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1.3.4 Other Fundamental Rights (Unremunerated Fundamental Rights)

A number of rights are not stated in the Covenant, are not even laid down in part III of the Constitution. In A.D M. Jabalpur V. S. Shukla[1] the Supreme Court by a majority of four to one, held that the Constitution of India did not recognize any natural or common law rights other than that expressly conferred in the Constitution. Though the attitude of the Supreme Court has changed especially after 1978. The courts on many occasions by accepting the rule of judicial construction have held that regard must be paid to International Conventions and norms for constructing domestic law.

In Maneka Gandhi v. Union of India,[2] Justice Bhagwati in the Special Bench for the Supreme Court observed that:

The expression ‘personal liberty’ in article 21 is of the widest amplitude and it covers a variety of rights, which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. No person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him; and the deprivation is effected strictly in accordance with such procedure.

The following rights are contained in the Covenant on Civil and Political Rights. They are available to the citizens of India through judicial decisions, even if and though they are not specifically mentioned in the Constitution.

• Right to travel abroad (Article 21): The right to travel abroad is a guaranteed right under Article 12 paragraph (2) of the Covenant on Civil and Political Rights. In Sathwant Singh Sawlmey D, Ramanathan, Helpant Passport Officer,[3] New Delhi, the Court held that the right to go abroad is part of an individual’s personal liberty within the meaning of Article 21,
• Right to privacy (Articles 21 and 19 (1) (d)): This right is stipulated under Article 17 paragraph (1) of the Covenant on Civil and Political Rights. In Kharak Singh v. State of Uttar Pradesh[4] it was held by the Supreme Court that the ‘domiciliary visits’ is an infringement of the right to privacy and is violative of the citizen’s fundamental rights of personal liberty guaranteed under Article 21.
• Right against solitary confinement
• Right to human dignity
• Right to free legal aid in a criminal trial
• Right to speedy trial
• Right against handcuffing
• Right against delayed execution
• Right against custodial violence
• Right against public hanging
• Right to health care or doctor’s Helpance
• Right to shelter
• Right to pollution free environment
• Freedom of the press
• Right to know
• Right to compensation
• Right to release and rehabilitation of bonded labor
• Right of inmates of protection homes

Thus we can notice that how the rights, whether formally enshrined or not, whether available to citizens or non-citizens, form such a palpable ingredient in being able to lead a life.

Moving ahead, we can focus upon the rights and bills that are specifically concerned with child rights and encapsulated to guarantee Helpance to child development. This study aims to focus on the issue of child trafficking; a concern deeply embedded in the larger canvas of human trafficking which broadly includes other than child.

The Article 21 (A) of the constitution of India deals with the Right to Child Education included in the Constitution by the Eighty Sixth Constitution Amendment Act, 2002. In order to make the right to free and compulsory education for a child, the Constitution’s 83^rd Amendment Bill 1997 was introduced in Rajya Sabha to insert a new article 21 A in the Constitution. However, the Bill was withdrawn on November 27, 2001. On November 28, 2001 the Constitution 93^rd Amendment Bill 2001 was introduced and passed by unanimous vote in the Lok Sabha, and the on May 14, 2002 in Rajya Sabha with formal amendments as 86^th Constitutional amendment.

Before the Constitutional process started for making the right to education a fundamental right, the Supreme Court in J. P. Unnikrishnan and others v. The State of Andhra Pradesh[5] held that every citizen of this country has the right to free education until he completes the age of fourteen years. Indeed there is not a doubt that such a right if rightly enforced, could be directly or indirectly responsible for mitigation of many problems including trafficking.

The detailed discussion of child rights and timely measures adopted to safeguard childhood will not be complete without the discussion of POSCO Bill. The President of India on June 12, 2012 assented the Act. . This Act was introduced to protect children from offences of sexual assault, sexualharassment and pornography and provide for establishment of Special Courts for trials of such offences and for matters connected therewith or incidental thereto. The very same consequences of child trafficking are dealt with in such laws. It can be well noted that Clause (3) of the Article 15 of the Constitution empowers the State to make special provisions for children and in India. The wellbeing of a child are regarded as being of paramount importance at every stage, as the law operates in a manner to ensure a healthy physical, emotional, intellectual and social development of a child.

