Legal Regime and Status of Marginalised
(Original document here: Legal Regime and Status of Marginalised Legal Bloc Journal Vol III Issue I Jan 17)
“Our greatness lies not so much in being able to remake the world…..as in being able to remake ourselves”.
- Mahatma Gandhi
Marginalized groups refer to those categories of people in a society who remain in a state of deprivation and subjugation for centuries as a result of which they are not able to attain a position of parity with the other sections of society in contemporary times. Denied of their equal share in the social, economic and political rights, privileges and resources of the country for obvious reasons over the years, such groups continue to remain in a vulnerable position even after country gains independence and marches ahead on the path of progress and development.
In India, for instance, such groups of people included the vulnerable sections of the society like dalits, adivasis, women, minorities, unorganized workers etc. The discourse of human rights for such groups of people differs from the discourse of human rights for other sections of society for at least two reasons. First, owing to their long drawn social, economic and political deprivation, these groups become some sort of marginalized lot in the society in comparison to the mainstream sections as a result of which the notion, standards and exercise of the general human rights do not remain valid and meaningful for such groups. Second, each of the marginalized groups carries certain distinct physiological, social, economic, cultural, religious and related traits which distinguish them from the rest of the people in society whose obvious result is that the norms of human rights for latter could not be applied uniformly to the former. Hence, a discussion on the issue of the human rights of the marginalized groups becomes an exercise in diagnosing the ills and evaluating the remedies in action for the time being with a view to evolve a holistic perspective on the human rights of these groups.
In my paper I elaborately discussed about the meaning of marginalization, various marginalized groups and their problems, issues and challenges, causes for such problem, with related Indian legislations, and the solutions.
OBJECTIVES OF THE STUDY
The following are the main objectives of the study-
- To know about the meaning of the marginalized group.
- To know about the legal issues and challenges of the marginalized group.
- To know about the various programs and legislations which were made by the government sector in order to upbringing of marginalized group.
According to black’s law dictionary “marginalization means the process of according less importance to something or someone moved away from the inner workings of the group. A social phenomenon of excluding a minority, subgroup, or undesirables by ignoring their needs, desires, and expectations”.
According to Webster’s Legal Dictionary “Marginalization means to put or keep (someone) in a powerless or unimportant position within a society or group”.
The Encyclopedia of Public Health defines marginalized groups as, ‘To be marginalized is to be placed in the margins, and thus excluded from the privilege and power found at the center”.
Latin observes that, “‘Marginality’ is so thoroughly demeaning, for economic well-being, for human dignity, as well as for physical security. Marginal groups can always be identified by members of dominant society, and will face irrevocable discrimination.”
These definitions are mentioned in different contexts, and show that marginalization is a slippery and multilayered concept. It is a complex as well as shifting phenomenon linked to social status.
VARIOUS MARGINALIZED GROUPS AND THEIR STATUS
Most vulnerable marginalized groups in almost every society can be summarized as below:
- People with disabilities
- Schedule casts(dalits)
- Scheduled Tribes
- Elderly aged persons
- Sexual Minorities
- Women –
Under different economic conditions, and under the influence of specific historical, cultural, legal and religious factors, marginalization is one of the manifestations of gender inequality. In other words, women may be excluded from certain jobs and occupations, incorporated into certain others, and marginalized in others. In general they are always marginalized relative to men, in every country and culture. Women (or, men) don’t present a homogeneous category where members have common interests, abilities, or practices. Women belonging to lower classes, lower castes, illiterate, and the poorest region have different levels of marginalization than their better off counterparts.
In this regard in order to upbringing the status of women, government actively participating by making various schemes such as-
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) 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.
- People with disabilities –
People with disabilities have had to battle against centuries of biased assumptions, harmful stereotypes, and irrational fears. The stigmatization of disability resulted in the social and economic marginalization of generations with disabilities, and, like many other oppressed minorities, this has left people with disabilities in a severe state of impoverishment for centuries. The proportion of disabled population in India is about 21.9 million. The percentage of disabled population to the total population is about 2.13 per cent. There are interstate and interregional differences in the disabled population. The disabled face various types of barriers while seeking access to health and health services. Among those who are disabled women, children and aged are more vulnerable and need attention.
