Every individual has the right to live freely, the right to be treated as equal to one’s peers; the right to be treated like a human being. Human rights are basic rights secured to each and every individual under international human rights law. The UN uses this law, to remind governments of certain acts or omissions which are either prohibited or which these governments are obligated to perform to ensure a standard of human rights which each individual can enjoy . The application of international human rights law should be universal. However, women can be counted under several other groups which face discrimination on a regular basis. This impinges their right to be treated equally and with dignity and more often, their right to life. As women play the role of the shaper of familial structures in many cultures, the lives of children also fall within this ambit of discrimination, portraying inequality in the dimension of a mother & child relationship, in conjunction with unfairness with regards to women and/or children. This article touches upon the necessity of the guaranteed application of human rights to women and children in India.
Table of Contents
The Need for Human Rights With Regards to Women & Children
A democracy, amongst other things, promises its citizens a life which envelops equality, freedom, a right to education, a right to be treated with respect and dignity. The application of the international human rights law is said to be “universal”. However, in all practicality, this is far from the truth. Statistics show that not only do crimes committed against women and children outweigh the number of crimes against men, but also the fact that in India, the number of such crimes is rising steadily . If these laws were being applied to everyone, then social movements such as the “#metoo” movement and news stories regarding sexual and other gender based offences would not surface on media. These stories and movements call for mass participation and mass relatability. According to the WHO, every 1 in 3 women have faced sexual harassment , which would give cause to women, as a community to make use of their human rights to live freely, without harassment. Several children are denied a good education and are subjected to violence and poverty at home and in the social realm, which is required to be rectified as the goal of every family is to foster the well-being and growth of children . Thus, institutions such as the UNICEF, and other legal aid from the government, endeavours to provide a better environment for children from such underprivileged backgrounds. Since, women and children are often not treated equally (to the rest of the society), ensuring that they enjoy their human rights becomes even more essential and hence, protection of their interests is necessary.
Sexual Offences & Violence
In India, sexual offences and violence are prevalent and the numbers in such crimes have only been increasing.  From the Nirbhaya Rape Case to the very recent Hathras Case, the cruelty, and gruesomeness within the precedent of offences has been escalating, making it difficult for one to elude from the fear of meeting a similar fate. The goal is to make a safer and easier way to stop such incidents from taking place and if such incidents do take place, then getting justice should not be a tiring and draining process. In India, it takes a while, just to file an FIR and that too, if the offence is a severe one. In many places, reports of eve-teasing and sometimes of molestation, are not even filed, due to either stigma, lack of confidence on the part of the victim, due to fear of consequence or even due to unreasonable non-compliance from the authorities. Thus, the situation demands a more vigilant system when it comes to reporting such cases, making it easier and safer for a victim to report a crime, to rid the community of stigma through social awareness, launching programmes to propagate the same – such as holding classes on bias eradication, self-defence and application-based modules, which should not only be held at an elementary or school level but even at rural or professional levels. However, these recommendatory precautions can only be put into place once the collective mindset of every individual, be it a woman, a man, a child or a person in authority, changes.
Harassment at the Workplace
Given the prevalence of sexual advances made towards women, certain acts have been put in place for creating a safer and more conducive work environment for women. The Prevention of Sexual Harassment at Workplace Act of 2013 (also known as the POSH Act) has comprehensive measures of prevention, as well as rules of procedure regarding actions to be taken in case of a complaint of sexual harassment is reported; the guidelines state the nature of acts which can be considered as harassment, the proceedings in case of such behaviour and the relevant authorities and evidence which can be used in these proceedings . The act has proven to be effective within municipal and corporate offices and helps battle corruption within the institution as well, since if the proceedings for an act of sexual harassment are not completed fairly, then the victim has the option (as a last resort) of filing a formal complaint with the police.