Further to monitor the implementation of the objectives enshrined in the constitution the Central Government has appointed a National Commission for Minorities, a National Commission for Scheduled Castes and Scheduled Tribes and a National Commission for Women. The National Human Rights Commission (NHRC) came into being in 1993 by virtue of the Protection of Human Rights Act. NHRC has become an agency to figure with, and has carved out a place for itself in the assortment of Indian national institutions for implementation of human rights.

India is also a party to the United Nations Conventions on the Rights of the child, adopted on December 11, 1992 .The convention has prescribed a certain set of standards in order to ensure and secure the best interests of the child. India being a party to this convention, is obligated to follow all the set of standards in guaranteeing such safeguards to child/children.

The State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent-

1. inducement or coercion of a child to engage in any unlawfulsexual activity
2. the exploitative use of children in prostitution or other unlawful activity
3. the exploitative use of children in pornographic performances and materials

This Act is enacted by the Parliament to be extended to all the parts of India, excepting Jammu and Kashmir. This brings our notice to laws and Acts that extends to even Jammu and Kashmir.

India is also a signatory to the UNCRC which defines the age of a child i.e. below 18 years. Countries all over the world use this definition. A child between the ages of 0-18 years is not allowed to vote, sign a contract or engage a lawyer.

The Juvenile Justice Act enacted in India in 1986 (which was enacted in Jammu and Kashmir too by 1997, and the rules adopted in Jammu and Kashmir by 2007) came as beginning of the Juvenile Justice (Care and Protection of Children)Act 2000. The Juvenile Justice (Care and Protection of Children) Act 2000 is the primary legal framework for juvenile justice. The Act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. This law, brought in compliance of Child Rights Convention 1989, repealed the earlier Juvenile Justice Act of 1986 after India signed and ratified Child Rights Convention 1989 in year 1992. This Act has been further amended in year 2006 and 2010.

Technically even though this Act talks about Juvenile only , it is nevertheless essential in our study of child trafficking for this age group which according to India, are also highly targeted and disregarding the technical and formal description of age, this age group (16-18) ends up being a vulnerable target to human trafficking.

The Juvenile Justice (Care and Protection of Children) Act is considered to be an extremely progressive legislation and Model Rules 2007 have further added to the effectiveness of this welfare legislation. However the implementation is a very serious concern even in year 2013 and Supreme Court of India is constantly looking into the implementation of this law in Sampurna Behrua Versus Union of India and Bachpan Bachao Andolan Versus Union of India. In addition to Supreme Court, various High Courts in India, specifically Bombay High Court and Allahabad High Courts are also monitoring implementation of JJ Act in judicial proceedings. In order to upgrade the Juvenile Justice Administration System, Government of India launched Integrated Child Protection Scheme (ICPS) in year 2009-10 whereby financial allocations have been increased and various existing schemes have been merged under one scheme.

1.4 Other Measures of Protection of Human Rights under Indian Law

• The Protection of Civil Rights Act, 1955
• Suppression of Immoral Traffic in Women and Girls Act, 1956
• Maternity Benefit Act, 1961
• Dowry Prohibition Act, 1961
• Equal Remuneration Act, 1976
• Bonded Labour (Abolition) Act, 1976
• Employment of Children Act, 1938 (Amended in 1985)
• The Child Labour (Prohibition and Regulation) Act, 1986
• Juvenile Justice Act, 1986
• Indecent Representation of Women (Prohibition) Act, 1986
• Sati (Prevention) Act, 1987
• The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
• The National Commission for Women Act, 1990
• The National Commission for Minorities Act, 1992
• The National Commission for Safari Karamcharis Act, 1993
• The National Commission for Backward Classes Act, 1993
• The Mental Health Act, 1993