- Schedule Castes(Dalits) –
The caste system is a strict hierarchical social system based on underlying notions of purity and pollution. Brahmins are on the top of the hierarchy and Shudras or Dalits constitute the bottom of the hierarchy. The marginalization of Dalits influences all spheres of their life, violating basic human rights such as civil, political, social, economic and cultural rights. A major proportion of the lower castes and Dalits are still dependent on others for their livelihood. Dalits does not refer to a caste, but suggests a group who are in a state of oppression, social disability and who are helpless and poor. Literacy rates among Dalits are very low. They have meager purchasing power and have poor housing conditions as well as have low access to resources and entitlements. Structural discrimination against these groups takes place in the form of physical, psychological, emotional and cultural abuse which receives legitimacy from the social structure and the social system. Physical segregation of their settlements is common in the villages forcing them to live in the most unhygienic and inhabitable conditions. All these factors affect their health status, access to healthcare and quality of life. There are high rates of malnutrition reported among the marginalized groups resulting in mortality, morbidity and anemia. Access to and utilization of healthcare among the marginalized groups is influenced by their socio-economic status within the society.
Caste based marginalization is one of the most serious human rights issues in the world today, adversely affecting more than 260 million people mostly reside in India. Caste-based discrimination entails social and economic exclusion, segregation in housing, denial and restrictions of access to public and private services and employment, and enforcement of certain types of jobs on Dalits, resulting in a system of modern day slavery or bonded labour. However, in recent years due to affirmative action and legal protection, the intensity of caste based marginalization is reducing.
4.Scheduled Tribes :–
The Scheduled Tribes like the Scheduled Castes face structural discrimination within the Indian society. Unlike the Scheduled Castes, the Scheduled Tribes are a product of marginalization based on ethnicity. In India, the Scheduled Tribes population is around 84.3 million and is considered to be socially and economically disadvantaged. Their percentages in the population and numbers however vary from State to State. They are mainly landless with little control over resources such as land, forest and water. They constitute a large proportion of agricultural laborers, casual laborers, plantation laborers, industrial laborers etc. This has resulted in poverty among them, low levels of education, poor health and reduced access to healthcare services. They belong to the poorest strata of the society and have severe health problems.
- Elderly or Aged People –
Ageing is an inevitable and inexorable process in life. In India, the population of the elderly is growing rapidly 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. The vulnerability among the elderly is not only due to an increased incidence of illness and disability, but also due to their economic dependency upon their spouses, children and other younger family members. According to the 2001 census, 33.1 per cent of the elderly in India live without their spouses. The widowers among older men form 14.9 per cent as against 50.1 per cent widows among elderly women. Among the elderly (80 years and above), 71.1 per cent of women were widows while widowers formed only 28.9 per cent of men. Lack of economic dependence has an impact on their access to food, clothing and healthcare. Among the basic needs of the elderly, medicine features as the highest unmet need. Healthcare of the elderly is a major concern for the society as ageing is often accompanied by multiple illnesses and physical ailments.
- Children –
Children Mortality and morbidity among children are caused and compounded by poverty, their sex and caste position in society. All these have consequences on their nutrition intake, access to healthcare, environment and education. Poverty has a direct impact on the mortality and morbidity among children. In India, a girl child faces discrimination and differential access to nutritious food and gender based violence is evident from the falling sex ratio and the use of technologies to eliminate the girl child. The manifestations of these violations are various, ranging from child labor, 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 (2001 Census), for instance, India has the largest number of child laborers under the age of 14 in the world. Among children, there are some groups like street children and children of sex workers who face additional forms of discrimination. A large number of children are reportedly trafficked to the neighboring countries. Trafficking of children also continues to be a serious problem in India. While systematic data and information on child protection issues are still not always available, evidence suggests that children in need of special protection belong to communities suffering disadvantage and social exclusion such as scheduled casts and tribes, and the poor (UNICEF, India).
In this regard in order to upbringing the status of children, government actively participating by making various schemes such as-
Major schemes for children-
- The Integrated Child Protection Scheme (ICPS)
- National Awards For Child Welfare
- National Child Awards For Exceptional Achievements
- Rajiv Gandhi Manav Seva Award For Service To Children
- Balika Samriddhi Yojana (BSY)
- Kishori Shakti Yojana (KSY)
- Nutrition Programme for Adolescent Girls (NPAG)
- Early Childhood Education for 3-6 Age Group Children Under the Programme of Universaliation of Elementary Education.
- Scheme for welfare of Working Children in need of Care and Protection
- Central Adoption Resource Agency (CARA)
- Rajiv Gandhi National Creche Scheme For the Children of Working Mothers
- 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.