Cases of domestic violence are more complex than those of workplace harassment. Since these cases encompass the fate of families, and evidence for proof becomes meagre, the situation becomes riddled with constraints such as emotional and mental blackmail and again, the fear of consequences. Thus several victims tend not to report instances of domestic violence. However, the Protection of Women from Domestic Violence Act of 2005 provides for a cause of action in such instances: Sections 5 and 9 of the Act state that any person can inform the police of an instance of domestic violence, in good faith, upon which actions can be taken and that subsequent protection is required to be given to the victim/s in the form of either monetary compensation, custodial orders and/or legal aid (as facilitated by the Legal Services Authority Act of 1987 ). Marital rape has not yet been criminalised as the right to privacy is also a fundamental right. Yet, a complaint can be registered under the same act, as marital rape tantamounts to physical harassment. Legal remedies, however, are not enough to ensure a safe and liberal life. Stigma still clouds judgements in several areas and prevents people from reporting instances. The lack of support from other people, the fear of being judged, the fear of being unable to fulfil financial requirements independently scares a lot of victims from taking action and thus the legal provisions are of little help. This can be changed with the help of the remedies mentioned in prior sections, to facilitate a change in people’s mindsets.
Human trafficking is the most freightening offence of the lot which impinges upon women and children’s rights to equality, freedom, education, privacy, and most vitally, their right to live with dignity. There are several reasons for human trafficking, especially of teenage girls. Buying or kidnapping and transporting girls to various households propels the illegal sex industry and is often even known as “business” in pertinent areas. Research by the UN shows that approximately 40,000 girls out of the 200,000 women, who were smuggled across the border, were under the age of 16 . These women/children are kidnapped or bought from households for money and are transported along routes known for such trafficking. Then they are sold off, sometimes even gifted, and are made to work as housemaids, or are sexually abused and harassed. Even if freed, the trauma of such encounters prohibits the victim from functioning normally, with regards to a stable mental and emotional state, and strips them off of their right to live with dignity. Several acts have been put in place to counter human trafficking. The relevant legal provisions fall within The Immoral Traffic (Prevention) Act of 1956, Protection of Children From Sexual Offenses Act, 2012, the Indian Penal Code of 1872 and most importantly, Article 23(1) of the Indian Constitution which prohibits forced labour and trafficking.
In India, there are several protective guidelines under various Acts to help secure a better and safer work environment for women. Such Acts ensure that within jobs which encompass manual labour, women are paid at least a minimum wage, are not allowed to work in certain areas (such as dangerous underground mines), do not work at night, and are not involved in extremely dangerous work tasks and in addition to this, women are also provided certain provisions such as pre and/or post maternity leaves for specified periods, childcare services such as creches and day schools as well as mandatory washrooms demarcated specifically for women. However, in several areas poverty and habitual exploitation by unsupervised employers pushes women to work more than what the legal guidelines provide for and often get underpaid for their labour. To avoid such exploitation, and to make a safer place for women to work, apart from the legal provisions, stricter supervision on the way that day-to-day activities are conducted, regular inspections of such worksites as well as awareness lectures/seminars can be held.
Child labour, although prohibited, is prevelent in almost every part of India. From selling accessories at traffic signals, to working at kirana shops and tea stalls, children can be seen working. Not only are children involved in regular tasks, but are also forced to perform dangerous and hazardous tasks in factories and are made to perform tiring hours of manual labour, seldom paid proper wages. It is easy to pull children into various lines of work especially in rural areas as the mentality which families portray is that the more the people that work, the more the money that the family earns. However, working long working hours physically strains children, impinges on their right to life and freedom as well as their right to education as performing such tasks require most children to drop out of school at an early age. “According to the Census 2001 figures there are 1.26 crore working children in the age group of 5-14 as compared to the total child population of 25.2 crore. There are approximately 12 lakhs children working in the hazardous occupations/ processes which are covered under the Child Labour (Prohibition & Regulation) Act i.e. 18 occupations and 65 processes.”  Since then, various Acts have been passed regarding the prohibition of child labour. In fact, the government in several areas proposes schemes such as mid-day meals at schools as an incentive for children to attend school. In addition to that, schooling till a certain age has been made mandatory in different states. Several acts prohibit child labour below the age of 14 and the Juvinile Justice (Care and Protection of Children) Act of 2000, has made child labour a crime, has made employing children for work, a punishable offence, as a step to work towards the act’s aim which is to provide for a better environment for children and to provide any necessary care.
