not lay emphasis on the child welfare directly, yet the children are
bound to be the beneficiaries if these provisions are implemented. The Directive
Principles of State Policy embodied in the Constitution of India provides policy of
protection of children with a self-imposing direction towards securing the health and
strength of workers, particularly to see that the same in the children of tender age is
not abused, nor they are forced by economic necessity to enter into avocations
unsuited to their age or strength.

32
Lakshmi Kant V. India, AIR 1984 SC 469.
33
K.S. HEDGE, The Directive Principles of State Policy, The Constitution of India (National 1972).
P.17.
 22

The underlying principles of the Directive Principles of State Policy are “To
fix certain social and economic goals for immediate attainment by bringing about a
non-violent social revolution.” Through such a social revolution the Constitution also
seeks to achieve the objectives of the child welfare. To achieve the goals of child
welfare, the constitution has some provisions in Part IV. The Directive Principles of
State Policy have been designed with an earnest zeal to strive to promote the welfare
of people by securing and protecting as effectively as it may a social order in which
justice, social, economical and political shall inform all the institutions of national
life. Naturally, an effective implementation of this principle results, in promoting the
welfare of the people through social, economic and political justice and in this turn is
expected to promote proportionately, the child welfare also.

Article 29(e) and (f) direct the state to evolve a policy eliminating the abuse of
tender age and to free children from the circumstances forcing them to enter into
avocations unsuited to their age or strength. The state is also directed to create social
and economical conditions and infrastructural for the healthy development of children
and to provide facilities and climate for exercise of freedom and maintenance of
dignity. The State is further directed to protect the children against exploitation and
moral and material abandonment.34

Article 41 deals with the right to work, to education and public assistance in
certain cases. Though it does not mention children, the ending words “…..and in other
cases of undeserved want.” Article 41: Right to work, to education public assistance
in certain cases: The State shall be within the limits of its economic capacity and
development make effective provision for securing the right to work, to education and
to public assistance in case of unemployment, old age, sickness and disablement, and
in other cause of deserved what. It covers the children as the suffering children
deserved the least fate as in no case they can be held responsible for their past sins.
Hence, it is the duty of state to provide social assistance to all the children who suffer
for want of basic necessities of life. The implementation of this provision is also
expected to promote the welfare of the children proportionately and to ensure
distributive justice to them.

34
Madhya Pradesh Bal Adhiniyam, 1970, Section 2(1): Uttar Pradesh Children Act, 1952, Section 2(4).
 23

Article 42 requires the state to make provisions for securing just and humane
conditions of work and for maternity relief. The measures for maternity relief meant
for expectant mothers and mothers during the period of pregnancy and after the child
birth. These measures meant for providing proper health care and other facilities to
the mothers before and after the child birth are expected to promote the health of
children and to provide healthy environments for their bringing up.

Under Article 45 a duty is imposed upon the state to provide free and
compulsory education within a period of ten years of the commencement of the
constitution for all the children until they complete the age 14 years. This Directive
signifies that it is not only confined to primary education, but extends to free
education whatever it may be upon the age of 14 years. Article 45 is thus
supplementary to Article 24 on the ground that when the child is not to be employed
before the age of 14 years, he is to be kept occupied in some educational institutions.
It is suggested that Article 24 in turn supplements the clauses (e) and (f) of Article 39,
thus ensuring distributive justice to children in the matter of education. It is suggested
that Articles 24 and 45 should be amended so as raise that age limit from 14 to 16
years. By doing so the children’s education at least upto matriculation, would be
ensured or the proper growth and development of their personality. There are various
state Acts, which stipulate the upper age limit of 16 years.

Article 46 provides that the state shall promote with special care, the
educational and economic interests of the weaker section of the people, and in
particular, of scheduled castes and the scheduled tribes, and shall protect them from
social injustice and all forms of exploitation.35 The implementation of this principle,
while promoting the economic and educational interests of the weaker section of the
people particularly those of scheduled castes and scheduled tribes, will indirectly
promote the welfare of the children of these sections of the society need the welfare
measures most because of the appealing poverty and backwardness of their parents.

