Constitutional Rights and Safeguards provided to the vulnerable

groups in India

Submitted by: KUMAR VAISHNAV (2016UCO1529)

Introduction:
Human Rights are the basic right which is being provided by every constitution of every State and every
individual in this globe born with the inherent right of Human Right. The major problem faced by every
developing nation is that a large number of human sector falls under the poverty line.
In India, certain social groups such as the SCs, STs, OBCs and Minorities have in the past been deprived
and vulnerable to human rights. There are certain other groups which may be discriminated against and
which suffer from handicaps and the groups include persons with disabilities, older persons, street
children, beggars and victims of substance abuse.
The Constitution of India guaranteed to all the people of India the civil, political, economic, social, and
cultural rights for their realization by all sections of the polity without any kind of discrimination.
However, due to poverty, customary and cultural practices prevailing in the country, there has not much
opportunity offered to various groups and which lead to depriving them of being treated equally as the
other sections of the society. There are various disadvantaged groups of people such as women, children,
Scheduled Castes, Scheduled Tribes, Linguistic Minorities, Religious Minorities, Sexual Minorities etc.
In order to expand their rights, the Constitution of India has provided a number of concessions to protect
them from exploitation by other groups.

Vulnerable Groups:
Vulnerable groups are those groups of people who may find it difficult to lead a comfortable life and lack
developmental opportunities due to their disadvantageous position. However, in common understanding,
people who are easily susceptible to physical or emotional injury, or subject to unnecessary criticism, or
in a less valuable position in any society may be defined as vulnerable people. Further, due to adverse
socio-economical, cultural, and other practices present in each society, they find it difficult many a times
to exercise their human rights fully.
In India, there are multiple socio-economic disadvantages that members of particular groups experience
which limits their access to health and healthcare. Besides, there are multiple and complex factors of
vulnerability with different layers and more often than once it cannot be analysed in isolation. The present
document is based on some of the prominent factors on the basis of which individuals or members of
groups are discriminated in India, i.e., structural factors, age, disability and discrimination that act as
barriers to health and healthcare. The vulnerable groups that face discrimination include- Women,
Scheduled Castes (SC), Scheduled Tribes (ST), Children, Aged, Disabled, Poor migrants, People living
with HIV/AIDS and Sexual Minorities. Sometimes each group faces multiple barriers due to their
multiple identities. For example, in a patriarchal society, disabled women face double discrimination of
being a woman and being disabled.
Various Vulnerable Groups in India:
(i). WOMEN and GIRLS
In India, early marriage and childbearing affect women’s health adversely. About 28 percent of girls in
India get married below the legal age and experience pregnancy. These have serious repercussion on the
health of women. Maternal mortality is very high in India. The average maternal mortality ratio at the
national level is 540 deaths per 100,000 live births. It varies between states and regions, i.e., rural-urban.
The rural MMR is 617 deaths of women age between 15-49 years per one lakh live births as compared to
267 maternal deaths per one lakh live births among the urban population and the end result of that is the
death ratio is quite high. A large percentage of women is reported.
Major schemes for Women – · Indira Gandhi Matritva Sahyog Yojana (IGMSY) · Rajiv Gandhi Scheme
for Empowerment of Adolescent Girls (RGSEAG) · Swadhar Yojna · STEP (Support to Training and
Employment Programme for Women) (20th October 2005) · Stree Shakti Puraskaar Yojna · Short Stay
Home For Women and Girls (SSH) · UJJAWALA : A Comprehensive Scheme for Prevention of
trafficking and Rescue, Rehabilitation and Re-integration of Victims of Trafficking and Commercial
Sexual Exploitation · General Grant-in-Aid Scheme in the field of Women and Child Development.

