HUMAN RIGHTS

Major legislative initiatives in India during the period of 2008-

2019 for the protection and promotion of different segments of
society

SNEHA JOSHI
1164
VIII- B
INTRODUCTION

Human rights are "commonly understood as inalienable fundamental rights to which a person
is inherently entitled simply because she or he is a human being." Human rights are thus
conceived as universal and egalitarian which are applicable to everyone and everywhere.
These rights may exist as natural rights or as legal rights, in local, regional, national, and
international law. The doctrine of human rights in international practice, within international
law, global and regional institutions, in the policies of states and in the activities of non-
governmental organizations, has been a cornerstone of public policy around the world.
According to Section 2(1) (d) of Protection of Human Rights Act 1993, means the rights
relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or
embodied in the International Covenants and enforceable by Courts of India.

The Indian Constitution establishes a welfare state. This is clear from the salient features in
the Preamble and the Directive Principles of State Policy (DPSP). India is making a
determined attempt to fulfil its ideal of a welfare state not only in principle but also through
economic planning, thus securing to the Indian citizens justice—social, economic and
political.

In this spirit, striving towards the similar objectives there are multiple legislative initiations
for protection and promotion of different segments of society. Some of the major initiations
between the period 2008- 2019 are-

The Right to Education Act, 2009

When the ‘Free and compulsory education’ was made a ‘fundamental right’ under article 21A
of the constitution in December 2002 through the 86th Amendment it was a very important
step, salient feature of the act are-

 Every child in the age group of 6-14 has the right to free and compulsory education in
a neighbourhood school, till the completion of elementary education.

 The act prohibits donation, capitation fee, screening test/interview of child or parents,
physical punishment or mental harassment, private tuition by teachers, and running
schools without recognition.

 The Section 12(1) (c) of the RTE Act mandates unaided and non-minority schools to
keep aside 25% seats for underprivileged children of society through a random
 selection process. Government will fund education of these children. No seats in this
quota can be left vacant.

 No child can be held back, expelled and required to pass the board examination till the
completion of elementary education. [This is now set to change through The Right of
Children to Free and Compulsory Education (Second Amendment) Bill, 2017.] The
first time enrolled child is to be admitted to an age appropriate class.
 The Act specifies the duties and responsibilities of appropriate Governments, local
authority in providing free and compulsory education, and sharing of financial and
other responsibilities between the Central and State Governments.1

The Protection of Children from Sexual Offences (POCSO) Act 2012

The very inadequacy of Indian Penal Code and absence of any stringent legislation for
effectively addressing and tackling heinous crimes such as sexual exploitation and sexual
abuse of children birthed the commencement of POCSO ACT as the very intention of
Government establishments was to protect the children from offences of sexual assault,
sexual harassment and pornography and to facilitate adequate legal machinery by establishing
special courts for trial of such offences and matters incidental connected with child sexual
abuse crimes. This was in due compliance of Article 15 of Constitution of India which
mandates the states to protect the children of this nation and in lieu of United Nations
Conventions on the Rights of the Child which prescribes the set of standards to be followed
by state parties in securing the best interest of the child.
Salient features of the act-

 POCSO ACT defines a child as a person under the age of 18 year. It encompasses the
biological age of the child and remains silent on the mental age considerations.
 It recognizes all forms of penetration other than penile-vaginal penetration and
criminalizes acts of immodesty against children too.
 With respect to pornography, this act criminalizes even watching or collecting
pornographic content involving children under Sec 15 of the Act and shall be
punished with imprisonment of either description which may extend to three years or
with fine or both.

1
Salient features of Right to education Act, 2013, Issues and challenges in India, available at
https://socialissuesindia.wordpress.com/2010/07/15/salient-features-of-the-right-to-education-act-2009/ last seen
on 09/04/2019
  This Act makes abetment of child sexual abuse an offense under Sec 17 of the act and
is punishable under Section 18 of the act with imprisonment of any description
provided for the offence, for a term which may extend to one half of the imprisonment
for life or, as the case may be, one-half of the longest term of imprisonment provided
for that offence or with fine or with both.
 It also provides for various procedural reforms under Sec 19-22 of the Chapter V
under the Act making the tiring process of trial in India considerably easier for
children. The procedural formalities of reporting the case to Special Juvenile Police
has made it easier to report child sexual abuse cases in a prompt and hassle free
manner.
 Under Sec 20 of the act under chapter V makes it obligatory for media personnel’s
and personnel employed by hotel or lodge or hospital or club or studio or
photographic facilities, by whatever name called, irrespective of the number of
persons employed therein, shall, on coming across any material or object which is
sexually exploitative of the child including pornographic, sexually-related or making
obscene representation of a child or children) through the use of any medium, shall
provide such information to the Special Juvenile Police Unit, or to the local police so
that such sex abuse offenders’ can be tracked down by police immediately.
 However, This Act also has been criticized as its provisions seem to criminalize
consensual sexual intercourse between two people below the age of 18 and take the
personal liberty of adolescents to indulge in consensual sex and youngsters who
indulge in sexual activities will be prone to further harassment from family members,
police and society. This new legislation has reignited the debate over the validity of
rationale behind age consent laws and the harmfulness of adolescent.2

Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013

This act came into force on 6 December 2013 across India except Jammu and Kashmir. The
law prohibits the employment of manual scavengers, the manual cleaning of sewers and
septic tanks without protective equipment and the construction of insanitary latrines.
The law also provides rehabilitation of manual scavengers and alternative employment to
them within the time bound manner. From now onwards, the construction and maintenance of

2
A short guide to The POCSO Act, iPleaders Intelligent Legal Solution, available at
https://blog.ipleaders.in/short-guide-pocso-act/ last seen on 10/04/2019
the insanity latrines has became an offence, therefore no one can be employed or engaged as
the manual scavenger.
Salient features of the act-
 Prohibition of Insanitary and Employment or engagement as Manual Scavengers.The
offences are -
•To construct or maintain an insanitary latrine
• Engage or employ a person to work as the Manual Scavenger
 Penalty for contravention
• First contravention is punishable with imprisonment up to one year or with the fine
up to rupees fifty thousand or both
• Any subsequent contravention is punishable with imprisonment up to two years or
with the fine up to rupees five lakh or both
 Prohibition of person from engagement or employment for hazardous cleaning of a
sewer or a septic tank. Penalty for contravention
• First contravention is punishable with imprisonment up to two years or with a fine
up to two lakh rupees or with both
• Any subsequent contravention is punishable with imprisonment up to five years or
with fine up to five lakh rupees or with both
 Offences under the Act are cognizable and non-bail able
 Comprehensive Rehabilitation of the Manual Scavengers within a time bound
framework
• Photo Identity card to the Manual Scavengers
• Initial cash assistance
• Scholarship to the children of Manual Scavengers
• Allotment of residential plot with financial assistance for the construction of the
house or a ready built house, within the framework of relevant scheme
• Training in livelihood skill
• Concessional loan with subsidy for taking up alternative occupation
• Any other legal or programmatic assistance.3

3
Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, JagaranJJosh, available
at https://www.jagranjosh.com/current-affairs/prohibition-of-employment-as-manual-scavengers-and-their-
rehabilitation-act-2013-1386315120-1, last seen on 10/04/2019
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013

Before, the verdict of Supreme Court in Vishaka v. State of Rajasthan4, women were
experiencing sexual harassment at workplace and they had to lodge a complaint under
Section 354 of the Indian Penal Code that deals with the criminal assault of women to outrage
women’s modesty, and Section 509 that punishes an individual or individuals for using a
word, gesture or act intended to insult the modesty of a woman.
The entire scenario changed in 1997 with the introduction of Vishaka case’s guidelines. The
Supreme Court for the first time recognized, acknowledged and explicitly defined sexual
harassment as an – unwelcome sexual gesture or behaviour aimed or having a tendency to
outrage the modesty of woman directly or indirectly. On 23rd April 2013, the legislature
finally brought into force a comprehensive legislation dealing with the protection of women
against sexual harassment at workplace by enacting this act
Salient features of act-
 Meaning and definition of sexual harassment is explained very comprehensively
under the act
 The ambit of the Sexual Harassment Act is very wide and is applicable to the
organized sector as well as the unorganized sector.
 In view of the wide definition of 'workplace', the statute, inter alia, applies to
government bodies, private and public sector organizations, non-governmental
organizations, organizations carrying on commercial, vocational, educational,
entertain mental, industrial, financial activities, hospitals and nursing homes,
educational institutes, sports institutions and stadiums used for training individuals.
 As per the Sexual Harassment Act, a workplace also covers within its scope places
visited by employees during the course of employment or for reasons arising out of
employment.
 “Aggrieved women” recognizes the right of every woman to a safe and secure
workplace environment irrespective of her age or employment/work status. Hence, the
right of all women working or visiting any workplace whether in the capacity of
regular, temporary, adhoc, or daily wages basis is protected under the Act.