Article 47 imposes a primary duty upon the state to raise the level of nutrition
and the standard of living of its people and improvement of public health. Thus, it is
the responsibility of the state to provide nutritious food to the children as the word

35
Child Labour A Global Challenge, Shakeel Ahmad Khan, Senior Research Officer, Foreword by
Prof. I.S. Chauhan, Hon’ble High Commissioner of India, Suva, Fiji, DEEP & DEEP
PUBLICATIONS (P) LTD. New Delhi. P.76.
 24

“people” includes not only adults but children as well as perhaps this provision
becomes more relevant in case of children as the malnutrition can cause irreparable
danger to the personality of the children though mental retardation and blindness.

Though these directives are not enforceable by the Court, yet these have been
declared to be fundamental in the governance of the country. It is the obligation of the
state to apply these principles in making laws. If the government ignores them it will
certainly have to answer for them before the electorate at the time of the election.
Thus, it will not be correct to say that there is no sanction of enforceability behind
these directives. In our democratic set-up, vigilant public opinion is the real force
behind the political institution which stands for the benefit of individual. The actions
of the government are subject to scrutiny by the masses and distinguished leader of
the different parties. If the government pursues a policy in accordance with the
principles of the Constitution, people tolerate it, otherwise they oust it in the next
election. Since these directives relating to the welfare of children have also been
embodied in the constitution, the government is apt to implement them. Though they
do not have legal force behind them but the highest tribunal, i.e., public opinion is
behind them.

Furthermore, Article 31-C gives procedure to all the directive principles over
the fundamental rights. According to this Article, if a law is enacted for giving effect
to any of the directive mentioned in Part IV its validity cannot be challenged in the
courts of Law on the ground that it is inconsistent with or takes away or abridges any
of the rights guaranteed by Article 14 or 19 of the constitution. This position has now
been altered by the Supreme Court in Minerva Mills case in which the Court held that
Article 31-C to the extent it was amended by 42nd Amendment Act is unconstitutional.
It is now confined to directives contained in Article 39(a) and (c) however, the court
will have power to examine whether the law is really intended to give effect to
directives or it is intended, in the guise of giving effect to directives, to achieve some
other purpose.36

36
Constitutional prescriptions, Planning perspective and profile of children, Upadhyaya, M.L.,
Kurukshetra Law Journal, Vol.7. P.11
 25

METHODOLOGY:

Doctrinaire approach has been adopted to complete this study. Several

conferences, conclaves and workshops are attended to gather the information
regarding the rights of women and children. The scholar has attended the seminars
being attended by the women organizations on the international women’s day
observed on 8th March. Several judgments pronounced by Supreme Court and High
Courts are consulted by the scholar to know how the women rights are protected.
Scholar has visited several libraries such as Dr. V.S. Krishna library, Andhra
University, the District library, Visakhapatnam, the library of Acharya Nagarjuna
University, State library at Hyderabad and the library of National Academy for legal
studies and Research at Hyderabad to collect the necessary literature to complete the
study. Several international documents such as Beijing declaration, Beijing +5
declaration, and Mexico and Copenhagen declarations are consulted to have a grip on
the women rights. The reports of national commission for women are also consulted.
The schemes of the central government for the protection of child rights are studied.
National Child Labour Projects and the abolition of child labour Act and other Acts
pertaining to the welfare of child are consulted. International conferences and
decisions regarding the welfare of child have been studied. This methodology adopted
by the scholar is helpful for him to conduct authentic study to prepare a proper thesis.

SIGNIFICANCE OF THE STUDY:

Human Rights are a vast subject. No boundaries for the subject can be fixed.
Present study is confined to the rights of vulnerable sections like women and children.
The women are subjected to several hardships by their male compatriots. In India the
dowry problem is still an unsolved question. Despite of several debates, discussions
and Parliament Acts no fruitful results are yielded. The women reservation bill in the
Parliament has not been enacted. Most of the women are economically not
independent. They have no social security. Similarly the child rights are neglected.
The young children are employed at Hazards industries. They are deprived to enjoy
their beautiful life of childhood. They are denied education and recreation. Hence the
international community has accorded some rights to children which are approved by
the government of India also. All these issues have been discussed in this study in a
careful manner.
 26

OBJECTIVES OF THE STUDY:

1. The first objective of the study is to bring out the concept of the term
vulnerability.
2. The second objective is to bring out the efforts of UN general assembly to
guarantee human rights for the women through various platforms.
3. The third objective is to connote the Indian response to the international for a
by providing rights to the women in India.
4. The fourth objective is to study the rights to be guaranteed at the international
level for the welfare of the children.
5. The fifth objective of the study is to know the rights to be guaranteed to the
children in India.
6. The sixth objective is to know the implementation part of the rights at the
national and international level.