Despite the many advancements of human development in India, many women and children are greatly affected by the consequences of living in poverty.
For children, the lack of financial support often means that they are malnutritioned, not provided with sufficient education due to lack of transport and/or awareness and no access to required vaccines and health care facilities . These insufficiencies may lead to an unstable future. The malnutrition can lead to stunted growth and development of the body that is required to combat the diseases that may befall them in their poorly managed living situations. Inadequate education also stands in the way of their right to education. Their right to life is greatly impeded by these inequalities.
Poverty also affects women adversely. Not enough attention has previously been given to girls and their education. Sanitary products have proven time and time again to be a more than important necessity. Despite attempts to raise awareness of these products, many individuals either lack awareness or are socially prevented from using them. Lack of job opportunities and discouragement of women from performing manual labour, often forces them into the unorganised sector mainly consisting of jobs in the primary sector . The informal sector does not provide maternity leave or health benefits, which then, forces her to choose between her family and her job.
The aforementioned sections have brought to light some of the crimes which are committed against women and children and the injustice that they are subjected to, for some, on a regular or day-to-day basis. Sometimes, legal provisions are passed, presuming that the law will dictate the best outcome for the future of the intended audience. The formulation of new laws is as important as ensuring their fair application and when the statute is not applied to situations wherein it is required, its purpose becomes useless. Thus, the strict application of the law, along with remedial measures mentioned in the above sections, can help curb some of the problems that women and children face in India and can help in ensuring the rights that the constitution provides to each and every citizen of India and the rights that women and children are entitled to.
 Human Rights, United Nations, available at: https://www.un.org/en/sections/issues-depth/human-rights/ (last visited on January 12, 2021).
 Lok Sabha Debates on July 19, 2019 available at: https://pib.gov.in/Pressreleaseshare.aspx?PRID=1579546 (last visited on January 12, 2021).
 Violence Against Women, World Health Organisation, available at: https://www.who.int/news-room/fact-sheets/detail/violence-against-women (last visited on January 12, 2021).
 UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights for 2015, UN GAOR, UN Doc A/HRC/31/37 (January 29, 2016).
 Lok Sabha Debates on July 19, 2019 available at: https://pib.gov.in/Pressreleaseshare.aspx?PRID=1579546 (last visited on January 12, 2021).
 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
 The Protection of Women from Domestic Violence Act, 2005, ss. 5, 9.
 The Legal Services Authority Act, 1987.
 Panudda Boonpala and June Kane, Child Trafficking and Action to Eliminate it 19 (International Labour Office, France, 2002).
 The Constitution of India, art. 23(1).
 About Women Labour, Ministry of Labour & Employment, Available at: https://labour.gov.in/womenlabour/about-women-labour#skipCont (last visited on January 14, 2021).
 Guleria, Karan: ‘Changes in Child Labour and Related Laws’ Legal Services India, 2019, available at: http://www.legalservicesindia.com/article/1848/Changes-in-Child-Labour-and-Related-Laws.html (last visited on January 14, 2021).
 Children in India, Unicef, available at: https://www.unicef.org/india/children-in-india (last visited on January 14, 2021).
 Santosh Nandal, “Extent and Causes of Gender and Poverty in India: A Case Study of Rural Haryana” 7 Journal of International Women’s Studies 182-190 (2005), available at: http://vc.bridgew.edu/jiws (last visited on January 14, 2021).
BY MRINALINI MUKHERJEE | O.P. JINDAL GLOBAL UNIVERSITY