(ii) STRUCTURAL DISCRIMINATION (Scheduled Castes, Scheduled Castes, Dalits, Scheduled Tribes)
The concept of Structural discrimination can be understood as the rules, norms, which are generally being
accepted approaches and behaviours in institutions and other social structures that amounts to certain
obstacles for subordinate groups to the equal rights and opportunities possessed by dominant groups.
Such discrimination may be visible or invisible, and it may be intentional or unintentional. The right to
health obliges governments to ensure that “health facilities, goods and services are accessible to all
especially the most vulnerable group or marginalized section of the population, in law and in fact, without
discrimination. In India, members of a gender, caste, class, and ethnic identity practice structural
discrimination as an impact on their health and access to healthcare. Among the Scheduled Castes and the
Scheduled Tribes, the most vulnerable are women, children, aged, those living with HIV/AIDS, mental
illness and disability. These groups face rigorous forms of discrimination that deny them access to cure
and prevents them from achieving a better health status. In India, Girl child and women from the
marginalized groups are more vulnerable to violence. The dropout and illiteracy rates among them are
high. Early marriage, trafficking, forced prostitution and other forms of exploitation are also reportedly
high among them.
There are various constitutional provisions which are dealing with the problem of discrimination on the
basis of Caste. They are as follows:
Art. 15(4): Clause 4 of article 15 is the fountainhead of all provisions regarding compensatory
discrimination for SCs/STs. This clause was added in the first amendment to the constitution in 1951 after
the SC judgement in the case of Champakam Dorairajan V. State of Madras[3]. It says this, “Nothing in
this article or in article 29(2) shall prevent the state from making any provisions for the advancement of
any socially and economically backward classes of citizens or for Scheduled Castes and Scheduled
Tribes.” This clause started the era of reservations in India.
Art. 15(5): This clause was added in 93rd amendment in 2005 and allows the state to make special
provisions for backward classes or SCs or STs for admissions in private educational institutions, aided or
unaided.
(iii). VULNERABILITY OF CHILDREN AND AGED
Child faces discrimination and disparity access to nutritious food and gender-based aggression is evident
from the falling sex ratio and the use of technologies to get rid of or abolish the girl child. Surrounded by
children the health indicators vary between the different social groups. High mortality and morbidity are
reported among children from Scheduled Castes, Scheduled Tribes and Other Backward Classes as
compared to the general population. Infant mortality is higher among the rural population (Rural-62,
Urban 42 per one thousand live births in the last five years, National Family Health Survey 3, Fact
Sheets). The injection coverage is very poor among children who live in rural India. Injection coverage
among children between 12-23 months who have received the suggested vaccines is only 39 percent in
rural India in contrast to 58 percent in urban India. In India, children’s vulnerabilities and practice to
violations of their protection rights remain spread and multiple in nature. The manifestations of these
violations are various, ranging from child labour, child trafficking, to commercial sexual exploitation and
many other forms of violence and abuse. With an estimated 12.6 million children engaged in hazardous
occupations. In India, however there is a huge gap in the industry-specific and exposure-specific
epidemiological evidence. Most of the studies are small-scale and community-based studies and the
population is growing promptly and is emerging as a serious area of concern for the government and the
policy planners. According to data on the age of India’s population, in Census 2001, there are a little over
76.6 million people above 60 years, constituting 7.2 per cent of the population. The number of people
over 60 years in 1991 was 6.8 per cent of the country’s population.

Constitutional provisions of this group:

Art. 19 A: Education up to 14 years has been made a fundamental right. Thus, the state is required to
provide school education to children so as to maintain the integrity of the principle under which these
laws are made and also to maintain the equal treatment of child under the constitution and in the eyes of
law as well as society.
Art. 45: Urges the state to provide early childhood care and education for children up to 6 yrs of age. Age
and high levels of economic reliance combine to create high levels of vulnerability to chronic poverty.
While old age pension schemes are in place neither the small amounts made available nor the aggravated
form of accessing them make this a resolution to the trouble of chronic poverty between the elderly. With
the high incidence of chronic ailments and health care needs of the elderly, declining family size,
migration and breakdown of traditional family structures that provided support, this group of the
population is extremely vulnerable to poverty.

What constitutes violation of right to health for vulnerable groups?

