A number of factors like inadequacies within the Constitution, and social-economic inequalities of caste, class, religion, gender etc, make a uniform application of human rights difficult. The State may also fail to provide the resources for the realisation of human rights and alternatively, it may, through its institutions become an aggressor and violator of rights. A number of scholars feel that the sections on Fundamental Rights and Directive Principles are inadequate in protecting human dignity.
1. Inadequacies of the Fundamental Rights and Directive Principles
Researchers emphasise that the rights are not reserved to the people and there is no preservation of the Fundamental Rights guaranteed to them. The Constitution itself provides the procedure for their amendment and over-riding by the State. Further, the Directive Principles are not addressed to the people. The people cannot, therefore, have the courts instruct the government to provide for humane conditions of life. While there is no explicit system of accountability for the State, the people are given some ‘fundamental duties’ which could be used by governments to abridge people’s rights. Finally, the fact that certain rights such as rights to work, shelter and medical amenities are not made ‘fundamental’ denies the poor the essential conditions for a truly human existence.
2. Preventive Detention and Violation of Fundamental Rights
Coupled with this are the extraordinary powers of policing which the State acquires under the provision for preventive detention, ironically in Part III of the Constitution (Article 22). Preventive detention is intended as a ‘protective’ measure whereby the government can arrest a person to prevent the commission of a crime. Experiences with preventive detention laws like MISA, NSA, and TADA, have shown that frequently these laws are used to bypass normal legal procedures and detain innocent persons, often political rivals, without trial, for long periods.
3. Violation of the Rights of the Poor and the Disadvantaged
The rights of the poor and the disadvantaged, including women, children, disadvantaged, tribals and minorities are frequently violated. Despite the existence of Commissions to look after the interests of specific groups, viz., the Minorities Commission, the National Commission for Women, etc, enacting laws like the Prevention of Atrocities Act, 1989 to stop offences against dalits and tribals, and Prevention d Immoral Traffic Act, the Sati Prevention Act, Dowry Prohibition Act etc, crimes against dalits and women have not ceased. Similarly, despite the Bonded Labour (Regulation and Abolition) Act, 1979 banning bonded labour, and various labour laws (Regulation of Industrial Disputes Act and the Trade Union Act), and provisions against child labour, the exploitation of these sections has not abated.
4. Human Rights and People’s Struggles
This, however, does not mean that human rights belong to static category. The history of human rights as a system of equality against hierarchical and ascriptive inequalities has shown that rights are substantiated by people’s struggles. Workers movements worldwide have contributed towards the regulation of work hours, amelioration of work conditions and welfare measures for industrial workers. Popular movements and struggles to redefine and enlarge the frontiers of human rights have also occurred in India. The women’s movement, the dalit movement, the environmental movement, the peasant movement etc have had important bearings on the definition of the nature and substance of rights. The struggles by the people of Narmada valley against the building of Sardar Sarovar Dam, for example, highlights the right of the people of the valley to protest against their displacement and their refusal to give up their identity, history, culture and means of livelihood.
5. Role played by an Activist Judiciary
Over the years a number of governmental institutions have also contributed towards the broadening of the scope of citizens’ rights. In recent years, the Supreme Court has positively responded to the Social Action Litigations (SALs) and Public Interest Litigations (PILs) brought by Non-Governmental Organisations (NGOs) or concerned individuals, adding new facets to human rights. From the late 1970s, for instance, the Supreme Court reversed the existing legal attitude towards prisoners to give them ‘all rights enjoyed by free citizens except those which explicitly taken away by the terms of their sentence’ (Charles Sobraj vs. Superintendent, Central Jail, Tihar, AIR, 1978, SC, 1514). It has similarly passed orders prohibiting child labour, sexual harassment of women and protection of environment.
6. Role of the National Commission for Women
The National Commission for Women, set up in 1992, under a Parliamentary Act (The National Commission for Women Act, 1990) has concerned itself with women’s rights under the Constitution and issues of women’s poor-economic conditions, health and violence against them. Over the years, the Commission has taken up cases of violence, torture and harassment of women including molestation, physical abuse, dowry related violence, custodial abuse and death, torture and harassment within family, in the workplace, and issues of women’s legal and political rights for investigation and redemption.
7. National Human Rights Commission (NHRC)
The National Human Rights Commission is another institution established by an Act of Parliament (The National Human Rights Act, 1993) to inquire into violations of people’s rights. Institutions like the National commission for Women and National Human Rights Commission, when effectively used or pressurised by the people, could effectively contribute towards supplementing human rights.