4
AIR 1997 SC 3011
  The Act also covers a woman, who is working in a dwelling place or house.5

Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014

The Act was passed on the basis of the legislative recognition that street vendors constitute
“an integral part of our urban economy”. The government recognised street vending as not
only a source of self-employment for the poor in cities and towns, but also as a means to
provide “affordable” as well as “convenient” services to a majority of the urban population.

Street vendors are often those who are unable to get regular jobs in the remunerative formal
sector on account of their low level of education and skills. They try to solve their livelihood
issues through their meagre financial resources and sweat equity in a harassment-free
atmosphere, the government said.

Salient features of the act-

 The law aims to protect the livelihood rights of street vendors as well as regulate
street vending through demarcation of vending zones, conditions for and restrictions
on street vending.
 Any person intending to undertake street vending needs to register with the Town
Vending Committee (TVC). He may then apply for a vending certificate that will be
issued based on various criteria.
 The state government shall frame a scheme for street vendors. The local authority
shall, in consultation with the planning authority, frame a street vending plan once
every five years.
 The TVC comprises of the municipal commissioner, representatives of street vendors,
local authority, planning authority, local police, resident welfare association and other
traders associations.
 This law shall not apply to Railways land, premises and trains.6

5
An Overview on Sexual Harassment of Women at Workplace Act, 2013, LAWYERSCLUBINDIA, available at
http://www.lawyersclubindia.com/articles/Sexual-Harassment-of-Women-at-Workplace-6111.asp, last seen on
09/04/2019
6
The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2012, PRS Legislative
Research, available at https://www.prsindia.org/billtrack/the-street-vendors-protection-of-livelihood-and-
regulation-of-street-vending-act-2012-2464, last seen on 10/04/2019
Juvenile Justice (Care and Protection of Children) Act, 2015

The National Crime Records Bureau (NCRB) data shows that there has been an increase of
offences committed by juveniles, especially in the age group of 16-18. One of the
perpetrators in the Delhi gang rape of 2012 was few months short of 18 years age and he was
tried as juvenile. He was sent to reformation home for three years and was released in
December 2015. This had raised the public demand for lowering the age of juveniles under
the act. The 2000 act was also facing implementation issues particularly in cases of adoption.

Key features of the amendment are-

 This act deals with both categories of children i.e. children in conflict with law and
children in need of care and protection.
 The act has introduced foster care in India under section 44. As per this, the families
would sign up and the abandoned, orphaned children or those in conflict with the law
would be sent to them.
 It treats all the children below 18 years equally, except that those in the age group of
16-18 can be tried as adults if they commit a heinous crime.
 A Children’s court is a special court set up under the Commissions for Protection of
Child Rights Act, 2005, or a special court under the Protection of Children from
Sexual Offences Act, 2012. In absence of such courts, a juvenile can be tried in a
sessions court that has jurisdiction to try offences under the Act.
 Child Welfare Committees (CWCs) should be set up in each district with a
chairperson and four other members who have experience in dealing with children.
One of the four members must be a woman. The committee decides whether an
abandoned child should be sent to care home or put up for adoption or foster care.
 Buying and selling of a child attracts imprisonment up to five years. Giving an
intoxicating or narcotic substance to a child attracts imprisonment up to seven years.7

7
Juvenile Justice (Care and Protection of Children) Act, 2015, GKTODAY, available at
https://www.gktoday.in/gk/juvenile-justice-care-and-protection-of-children-act-2015/, last seen on 14/04/2019
Rights of Persons with Disabilities Act, 2016

The Act replaces the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995. It fulfils the obligations to the United National Convention on
the Rights of Persons with Disabilities (UNCRPD), to which India is a signatory.

Salient features of the act-

 The list of disabilities has been expanded from 7 to 21 conditions and it now also
includes cerebral palsy, dwarfism, muscular dystrophy, acid attack victims, hard of
hearing, speech and language disability, specific learning disabilities, autism spectrum
disorders, chronic neurological disorders such as multiple sclerosis and Parkinson's
disease, blood disorders such as haemophilia, thalassemia, and sickle cell anaemia,
and multiple disabilities.
 “The appropriate Government shall ensure that the PWD enjoy the right to equality,
life with dignity, and respect for his or her own integrity equally with others.” The
Government is to take steps to utilize the capacity of the PWD by providing
appropriate environment.
 Equal protection and safety in situations of risk, armed conflict, humanitarian
emergencies, and natural disasters are to be provided to PWD. Children with
disability are not to be separated from parents except on the order of a competent
court and information about reproductive rights and family planning to the PWD is to
be ensured.
 The Bill provides for the access to inclusive education, vocational training, and self-
employment of disabled persons without discrimination and buildings, campuses, and
various facilities are to be made accessible to the PWD and their special needs are to
be addressed.
 All Government institutions of higher education and those getting aid from the
Government are required to reserve at least 5% of seats for persons with benchmark
disabilities.8

8
The Rights of Persons with Disabilities Act, 2016, NCBI, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419007/, last seen on 10/04/2019
The Transgender Persons (Protection of Rights) Bill, 2016

Key features of the bill-

 The Bill defines a transgender person as one who is partly female or male; or a
combination of female and male; or neither female nor male. In addition, the person’s
gender must not match the gender assigned at birth, and includes trans-men, trans
women, persons with inter sex variations and gender-queers.

