Human Rights of Women Appear To Be Only Talking Points And Not Actionable: Justice Madan Lokur [Video&Full Text]

Arabhi Anandan

12 Dec 2019 9:23 AM GMT

  • Human Rights of Women Appear To Be Only Talking Points And Not Actionable: Justice Madan Lokur [Video&Full Text]

    "The human rights of women and girls appear to be only talking points and not actionable points. I say this because there are more than enough funds available for women’s safety, but these are not being utilized"

    Retired Justice Madan B. Lokur while delivering a lecture on Human rights during First Justice Sachar Memorial lecture said, jurisprudence is an extremely vast topic of discussion and it is not advisable to limit it to human rights as defined in the Protection of Human Rights Act, 1993. This Act limits human rights to mean the rights relating to life, liberty, equality and the dignity of...

    Retired Justice Madan B. Lokur while delivering a lecture on Human rights during First Justice Sachar Memorial lecture said, jurisprudence is an extremely vast topic of discussion and it is not advisable to limit it to human rights as defined in the Protection of Human Rights Act, 1993. This Act limits human rights to mean the rights relating to life, liberty, equality and the dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.

    He added the human rights of children are perhaps the most neglected of all human rights. Unfortunately, this neglect impacts almost 40% of our population and future generations.

    "The failure to implement the rights of children, as recognized by the Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act) and the Convention on the Rights of the Child is a matter of grave concern. Day in and day out there are reports of the exploitation of children in varied activities, including child labour in hazardous occupations (such as mica mining), non-payment or delayed payment of wages that are much lower than prescribed and of course other forms of exploitation. It has been reported that one out of every 10 workers in India is a child and that children between the ages of 14 and 17 years engaged in hazardous work comprise of more than 60% of India's child labour workforce."

    He said, the National Policy for Children, 2013 provides that children in difficult circumstances are tracked, rescued, rehabilitated and have access to their right to education. While the objectives of the National Policy are more than welcome, what is important is the level of achievement and success in the implementation of the objectives. There is nothing in the public domain on this. Similarly, the National Plan of Action for Children, 2016 also has some excellent objectives and draws upon the Sustainable Development Goals to provide a broad framework, but again, the question is of implementation. Even Though, the State has introduced some measures like Operation Muskaan and Operation Smile that have achieved occasional success, follow up action is also necessary with regard to the rehabilitation and reintegration of rescued children into society. He added, the human rights can be used not only as a shield but also wielded as a sword.

    While talking about the worst violations of the human rights of the child, the custom of child marriage, he added child marriages take place across the country in spite of the Prohibition of Child Marriage Act, 2006 (and its predecessor, the Child Marriage Restraint Act, 1929) that specifically makes a child marriage a punishable offence.

    He said target 5.3 of the Sustainable Development Goals requires India to eliminate child, early and forced marriages by 2030 but the government did not provide any update on achieving the target during its Voluntary National Review at the 2017 High Level Political Forum.

    He emphasisied on the report prepared by the National Commission for the Protection of Child Rights in collaboration with Young Lives was released in June 2017 and is titled: "A Statistical Analysis of Child Marriage in India based on Census 2011". This report states, inter alia, as follows:

    "Child marriage is not only a violation of human rights, but is also recognized as an obstacle to the development of young people. The practice of child marriage cut shorts a critical stage of self-discovery and exploring one's identity. Child marriage is an imposition of a marriage partner on children or adolescents who are in no way ready and matured, and thus, are at a loss to understand the significance of marriage. Their development gets compromised due to being deprived of freedom, opportunity for personal development, and other rights including health and well-being, education, and participation in civic life and nullifies their basic rights as envisaged in the United Nations Convention on the Right of the Child ratified by India in 1989. Marriage at a young age prevents both girls and boys from exercising agency in making important life decisions and securing basic freedoms, including pursuing opportunities for education, earning a sustainable livelihood and accessing sexual health and rights."

    He also mentioned trafficking of young girls and even young boys is a matter of grave concern all over the country. He added, human trafficking is abominable per se and it is worse when children are trafficked in large numbers.

    He asked, "What could be more abhorrent than the trafficking of women and children for sexual favours? Are these human rights issues being addressed and remedial measures (if any) implemented?" He said, detailed report on trafficking has been prepared for the government, but for some reason it is not being released.

    "The tragedy of the public discourse about children is that while undue attention is paid to crimes committed by juveniles, very little attention is paid to crimes committed against children. Human rights are not a one-way street where only the accused have rights - even victims of crime such as children have rights which need to be enforced and greater importance given to victim rights. Monetary compensation to the family of a child is not enough."

    He added, the observation homes for children and other childcare institutions reveal a dismal state of affairs and these institutions are guided by the provisions of the Juvenile Justice Act and the rules framed thereunder, read with the requirements of the Convention on the Rights of the Child. However, very little has been done to improve the living conditions of children in many of these institutions. And regular reports are available in newspapers of unsavoury activities going on in some of these homes including complaints of sodomy.