1.5 Fundamental Duties and Human Rights

Part IV(A) of the Constitution vests the Fundamental Duties of every Indian citizen (Article 51-A). This clause was inserted by 42^nd Amendment 1976. The duties are to respect the Constitution and its institutions, to live by the noble ideals of the freedom struggle, to protect the sovereignty and integrity of India, to defend the country, to promote communal harmony, to renounce practices derogatory to the dignity of women, to preserve the cultural heritage, to protect and improve the natural environment, to have compassion for living creatures, to develop the scientific temper, to safeguard public property and abjure violence and to strive towards excellence in all spheres of individual and collective activity. In 2002 The Eighty- sixth Constitutional Amendment inserted a new clause (k) in Article 51(A) making it the duty of parent or guardian to provide opportunities for education to his child or as the case may be, ward between the ages of 6 and 14 years.

In the subsequent years it appeared that parts III, IV and IV (a) of the Constitution are heavily depended upon the judiciary for their interpretation and application. The various ‘reasonable restrictions’ clauses mentioned in Part III, Article 21, and the rarely used Part IV-A have given the judiciary ample scope for reviewing the administrative and legislative action. Infact, Article 21 has allowed judicial institutions to act as a catalyst in pushing the State to implement the DPSPs with respect to the “life and personal liberty.”

1.6 Directive Principles of State Policy and Human Rights

The non-enforceable rights in Part IV of the Constitution are mainly those of economic and social in nature. However, Article 37 makes it clear that despite being non enforceable it does not weaken the duty of the State to apply them in making laws, due to their fundamental nature. Additionally, the innovative jurisprudence of the Supreme Court has now read into Article 21 (the right to life and personal liberty) many of these principles and made them enforceable.[6]

Reading in nutshell we can find that they demarcate the duties of the State, i.e. encompassing securing a social order with justice, social, economic and securing for “the citizens, men and women equally” the right to an adequate means of livelihood. (Article 38). They directdistribution of ownership and control of community resources to subserve the common good., prevent concentration of wealth and means of production to the common detriment , secure equal pay for equal work for both men and women, prevent abuse of labor, including child labor , ensure child development , ensure equal justice and free legal aid organize village democracies (Article 39). In Article 40, constitution sates the provision of the right to work, education and public Helpance in case of unemployment, old age sickness and disability. Article 41 vests provision of humane conditions of work, whereasArticle 42 entails the living wage and a decent standard of life and so on so forth.

Hence it can be witnessed that these directives aim to include the indispensable provisions for development of child and education for children amongst the other essential directives i.e. to provide for human rights and decent standard of living.

1.7 Political Rights and Human Rights

India being the largest representative democracy in the world is based on universal adult suffrage, providing every Indian of at least eighteen years of age the right to vote. The Constitution of India provides for direct elections to the House of the People of the Central Parliament, i.e. the Lok Sabha and the State [Provincial) Legislative Assemblies, once in every five years..

The right to vote, the; right to contest elections, and the conduct of elections are all governed by the Constitution (Part XV) as well as special laws like the Representation of the People Act, 1951. 1.8 Judiciary and Human Rights

The vanguard of human rights, the Judiciary is one of the three organ of Government in India. It performs this function by innovative interpretation of the constitution with regard to the human rights provisions. The Supreme Court in the case Ajay Hasia v. Khalid Mujib[7] declared that it has a special responsibility, “to enlarge the range and meaning of the fundamental rights and to advance the human rights jurisprudence.”

The Supreme Court of India and the State High Courts have unequivocal powers under the Constitution to enforce the fundamental rights and it has liberally interpreted these powers.

The major contributions of the judiciary to the human rights jurisprudence have been two-fold:

(a) The substantive expansion of the concept of human rights under Article 21 of the Constitution, and

(b) The procedural innovation of Public interest Litigation.