- Sexual Minorities –
Another group that faces stigma and discrimination are the sexual minorities. Those identified as gay, lesbian, transgender, bisexual, kothi and hijra; experience various forms of discrimination within the society and the health system. Due to the dominance of heteronymous sexual relations as the only form of normal acceptable relations within the society, individuals who are identified as having same-sex sexual preferences are ridiculed and ostracized by their own family and are left with very limited support structures and networks of community that provide them conditions of care and support. Their needs and concerns are excluded from the various health policies and programs.
LAW RELATING TO PROTECTION OF RIGHTS OF THE MARGENALIZED:
For the promotion and protection of the human rights of the maginalised, an elaborate provision has been made in the constitution of India. At the very outset, Article 14 of the constitution declares that ‘the state shall not deny to any person equality before law or equal protection of laws within the territory of India’. Article 15 states that ‘the state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them’. Further, Article 16 states that ‘equality of opportunity in matters of public employment has been ensured’. In addition to the various provisions to ensure right to equality, the basic civil and political rights have been provide to the minorities under Article 19 to 22.
However, the framers of the Constitution were not satisfied with such provisions alone and under Article 25 to 28, provided for the most generous rights to religious minorities in order to infuse a sense of complete confidence in them. And also Ethnic and linguistic minorities are bestowed with distinct set of cultural and educational rights under Articles 29 and 30 of the constitution. Thus, we find that when provisions under Article 29 and 30 are considered along with other provisions in the chapter on fundamental rights and elsewhere in the constitution, safeguarding the rights of religious, linguistic and ethnic minorities, it becomes clear that the purpose of these provisions is to reassure the minorities that certain special interests of theirs which they cherish as fundamental to their life, are safe under the constitution.
Apart from this Indian constitution much legislation was also enacted in order to protect the rights of the marginalized are as follows:
- The Indian Penal Code,1860
- The Indian Evidence Act, 1872
- The Indian Christian Marriage Act, 1872 (15 of 1872)
- The Married Women’s Property Act, 1874 (3 of 1874)
- The Guardians and Wards Act,1890
- The Workmen’s Compensation Act, 1923
- The Trade Unions Act 1926
- The Child Marriage Restraint Act, 1929 (19 of 1929)
- The Payments of Wages Act, 1936
- The Payments of Wages (Procedure) Act, 1937
- The Muslim Personal Law (Shariat) Application Act, 1937
- Employers Liabilities Act 1938
- The Minimum Wages Act, 1948
- The Employees’ State Insurance Act,1948
- The Factories Act, 1948
- The Minimum Wages Act, 1950
- The Plantation Labour Act, 1951 (amended by Acts Nos. 42 of 1953, 34 of 1960, 53 of1961, 58 of 1981 and 61 of 1986)
- The Cinematograph Act, 1952
- The Mines Act 1952
- The Special Marriage Act, 1954
- The Protection of Civil Rights Act 1955
- The Hindu Marriage Act, 1955 (28 of 1989)
- The Hindu Adoptions & Maintenance Act, 1956
- The Hindu Minority & Guardianship Act, 1956
- The Hindu Succession Act, 1956
- The Maternity Benefit Act, 1961 (53 of 1961)
- The Beedi & Cigar Workers (Conditions of Employment) Act, 1966
- The Foreign Marriage Act, 1969 (33 of 1969)
- The Indian Divorce Act, 1969 (4 of 1969)
- The Contract Labour (Regulation & Abolition) Act, 1970
- The Medical Termination of Pregnancy Act, 1971 (34 of 1971)
- Code of Criminal Procedure, 1973
- The Equal Remuneration Act, 1976
- The Bonded Labour System (Abolition) Act, 1979
- The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
- The Family Courts Act, 1984
- The Muslim women (Protection of Rights on Divorce) Act, 1986
- Mental Health Act, 1987
- National Commission for Women Act, 1990 (20 of 1990)
- The Protection of Human Rights Act, 1993 [As amended by the Protection of Human Rights (Amendment) Act, 2006 – No. 43 of 2006]
- Juvenile Justice (Care and Protection of Children) Act, 2000
- The Child Labour (Prohibition & Regulation) Act
- The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
- The Prohibition of Child Marriage Act, 2006
- PEOPLE WITH DISABILITIES
1.The Person with Disabilities Act, 1995.
- The Mental Health Act, 1987.
3.The Rehabilitation Council of India, 1992.
- The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999.
5.Declaration On The Rights Of Mentally Retarded Persons.
- SCHEDULE CAST AND SCHEDULE TRIBES
1.The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989
- The Factories Act, 1948.
- The Probation of Offenders Act, 1959.
- The Child Labour Act, 1986.
- The Child Marriage Restraint Act, 1986.