 A transgender person must obtain a certificate of identity as proof of recognition of

identity as a transgender person and to invoke rights under the Bill.

 Such a certificate would be granted by the District Magistrate on the recommendation

of a Screening Committee. The Committee would comprise a medical officer, a
psychologist or psychiatrist, a district welfare officer, a government official, and a
transgender person.

 The Bill prohibits discrimination against a transgender person in areas such as

education, employment, and healthcare. It directs the central and state governments to
provide welfare schemes in these areas.

 Offences like compelling a transgender person to beg, denial of access to a public

place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and
a fine.9

Mental Healthcare Act 2017

The new act defines “mental illness” as a substantial disorder of thinking, mood, perception,
orientation, or memory that grossly impairs judgment or ability to meet the ordinary demands
of life, mental conditions associated with the abuse of alcohol and drugs. This act rescinds
the existing Mental Healthcare Act 1987 which had been widely criticized for not
recognizing the rights of a mentally ill person and paving the way for isolating such
dangerous patients. This act has overturned 309 Indian Penal Code which criminalizes
attempted suicide by mentally ill person. Another highlight of this Act is to protect the rights

9
The Transgender Persons (Protection of Rights) Bill, 2016, PRS Legislative Research, available at
https://www.prsindia.org/billtrack/transgender-persons-protection-rights-bill-2016, last seen on 10/04/2019
of a person with mental illness, and thereby facilitating his/her access to treatment and by an
advance directive; how he/she wants to be treated for his/her illness.

Salient features of the act-

 Rights of persons with mental illness: Every person has the right to access mental
health care by both public and private services. Right to access of mental health care
includes availability, affordability and accessibility.
 Advance Directive: A mentally ill person shall have the right to choose the way of
treatment and can nominate a person who can take decision on their behalf.
 Central and State Mental Health Authority: Authority has the responsibility to
 To maintain register of all mental health establishments
 To develop quality service
 To train law enforcement officials
 To receive complains
 To advise the govt. on the matters relating to mental health.
 Mental Health Review Commission and Board: It will be quasi-judicial body that will
review the use and the procedure for making advance directives and the advice the
government on protection of the rights of mentally ill persons.
 Decriminalizing suicide and prohibiting electro-convulsive therapy: A person
attempting suicide is given mental treatment at that particular time and it is not
considered as a crime under Indian Penal Code. Electro-convulsive therapy is allowed
with the use of muscle relaxants and anaesthesia which is prohibited for minors.
 Insurance: Bill will facilitate insurance facility for both medical insurance as well as
physical illness.10

Maternity Benefit (Amendment) Act, 2017

The Bill amends the Maternity Benefit Act, 1961. The Act regulates the employment of
women during the period of child birth, and provides maternity benefits. The Act applies to
factory, mines, plantations, shops and other establishments. The Bill amends provisions
related to the duration and applicability of maternity leave, and other facilities.

10
Mental Health Care Act,2017;its provisions and drawbacks, iasinsights, available at
https://iasinsights.com/2017/12/21/mental-health-care-act2017its-provisions-and-drawbacks/, last seen on
10/04/2019
The key features of the amendment are-

 The Maternity Benefit (Amendment) Act 2017 has increased the duration of paid
maternity leave available for women employees to 26 weeks from 12 weeks. However
for those women who are expecting after having 2 children, the duration of the leave
remains unaltered at 12 weeks.
 The paid maternity leave can be availed 8 weeks before the expected date of delivery.
Before the amendment, it was 6 weeks.
 The Maternity Benefit (Amendment) Act 2017 has extended the benefits applicable to
the adoptive and commissioning mothers and provides that woman who adopts a child
will be given 12 weeks of maternity leave from the date of adoption.
 The Act has introduced an enabling provision relating to “work from home” that can
be exercised after the expiry of 26 weeks’ leave period. Depending upon the nature of
work, a woman can avail of this provision on such terms that are mutually agreed with
the employer.
 The amended Act has mandated crèche facility for every establishment employing 50
or more employees. The women employees should be permitted to visit the facility 4
times during the day.
 The amended act makes it compulsory for the employers to educate women about the
maternity benefits available to them at the time of their appointment.
 The act is applicable to all those women employed in factories, mines and shops or
commercial establishments employing 10 or more employees.11

Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019

This has been promulgated to give continued effect to the provisions brought in by the
Muslim Women (Protection of Rights on Marriage) Ordinance, 2019. This Ordinance, inter
alia, declares the practice of triple talaq to be void and illegal and also to make it an offence
punishable with imprisonment up to three years and fine.