REVIEW OF LITERATURE:

The methodology adopted for this study is doctrinal. The primary purpose of
the study is to test the Hypothesis, which have been framed on Human Rights of the
vulnerable groups with a special reference to women and children. The study is
primarily conducted to ascertain the position of women in the Indian society and their
amenability to basic needs and thereby to draw the needed requirements to fulfill the
meaning of existing life of women. And the study is also focused on the care and
protection of the children. Before groining to know the basic rights of the children, it
is primary to evaluate the position of the children in the Indian society and to know
their basic needs and to examine their abuse in the society. After knowing the position
of the child in the society, it is axiomatic to find out the international and national
initiatives for the care and protection of the children. As the study is confined
doctrinal, it needs to refer various documents of international and national importance
on the protection of vulnerable groups with specific reference to women and children.
So the study is obviously required here extensive, substantial documentary sources.
To acquire adequate and substantial data, the scholar had made his own efforts to
collect the data by visiting various libraries, Governmental and Non-governmental
and Personal Libraries of the eminent scholars, works and publications of the relevant
 27

authors on the study. The entire mobilized data has been segregated into Primary,
Secondary and Tertiary Sources.

I). Primary Source: The Primary Source of Data for this study is as:
1. The UN Charter on Human Rights, UN Conventions on the Human Rights,
Resolutions of International Agencies on the protection and promotion of Human
Rights reference to women and children.
2. Various provisions of the “Indian Constitution” on the protection of Human Rights
as mentioned under chapter III of fundamental rights and other related provisions of
the constitution, which guarantees the rights of the women and children either under
Directive Principles of State Policy or under other parts of the Indian Constitution.
3. Laws relating to women: Commission of Sati (Prevention) Act, 1987; Criminal
Law (Amendment) Act, 1983; Dowry Prohibition Act, 1961; Immoral Traffic
(Prevention) Act, 1956; Indecent Representation of Women (Prohibition) Act, 1986;
National Commission for Women Act, 1990; Prohibition of Sexual Harassment of
Women at the Workplace Bill, 2010; Protection of Women from Domestic Violence
Act, 2005; Laws relating to working women Contract Labour (Regulation and
Abolition) Act, 1976; Maternity Benefit Act, 1961 (Amended in 1995); Laws relating
to marriage & divorce; Family Courts Act, 1984; Foreign Marriage Act, 1969; Hindu
Marriage Act, 1955; Hindu Marriages (Validation of Proceedings) Act, 1960; Indian
Divorce Act, 1869; Indian Divorce Amendment Bill, 2001; Indian Matrimonial
Causes (War Marriages) Act, 1948; Marriage Laws (Amendment) Act, 2001;
Marriages Validation Act, 1892; Muslim Women (Protection of Rights on Divorce)
Act, 1986; Prohibition of Child Marriage Act, 2006; Special Marriages Act, 1954;
Laws relating to maintenance; The Code of Criminal Procedure, 1973; Pre-Natal
Diagnostic Techniques (Regulation & Prevention of Misuse) Amendment Act, 2002;
Laws relating to property, succession, inheritance, guardianship & adoption;
Guardians & Wards Act, 1890; Hindu Adoptions & Maintenance Act, 1956; Hindu
Inheritance (Removal of Disabilities) Act, 1928; Hindu Minority & Guardianship Act,
1956; Hindu Succession Act, 1956; Hindu Succession (Amendment) Act, 2005;
Indian Succession Act, 1925; Indian Succession (Amendment) Act, 2002; Married
Women’s Property Act, 1874; Married Women’s Property (Extension) Act, 1959;
Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013
 28

and the subsequent Rules have been framed and put to operations on 9th December,
2013 and etc.

4. Laws relating to children: Child Labour (Prohibition & Regulation) Act, 1986;
Child Marriage Restraint Act, 1929; Children Act, 1960; Children (Pledging of
Labour) Act, 1933; Commissions for the Protection of Child Rights Act, 2005; Infant
Milk Substitutes Act, 1992; Infant Milk Substitutes Act, 2003; Infant Milk
Substitutes, Feeding Bottles & Infant Foods (Regulation of Production, Supply &
Distribution) Act, 1992; Infant Milk Substitutes, Feeding Bottles & Infant Foods
(Regulation of Production, Supply & Distribution) Amendment Act, 2003; Juvenile
Justice (Care & Protection of Children) Act, 2000; Juvenile Justice (Care &Protection
of Children) Amendment Act, 2006; The Child Labour (Prohibition And Regulation)
Amendment Act, 2016 and etc.