- The Juvenile Justice Act, 2000.
- The Pre- Conception & Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2002 and many others.
- National Policy for Children (NCP), National Institute of public Co-operation & Child Development (NIPCCD), The Integrated Child Development Services are polices made by Government. Even NHRC & UNICEF are also organization, takes special efforts to protect children rights.
- SEXUAL MINORITIES
- Indian penal code 1860 (section 377)
- Constitution of india ( Article 21.Under this Article their rights also protected)
SUGGESIONS AND RECOMMANDATIONS
“The pertinent question therefore is where do the marginalized groups stand today? Though there has been some improvement in certain spheres and despite some positive changes, the standard of living for the marginalized communities has not improved. Therefore active participation is needed. With this regard the following are some of the suggestion we can implement.
- There is a need to focus on Improved Access to Agricultural Land–
The reasons for the high incidences of poverty and deprivation among the marginalized social groups are to be found in their continuing lack of access to income-earning capital assets (agricultural land and non-land assets), heavy dependence on wage employment, high unemployment, low education and other factors.
Therefore, there is a need to focus on policies to improve the ownership of income-earning capital assets (agriculture land, and non-land assets), employment, human resource & health situation, and prevention of discrimination to ensure fair participation of the marginalized community in the private and the public sectors.
- There is a need of active role of the State in Planning and its execution-
It is necessary to recognize that for the vast majority of the discriminated groups, State intervention is crucial and necessary. Similarly, the use of economic and social planning as an instrument of planned development is equally necessary. Thus, planned State intervention to ensure fair access and participation in social and economic development in the country is necessary. But it is possible only when state exercise its role in execution.
- There is a need of Improved Access to Capital and technological assistance–
The poverty level among the SC and ST cultivators is 30% and 40% respectively, which is much higher compared with non-scheduled cultivators (18%). Similarly, the poverty incidences of those in business is very high 33% for SC and 41% for ST compared with only 21% among non-scheduled businesses. The viability and productivity of self-employed households need to be improved by providing adequate capital, information, technology and access to markets. It is a pity that though the STs do own some land, they lack the relevant technological inputs to improve the productivity of their agriculture.
- There is a need of Strengthening of employment guarantee schemes There is a need to review and strengthen employment guarantee schemes both in rural and urban areas, particularly in drought-prone and poverty-ridden areas. Rural infrastructure and other productive capital assets can be generated through large-scale employment schemes. This will serve the dual purpose of ‘reducing poverty’ and ‘ensuring economic growth’ through improvement in the stock of capital assets and infrastructure.
- There is a need of Good Education and Human Resource Development-
Lower literacy level of education and the continual discrimination of SC/STs in educational institutions pose a major problem. The government should take a relook at the Education Policy and develop major programs for strengthening the public education system in villages and cities on a much larger scale than today. There is a necessity to reallocate government resources for education and vocational training. For millions of poor students located in rural areas, the loan schemes do not work. We should develop an affordable, uniform and better quality public educational system up to the university level. Public education system is our strength and needs to be further strengthened. Promotion of such private education systems that creates inequality and hierarchy should be discouraged.
- There is a need of Food Security Programs-
The public distribution system should also be revived and strengthened. In distributing Fair Price Shops in villages, priority should be given to the SC/ST female and male groups, as a number of studies have pointed out that they are discriminated upon in the Public Distribution System and in Mid-day Meal schemes.
- There is a need of Primary and Public Health System–
The public health system in rural areas has also been by and large neglected. Therefore, the primary health system for rural areas and public health system in urban areas must be revived and more funds should be allocated for the same.
- Untouchability and Discrimination should be prohibited–
The practice of untouchability and the large number of atrocities inflicted on Dalits continue even today mainly because of hidden prejudices and neglect on the part of officials responsible for the implementation of Special Legislations; i.e. the Protection of Civil Rights Act (PCRA) and the Prevention of Atrocities Act (POA). The Government should make a meaningful intervention in this regard so as to mitigate the sufferings of Dalits due to practice of untouchability and atrocities inflicted upon them and should also treat this matter on a priority basis to ensure that the officials and the civil society at large are sensitized on this issue.
From the above discussion finally we came to know that the idea of the rights of the marginalized sections of society has come to occupy a sort of centre stage in the contemporary discourses on human rights. These Marginalized communities have tried many ways to overcome the discrimination they were face through, religious solace, armed struggle, self improvement , education, economic progress. “Let’s continue to stand up for those who are vulnerable to being left out or marginalized”.
* Asst.Professor, SVLC, K.M. Puram, Mysore