    He observed, a debate is brewing on the bodily rights and integrity of a woman and her choices particularly with regard to her choice of aborting a foetus. A study reported by The Lancet concluded that in the year 2015, there were as many as 48 million pregnancies and almost 1/3rd of them, that is about 15 million women, underwent an abortion for a variety of reasons. He asked, Does a woman have an absolute human right to abort a foetus, even in a non-life-threatening pregnancy? He opined, this question can get further complicated if we consider unwanted pregnancies through rape not only of adult women but also of minor girls. He further asked, What is the choice before a woman whose bodily integrity has already been violated?

    "A study conducted by Pratigya has indicated that between 2016 and 2019 as many as 194 women had gone to different courts for the termination of their pregnancy, and of these 21 cases had been filed in the Supreme Court.4 A fairly large number of these cases related to pregnancies caused by the rape of young girls. What are the options before them? They are too young to make an informed choice and would have to face a variety of issues such as social stigma and the impact on mental health, lack of financial support to bring up a child perhaps as a single mother and so on. Unfortunately, we have not been able to develop any jurisprudence on this pressing human rights issue or arrive at a balance to tackle these situations or a balance between those championing the cause of free choices for women and pro-life activists."

    He added, the increasing incidence of sexual harassment of women, including rape, is another matter of grave concern. The report of the National Crime Records Bureau for 2017 (released in 2019) indicates that, on an average, a rape is committed every 15 minutes and 1/3rd of the victims are minors. Very few cases make it to the headlines. In addition to this, on an average, one woman is burnt to death every hour for dowry and 241 cases of sexual harassment are registered every day. It is not possible to guess how many rapes or dowry deaths or cases of sexual harassment or domestic violence are committed on a daily basis but not reported to the police. The human rights of women and girls appear to be only talking points and not actionable points. I say this because there are more than enough funds available for women's safety, but these are not being utilized.

    In his lecture on human rights, he also talked about the recent encounter between ten policemen and four accused persons, which resulted in the death of the accused, who were alleged to have planned and committed the brutal rape and equally brutal murder of a veterinarian in Telangana, which has led to a huge debate in the nation. He said, "many have celebrated the encounter deaths and many have condemned it. The full facts and details of the event are not yet available since the incident is pending inquiry. Therefore, it is not advisable to be judgmental about it, notwithstanding the reportage of some suspicious circumstances."

    He opined that it is necessary to be aware of the guidelines issued by the National Human Rights Commission on the subject of police encounters and also that the the first set of instructions given by the NHRC was through a communication issued by Justice M.N. Venkatachaliah on 29th March, 1997. The communication then briefly described and reiterated the correct procedure to be followed as laid down on 5th November, 1996 in the event of deaths in police encounters." These instructions were revised by the NHRC on 2nd December, 2003 and then again on 12th May, 2010 through a letter sent by Justice G.P. Mathur communicating the final guidelines.

    He added, "the letter clearly stated that the police does not have a right to take away the life of a person. Under the scheme of criminal law prevailing in India, it would not be an offence if the death is caused in the exercise of the right of private defence. Another provision under which the police officer can justify causing death is section 46 of the Criminal Procedure Code. This provision authorises the police to use reasonable force, even extending up to causing death, if found necessary to arrest the person accused of an offence punishable with death or imprisonment for life. Thus, it is evident that death caused in an encounter if not justified would amount to an offence of culpable homicide. The letter noticed that most of the States are not following the recommendations given by the NHRC in true letter and spirit. It then provided the revised procedure to be followed in all cases of deaths in the course of police action."

    He said, the revised guidelines of the NHRC provide, inter alia, that when information is received about death in an encounter, that information shall be entered in an appropriate register. Where the police officers belong to the same police station as members of the encounter party, it is desirable that such cases are made over for investigation to some other independent investigating agency. A magisterial enquiry must be held in all cases of death which occur in the course of police action preferably within three months and prompt prosecution and disciplinary action must be initiated if the members of the police party are found guilty in the magisterial enquiry or police investigation. It appears that subsequently guidelines were issued for conducting a magisterial enquiry and it was provided that the magisterial enquiry should now be conducted without undue delay and should cover a variety of aspects which include examination and verification of the records.

    "Hopefully, the NHRC will ensure that its guidelines are followed with regard to the police encounter in Telangana, notwithstanding the public sentiment and accolades showered on the police party. It would also be advisable if the report is placed in the public domain so that everyone is aware of the guidelines and recommendations given by the NHRC are followed in true letter and spirit. Sharing information is necessary since, according to the police in Uttar Pradesh, 103 criminals have been killed in encounters over the last two years but the investigation/magisterial enquiry reports in these cases are either not available or not easily available in the public domain for ascertaining whether the guidelines and recommendations of the NHRC have been followed or not. There is nothing secret about these incidents. It must also be remembered that the Supreme Court has held that the right to know is a human right."

    On conclusion of his lecture, he said, "I would like to conclude by very briefly mentioning the right to food for which PUCL launched a campaign and played a very seminal and active role. Justice Sachar was associated with this organization as its President from 1986 to 1995. The campaign eventually led to several orders passed by the Supreme Court which recognized the right to food as a human right and enactment of the National Food Security Act, 2013. Justice Sachar's contribution to the understanding and development of human rights is of considerable importance and goes back several decades and we must acknowledge it and salute his contribution through an annual Memorial Lecture."

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