1.8.1 Expansion of Article 21

Article 21 remains the core concern in our discussions of human rights and it is essential to read it in much details. Article 21 reads as follows, –

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

The expansion of Article 21 of the Constitution has taken place in two respects:

• The expression “the procedure established by law” was interpreted in the case A.K. Gopalan v. State of Madras[8] in the year 1950, the very first year of the Constitution, the Supreme Court in, reflecting on the intentions of the Constitution-makers, held that “procedure established by law” only meant that a procedure had to be set by law enacted by a Legislature. This phrase was deliberately used in Article 21 in preference to the American “Due Process” clause.
• Three decades later, in Maneka Gandhi v. Union of India case, the Supreme Court noted that “the Supreme Court rejected its earlier interpretation and holds that the procedure contemplated under Article 21 is a right, just and fair procedure, not an arbitrary or oppressive procedure.”[9] The procedure, which is reasonable and fair, must now be in conformity with the test of article 14 — “in effect it has become a Due Process.” There is no doubt that the experience of National Emergency (1975-1977) prompted the court to go all out for vindication of human rights.
• Since Maneka Gandhi’s case, every case of infringement of rights by the Legislature has undergone judicial scrutiny in terms of the new guideline laid down by the Supreme Court of India. Further, this case led to the establishing of the due process norm, which included rights like, right to claim legal aid for the poor and the right to expeditious trial etc.[10]

• The judiciary interpreted ‘the right to life and personal liberty” to comprehend all basic conditions for a life with dignity and liberty.

The judiciary has interpreted the word “Life” to include the right to possession of each organ of one’s body and a prohibition of torture or inhuman or degrading treatment by Police. In the Francis Coralie Mullin v. The Administrator, Union territory of Delhi[11] case, the Supreme Court held that “life” couldn’t be restricted to mere animal existence, or physical survival.

Hence it can be summed up that the right to life means the right to live with dignity and availing the basic necessities of life such as adequate nutrition, clothing, shelter and facilities for reading, writing and expressing oneself.

Many cases in High Courts and the Supreme Court often revealed “a shocking state of affairs and portray a complete lack of concern for human values.”

. Justice Bhagwati held “if a person is deprived of his liberty under a procedure which is not ‘reasonable’, ‘fair’ or ‘just’, it would fall foul of Article 21. The following cases will through light that how time and again this Fundamental right has come to the rescue during the violation of Fundamental Rights. In Deoraj Khatri v. State of Bihar [12]case the Police brutality was raised in which 80 suspected criminals were brutally blinded during Police investigation (Bhagalpur Blinding case). The Supreme Court condemned it as a “barbaric act and a crime against mankind.” Where as in Sheela Barse, The State of Maharashtra case, the Court was heard the plight of custodial violence against women and in judgment it laid down certain guidelines against torture and ill treatment of women in Police custody and jails.

The Supreme Court has held a right to monetary compensation for deprivations of the right to life and liberty suffered at the hands of the State under Article 21. In, Paramanand Katra v. Union of India, The health problems of workers in the asbestos industry led the Supreme Court to rule that the right to life and liberty under Article 21 also encompasses the right of the workers to health and medical aid.[13]

[1] A.I.R. 1976 S.C. 1207 at 1293

[2] A.I.R. 1978 S.C. 597

[3] A.I.R. 1967 S.C. Delhi 1836

[4] A.I.R. 1963 S.C. 1295

[5] A.I.R. 1993 S.C. 645 at 733.

[6]Justice Sujatha V. Man3har, “Judiciary and Human Rights,” Indian Journal

of International Law (Vol. 36, Nc1.2, 1996): 39-54.

[7] A.1.R .I981 S.C. 487 at 493.

[8] A.I.R. 1950 S.C 27

[9] A.I.R. 1978 S.C. 597

[10]

[11] A.I.R.98.1. S.C . 746.

[12] A.I.R. 1981 S.C. 928

[13] A.I.R. 1989 (4) S.C.C. 286.