11
Maternity Benefit (Amendment) Act 2017,GKTODAY, available at https://www.gktoday.in/gk/maternity-
benefit-amendment-act-2017-significant-provisions-and-issues/, last seen on 14/04/2019
The Ordinance will protect the rights of married Muslim women and deter the practice of
divorce by triple talaq (i.e., talaq –e –biddat). It also provides for payment of subsistence
allowance and custody of minor children.

The key features of the ordinance are-

 The Ordinance makes all declaration of talaq, including in written or electronic form,
to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or
any other similar form of talaq pronounced by a Muslim man resulting in instant and
irrevocable divorce. Talaq-e-biddat refers to the practice under Muslim personal laws
where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his
wife results in an instant and irrevocable divorce.
 The Ordinance provides that the Magistrate may grant bail to the accused. The bail
may be granted only after hearing the woman (against whom talaq has been
pronounced), and if the Magistrate is satisfied that there are reasonable grounds for
granting bail.
 The offence may be compounded by the Magistrate upon the request of the woman
(against whom talaq has been declared). Compounding refers to the procedure where
the two sides agree to stop legal proceedings, and settle the dispute. The terms and
conditions of the compounding of the offence will be determined by the Magistrate.
 Allowance: A Muslim woman against whom talaq has been declared, is entitled to
seek subsistence allowance from her husband for herself and for her dependent
children. The amount of the allowance will be determined by the Magistrate.
 Custody: A Muslim woman against whom such talaq has been declared, is entitled to
seek custody of her minor children. The manner of custody will be determined by the
Magistrate.12

12
Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019, SCC Online, available at
https://www.scconline.com/blog/post/2019/02/25/muslim-women-protection-of-rights-on-marriage-second-
ordinance-2019/, last seen on 14/04/2019
CONCLUSION

The above mentioned acts shows that the Government from 2008 to 2019 has taken a number
of steps to uplift the weaker sections of society and to reduce inequalities in income, status
and opportunities for such disadvantaged sections of society, which include Scheduled Castes
and Scheduled Tribes, backward classes, minorities and handicapped covering about 85 per
cent of the country's population. Government has not only stepped up allocations on the
ongoing programmes but has also initiated new schemes and yojnas.

After all this also, according to the World report of 201913 there is serious criticism of the
events that took place for example- the AFSPA issue in Jammu and Kashmir, the use of
Draconian sedition and counterterrorism laws to chill free expression, speeches against
minority community, promotion of hindu supremacy and ultra nationalism is increasing
further violence. Numerous cases of rape across the country once again exposed the failures
of the criminal justice system, the #MeToo movement highlighted the failure of the due
process.

Some other judgements were also passed which had different opinions across the country,-

 The Supreme Court lifted the ban on entry of women of menstruating age—between
10 and 50—to a temple in southern India(Shabrimala temple), on grounds of non
discrimination, equality, and women’s right to practice religion. This prompted
protests from devotees, including women, who tried to stop girls and young women
from entering the temple. The same month, the top court struck down an archaic law
that criminalized adultery.
 The government launched a national registry of sexual offenders, which would store
the name, address, photo, fingerprints, and personal details of all arrested, charged,
and convicted of sexual offenses. The database, available only to law enforcement
agencies, raised concerns regarding data breaches and violations of privacy
protections, including for individuals never convicted of a sexual offense.
 In April, the government passed an ordinance introducing capital punishment for
those convicted of raping a girl less than 12 years of age. The new ordinance also
increased minimum punishment for rape of girls and women and it became law in
August.

13
India, Events of 2018, HUMAN RIGHTS WATCH, available at https://www.hrw.org/world-
report/2019/country-chapters/india, last seen on 14/04/2019
  In September, India’s Supreme Court struck down section 377 of India’s penal code,
decriminalizing consensual adult same-sex relations. The ruling followed decades of
struggle by activists, lawyers, and members of LGBT communities.etc.

Apart from this the National Human Rights Commission, India also provides annual reports
on the development of welfare of the country.