Confronting Marginalisation

CONFRONTING MARGINALISATION

 

Confronting Marginalisation

Marginalisation refers to the process of excluding or discriminating against individuals or groups based on their social, economic, religious, or cultural background. It results in social exclusion, denial of opportunities, and unfair treatment, leading to a range of negative consequences for individuals and communities.

 Invoking Fundamental Rights

 Fundamental rights are the basic rights guaranteed to all citizens of India by the Constitution. These rights are essential for ensuring individual dignity, freedom, and equality. When these rights are violated, citizens have the right to invoke them and seek legal protection.

 

Key aspects of invoking fundamental rights:

 

Who can invoke them: All citizens of India, regardless of their social background, can invoke their fundamental rights.

When they can be invoked: When a fundamental right is violated or threatened to be violated by the State or any other individual or entity.

How they can be invoked: Through various legal mechanisms, including:

·        Writs: Orders issued by the High Court or Supreme Court to protect fundamental rights. These include habeas corpus (right to personal liberty), mandamus (compel an authority to perform its duty), prohibition (prevent an authority from exceeding its jurisdiction), and certiorari (quash an order of a lower court).

·        Public Interest Litigation (PIL): A legal action filed in a court by an individual or group on behalf of a public interest, even when they are not directly affected.

·        Fundamental Rights Petitions: A petition filed directly with the Supreme Court or High Court alleging violation of a fundamental right.

·        National Human Rights Commission (NHRC): An independent body that investigates allegations of human rights violations, including violations of fundamental rights.

 

Importance of invoking fundamental rights:

 

Protects individual rights: Ensures that individuals can enjoy their fundamental rights without fear of violation.

Holds the state accountable: Makes the state responsible for respecting and protecting the fundamental rights of its citizens.

Promotes equality and social justice: Helps to ensure that all citizens are treated equally and have access to justice.

Strengthens democracy: Ensures that the government is subject to the rule of law and protects individual liberties.

 

The Constitution lays down the principles that make our society and polity democratic, defined in and through the list of Fundamental Rights that are an important part of the Constitution. These rights are available to all Indians equally. Marginalised have drawn on these rights in two ways: 1) Insisting on their Fundamental Rights, they have forced the government to recognise the injustice done to them. 2) They have insisted that the government enforce these laws. The struggles of the marginalised influenced the government to frame new laws in keeping with the spirit of Fundamental Rights.

Article 17 of the Constitution – which abolishes untouchability – means that no one can prevent Dalits from educating themselves, entering temples, using public facilities and so on. It is wrong to practise untouchability, and it is a punishable crime now. There are other sections in the Constitution that abolish the practice. For example, Article 15 of the Constitution states that no citizen of India shall be discriminated against on the basis of religion, race, caste, sex or place of birth.

1.     Dalits can ‘invoke’ or ‘draw on’ a Fundamental Right (or Rights) in situations where they feel that they have been treated badly by some individual or community or even by the government.

2.     Draw the attention of the state to the Constitution to ensure justice for them.

3.     Other minority groups have drawn on the Fundamental Rights section of our Constitution to invoke the right to freedom of religion and cultural and educational rights.

4.     In the case of cultural and educational rights, distinct cultural and religious groups have the right to be the guardians of the content of their culture, as well as the right to make decisions on how best this content is to be preserved.

5.     Thus, by granting different forms of cultural rights, the Constitution tries to ensure cultural justice. The Constitution does this so that the culture of all groups is protected and preserved, and given equal importance.

 

Laws for the Marginalised

Marginalised communities face various challenges and discrimination based on their social, economic, religious, or cultural backgrounds. Laws play a crucial role in protecting their rights and promoting their inclusion in society.

There are specific laws and policies for the marginalised in our country.

 

Promoting Social Justice

Attempting to implement the provisions of the Constitution, State and Central Governments provide free or subsidised hostels for students of Dalit and Adivasi communities so that they can avail of education facilities that may not be available in their localities. The government also operates through laws to ensure to take concrete steps to end inequity in the system.

One such law/policy is the reservation policy, which is significant and highly contentious. The laws that reserve seats in education and government employment for Dalits and Adivasis are based on an important argument: in a society like ours, where for centuries, sections of the population have been denied opportunities to learn and to work in order to develop new skills or vocations. To ensure equality, a democratic government needs to step in and assist these sections.

How does the reservation policy work? Governments of Indian states have their own list of Scheduled Castes (or Dalits), Scheduled Tribes and backward and most backward castes. Students applying to educational institutions and those applying for posts in government are expected to provide proof in the form of caste and tribe certificates. If a particular Dalit caste or a certain tribe is on the government list, then a candidate can avail of the benefit of reservation. For admission to colleges, especially to institutes of professional education, governments define a set of ‘cut-off’ marks. Only the Dalit and tribal candidates who secured marks above the cut-off point can qualify for admission. These students also get special scholarships from the government.

 

Protecting the Rights of Dalits and Adivasis

In addition to policies, our country also has specific laws that guard against the discrimination and exploitation of marginalised communities. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, was passed in response to demands made by Dalits and other tribal groups regarding the ill-treatment and humiliation that they face. The treatment acquired a violent character in the late 1970s and 1980s. During this period, in parts of southern India, a number of Dalit groups came forward, and they refused to perform their so-called caste duties and insisted and demanded equal treatment. This resulted in the more powerful castes unleashing violence against them. Dalit groups demanded new laws that would list the various sorts of violence against Dalits and prescribe stringent punishment for those who indulge in them.

Meanwhile, the ACT distinguishes several levels of crimes.

1) Modes of humiliation: both physically horrific and morally reprehensible and seeks to punish those who

 (i) force a member of a Scheduled Caste or a Tribe to drink or eat any inedible or obnoxious substance;

 (ii) forcibly remove clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades them naked or with painted face or body or commits any similar act that is derogatory to human dignity.

2) Actions that dispossess Dalits and Adivasis of their meagre resources or which force them into performing slave labour. Thus, the Act sets out to punish anyone who

(iii) wrongfully occupies or cultivates any land owned by, or allotted to, … a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred. At another level, the Act recognises that crimes against Dalit and tribal women are of a specific kind and, therefore, seeks to penalise anyone who (iv) assaults or uses force on any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour her.

 

Adivasi Demands and the 1989 Act

The 1989 Act is important for another reason – it helped Adivasis to defend their right to occupy land that was traditionally theirs. Adivasis were often unwilling to move and were forcibly displaced from their land. Those who have forcibly encroached upon tribal lands should be punished under this law, as proposed by Activists. They have also pointed to the fact that this Act merely confirms what has already been promised to tribal people in the Constitution: that land belonging to tribal people cannot be sold to or bought by non-tribal people.

In cases where this has happened, the Constitution guarantees the right of tribal people to re-possess their land. Meanwhile, in cases where tribals have already been evicted and cannot go back to their lands, they must be compensated. That is, the government must draw up plans and policies for them to live and work elsewhere.