The specific examples of violations of right to health of vulnerable groups would be:
 Deliberate preservation or twisting of information on the health status of deprived groups that may
have been necessary for the prevention and treatment of illness or disability.
 Impressive discriminatory practices touching the group’s health status and needs. Adopting laws
and policies that interfere with the rights of the groups, for example, women’s reproductive rights.
 Failure of government to provide adequate public health measures against infectious diseases that
affect the disadvantaged groups.
 Failure to protect women against violence is often systematic and serious enough to require
women to seek hospital treatment for injuries and involve other health difficulty related to
violence. When governments fail to take pre-emptive steps to prevent and treat victims of violence
it is tantamount to violation of right.
Scope and Limitations of Indian State vis-a vis right to health
The Constitution of India and the other various laws do not accord health and healthcare as rights to the
population in general. While civil and political rights are enshrined as fundamental rights that are
permissible, social and economic rights like health, education, livelihoods etc. exist as Directive
Principles for the State and are hence not permissible. There are however so many instances in which
cases have been filed in the various High Courts of states and Supreme Court of India on the right to life,
Article 21 of the Indian Constitution or on the various directive principles to demand access to healthcare,
particularly in emergency situations. International safeguard of human rights is only effective when they
are made viable by national protection. The key factors in rights being operationalised for individuals and
groups within a nation are National-level legislation, policies and enforcement mechanism in which
National laws offer variable degrees of protection against human rights violation and enables national
bodies to hear cases of denial and enforce the norms. At present there is a problem of justifiability of the
Right to health in Indian Constitution since the same is not protected by national legislation. Though
India has ratified the Treaty on the Economic Social and Cultural Right which covers Right to Health
(Article 12), that cannot be efficiently used to advocate for right to health in India. The Courts or
petitioners can merely derive motivation from the treaties on the cases on contradiction on right to health
but may not be able to use it efficiently to deliver justice. The international treaties have only an
suggestive significance unless protected by national legislation. Absence of national legislation on right to
health in India is the main reason why it cannot be realized. Health and human rights support in India
needs to intensify the attempts towards transforming the critical principles of the Directive principles on
health and work into independent rights through rigorous judicial activism, i.e., filing Public Interest
Litigations, gathering testimonials for denial on right to health, etc. There needs to be a concerted move
towards making a national legislation on right to health.

Conclusion:
In the Constitution of India, the three pillars of human rights are:

 the right to equality including the prohibition of discrimination in any form

 the six vital freedoms of citizens (including the right to speech and expression)
 the right to life guaranteed to all persons.

These rights have been recognized to be inalienable, unalterable and part of the basic structure of the
Constitution which cannot be abrogated. India’s Supreme Court has interpreted the right to life as
including the right to live with dignity, right to health, education, human environment, speedy trial and
privacy, to name a few. Much of the focus of governmental activity has been to improve the provision of
services through grass-roots local self-governance institutions, particularly in rural areas. India has taken
an important initiative for the empowerment of women by reserving one-third of all seats for women in
urban and local self-government, bringing over one million women at the grassroots level into political
decision making. India has guaranteed human rights to all persons in India including the protection of
minorities. India has secured their right to practice and preserve their religious and cultural beliefs as a
part of the Chapter on Fundamental Rights. Legislative and executive measures have been taken for the
effective implementation of safeguards provided under the Constitution for the protection of the interests
of minorities. India has been deeply conscious of the need to empower the Scheduled Castes and
Scheduled Tribes and is fully committed to tackle any discrimination against them at every level. The
Constitution of India abolished “untouchability” and forbids its practice in any form.
There are also explicit and elaborate legal and administrative provisions to address caste-based
discrimination in the country. India stated that at independence, after the departure of the colonizers, all
the people, including its tribal people, were considered as indigenous to India. This position has been
clarified on various occasions, including while extending India’s support to the adoption of the United
Nations Declaration on the Rights of Indigenous Peoples at the Human Rights Council and the General
Assembly.

References:
 Legal Desire International Quarterly Journal (ISSN: 2347-3525), page no. 347.
 http://www.legalservicesindia.com/article/1079/Vulnerable-Groups-in-India---Status,-Schemes,-
Constitution-of-India.html
 http://www.legalserviceindia.com/article/l431-Human-Rights-Of-Vulnerable-Sections.html