II). Secondary Source: Various literature works of eminent authors on Human

Rights protection. Here the data is collected from the international authors as well as
national. Consolidation of the data is not only related to the literal work, but also
extracted their opinion or reviews in various forms. The researcher has also personally
consulted the eminent personalities who are expertise in Human Rights protection
field and the NGO’s who are working in the relating domain and thereby adopted
their field experience to include in the study for the protection of rights.

III). Tertiary Sources: The researcher has also utilized the service of the Internet for
the study by accessing various authenticated websites which provide valuable
information on Human Rights protection and the study also pursued the modern
electronic data which is popularly known as social media – Facebook and Twitter.
The study includes a considerable quantum of information on day to day development
on Human Rights protection collected through the journals, periodicals, magazines
and newspapers etc.
 29

HYPOTHESIS:

The problems of women and children are many. They are regarded as
vulnerable sections. The term vulnerability cannot be defined in an authentic manner.
The conditions of women through the ages are bad. In order to provide better life the
international community has provided human rights for women. Series of conferences
is held to discuss the implementation of the rights granted to women. The UN General
Assembly has dissatisfied with the state parties for their failure to protect the rights. In
India several steps have been taken for the protection of women's rights on the
guidelines issued by the world body. Similarly the children are another vulnerable
section. The UN General Assembly and ILO have coordinated together to protect the
rights of the child. The government of India has abolished the child labour and
guaranteed the rights such as happy life education recreation and right to get affection
from their parents and the society. India has approved the international convention
regarding the protection of the rights of the child.

The following Hypotheses are framed to test the vulnerability of women and
children for their care and protection as:

1. Vulnerability of women and children in India.

2. The status of the Women in Indian society.
3. Care and protection of the children in India.
4. Adequate educational and health facilities for the women and children in
India.
5. Protection and abolition of child labour.
6. International protection of the rights of women and children
7. Indian constitutional protection of the rights of women and children.
8. Policy initiatives of the Indian Government for the care and protection of
women and Children.
9. Implementation process of the rights of women and children.

The initiatives of the Central Government and the State Governments through
various of their schemes and programs to improve the conditions of women and
children.
 30

PLAN OF STUDY:

The study has been divided into Seven Chapters.

The First Chapter is “Introduction”. In this chapter, the entire theme of the
study has been described briefly into different headings. Women position in Indian
society and vulnerability due to lack of basic amenities and rights and child abuse and
the need of basic care and protection. Human Rights protection and promotion are
discussed in universal perspective as well as national perspective and stated various
constitutional safeguards as well as the Central and the State Government statutory
initiatives for the protection of basic Human Rights of the women and children.

The Second Chapter entitled “Vulnerability Conceptual Persecutes” this

chapter includes the meaning and definition of the term vulnerability, concept of
vulnerability, problems of the vulnerable sections of the society, vulnerable groups
with respect to Women and Children, contemporary trends etc.

The Third Chapter of this study is “Protection of Women Rights-

International Perspective”. The women were treated as second-rate citizens till the
Second World War. The United Nations have concentrated on women across the
globe. The UN general assembly has made several efforts for the all-round
development of women. Series of conventions have been conducted to guarantee the
rights of the women. In this chapter, prime emphasis has been laid down on the issues
like protection of women's rights, the importance of international instruments on
women's rights, CEDAW and etc. The chapter also deals with the women's rights of
political, Economic, Family, rights of reproduction and right to employment etc..

The Fourth Chapter is entitled “Protection of Women Rights-National

Perspective”. The women shall enjoy certain basic rights and privileges as the
opposite gender. It is the obligation of not only the international community and other
non-governmental and governmental instruments but of the respective State. As an
obligation of the State, the government of India and all the State governments in India
have monitored the position of women from time to time on the guidelines provided
by the UN general assembly for providing basic rights to women. The chapter has
focused on the issues like the position of women under the constitution of India,
political reservations, right to education, right to employment, family rights and
 31

family courts, present status of the National Commission on women’s rights

protection.

The Fifth Chapter is entitled “Rights of Children-International Perspective”.

The children should be given utmost priority for their all-round development. For this
all-round development, the UN general assembly accords on rights of the children.
Here the definition of the term “Child” has been discussed. The efforts of various
International instruments and agencies on rights of child have been discussed in this
chapter. Here also mentioned the UN conventions for the protection of child rights,
ILO on Child labour, International year for child welfare, Right to education for the
children, Social and cultural rights for children etc.

The Sixth Chapter is “Rights of Children- National Perspective”. On the

guidelines of UN General Assembly the Indian Parliament has enacted several laws to
approve child rights. From 1986 several steps have been taken by the government of
India to protect the child rights. The Indian initiatives on care and protection of the
children are praiseworthy after successful implementation of the rights on children
like Right to Education of Children, Right to Social Security, Prohibition of Child
Labour, the Problem of Juvenile Delinquency, Problem of Street Children, the
legislations of the Central and the State Governments on the child protection etc. The
Constitution of India in the Fundamental Rights and the Directive Principles of State
Policy prohibits child labour below the age of 14 years in any factory or mine or
castle or engaged in any other hazardous employment. India has enacted “The Right
of Children to Free and Compulsory Education Act” in 2009 which mandates free and
compulsory education to all children aged 6 to 14 years. This legislation also
mandated that 25 per cent of seats in every private school must be allocated for
children from disadvantaged groups and physically challenged children. In this
chapter also the efforts of various NGOs on child rights protection have been
included.

The Seventh Chapter is “Conclusion & Suggestions” in which the researcher

after careful examination of the collected data from various authenticated sources has
enlisted some of valuable suggestions for the better protection and care of the Women
and Children. These suggestions also include the accessibility of Human Rights for all
those who are in vulnerability.
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Since the 1990s, activists have embarked on a mission to create a new global
community and the notion of women’s rights as human rights is intrinsic to it.
Women’s human rights now hold out the promise of a good life, free from torture,
intimidation, scarcity, and pollution with access to good education, health care
choices about childbearing and meaningful work. The Beijing Conference for Action
on commitments to set moral standards for women. Though the Constitution of India
guarantees equality of all citizens' before the law still women carry the burden of
centuries of subordination thereby making it difficult for them to realize their
constitutional rights. The Government of India reaffirms its commitment to work for
the realization of the constitutional guarantee of equality, social justice and non-
discrimination on the basis of sex, caste, community, language and religion. Names
like Kalpana Chawla: The Indian born, who fought her way up into NASA and was
the first women in space, and Indira Gandhi: The Iron Woman of India was the Prime
Minister of the Nation, Beauty Queens like Aishwarya Rai and Susmita Sen, and
Mother Teresa are not representative of the condition of Indian women.

India is home to the largest child population in the world. The Constitution of
India guarantees Fundamental Rights to all children in the country and empowers the
State to make special provisions for children. The Directive Principles of State Policy
specifically guide the State in securing the tender age of children from abuse and
ensuring that children are given opportunities and facilities to develop in a healthy
manner in conditions of freedom and dignity. The State is responsible for ensuring
that childhood is protected from exploitation and moral and material abandonment.

Considering all Human Resources including vulnerable sections of the people

as an asset of the nation, the Government of India has reiterated its commitment to
secure the rights of vulnerable by ratifying related international conventions and
treaties. These include Universal Declaration of Human Rights and its Covenants, the
United Nations Convention on the Rights of Persons with Disabilities, the United
Nations Convention against Transnational Organized Crime, the Protocol to Prevent,
Suppress and Punish Trafficking in Women and Children, the Hague Convention on
Protection of Children and Cooperation in respect of Inter-Country Adoption, and the
Convention on the Elimination of All Forms of Discrimination against Women, the
Declaration of the Rights of the Child, the Convention on the Rights of the Child and
its two Optional Protocols etc.
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The researcher has come to conclusion after testing his hypothesis that the
International efforts and national initiations are not adequate for the protection of the
Human Rights of the vulnerable groups especial the women and children. There shall
be more adequate commitments by the International Community as well as the
respective States for protection and promotion of Human Rights of vulnerable groups
especially women and children.

With this introduction and findings of my research, now I am presenting to

you the next Chapter i.e. on Vulnerability Conceptual Persecutes.