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Abstract
Tribal population is scattered throughout the world, but, though their varied cultures are highly talked about, their rights are often ignored. Tribal women, living through two degrees of vulnerability, one due to their tribal roots and another due to their biological sex, receive an even rawer end of the deal. The Commonwealth nation of India has a substantial tribal population. This paper analyzes the international and national safeguards available to India’s tribal women, and compares the extent of the justiciability of these legal instruments. The resources used for this purpose are mainly primary, as the focus has been on the text of these instruments and some landmark cases. It was found that there is a shocking absence of international legal instruments specifically for tribal women, and the applicability of those for tribal population or women is limited since India has not ratified their Optional Protocols. Though, on the national level, India’s dedication towards protecting its tribal population is apparent in the presence of specific statutes, and there are ample legal provisions specifically for safeguarding the rights of tribal women. Lastly, the paper suggests that India should deliberate on ratifying the international instruments that it has not ratified already.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Morton H Fried, The Notion of Tribe (Cummings Publishing Company 1975).
2 Constitution of India 1950, art 342- Scheduled Tribes- (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
3 CR Bijoy, Shankar Gopalakrishnan and Shomona Khanna, India and the Rights of Indigenous Peoples (AIPP Foundation 2010).
4 M Ahiraj, ‘Tribals continue to be exploited’ The Hindu (25 March 2015) https://www.thehindu.com/news/national/karnataka/tribals-continue-to-be-exploited/article7030196.ece/amp/ accessed on 13 June 2020.
5 M. Ahiraj, ‘Tribals continue to be exploited’ The Hindu (25 March 2015) https://www.thehindu.com/news/national/karnataka/tribals-continue-to-be-exploited/article7030196.ece/amp/ accessed on 13 June 2020.
6 Special Correspondent, ‘Atrocities against tribal women on the rise: study’ The Hindu (30 August 2011) https://www.thehindu.com/news/national/kerala/atrocities-against-tribal-women-on-the-rise-study/article2412358.ece accessed 30 July 2020.
7 Special Correspondent, ‘Atrocities against tribal women on the rise: study’ The Hindu (30 August 2011) https://www.thehindu.com/news/national/kerala/atrocities-against-tribal-women-on-the-rise-study/article2412358.ece accessed 30 July 2020.
8 Jitendra Kumar Premi, ‘Domestic Violence Against Tribal Women: With Special Reference to Pardhi and Gond Tribes of Chhattisgarh’ (2016) 7(3) Res J Hum Soc Sci 205.
9 Dr. Haseena V A, ‘Tribal Women as the Victims of the Interrelation Between the Empowerment and Domestic Violence in Kerala’ (2015) 4(2) Indian J Res https://www.worldwidejournals.com/paripex/recent_issues_pdf/2015/February/February_2015_1423916039__10.pdf accessed 30 July 2020.
10 Brinda Karat, ‘When Rape Becomes a Weapon Against Tribal Women’ NDTV (12 January 2017) https://www.ndtv.com/opinion/when-rape-becomes-a-weapon-against-tribal-women-1647667 accessed on 30 July 2020; ‘BJP Seeks Independent Probe into Crimes Against Women in Odisha’ The New Indian Express (1 July 2020) https://www.newindianexpress.com/states/odisha/2020/jul/01/bjp-seeks-independent-probe-into-crimes-against-women-in-odisha-2163772.html accessed on 30 July 2020.
11 Sonia Rathore, ‘Safety of Tribal Women- A National Challenge’ (Safecity, 4 January 2018) https://safecity.in/tribal-women-safety-a-national-challenge/ accessed on 30 July 2020.
12 Constitution of India 1950, art 51- The State shall endeavor to (a) promote international peace and security, (b) maintain just and honourable relations between nations, (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another, (d) encourage settlement of international disputes by arbitration.
13 Constitution of India 1950, art 253- Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
14 Jolly George Vergese v. Bank of Cochin, 1980 AIR 470.
15 Vishaka v. State of Rajasthan, AIR 1997 SC 3011; National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
16 Preamble of Charter of United Nations- WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,
to practice tolerance and live together in peace with one another as good neighbours, and
to unite our strength to maintain international peace and security, and
to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
to employ international machinery for the promotion of the economic and social advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS
Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.
17 ‘The Universal Declaration of Human Rights’ (United Nations) https://www.un.org/en/universal-declaration-human-rights/ accessed on 18 May 2020.
18 UDHR, art 1- All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
19 UDHR, art 2- Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
20 UDHR, art 7- All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
21 UDHR, art 3- Everyone has the right to life, liberty and security of person.
22 UDHR, art 4- No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
23 UDHR, art 5- No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
24 UDHR, art 12- No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
25 UDHR, art 13- (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country.
26 UDHR, art 17- (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.
27 ‘The Universal Declaration of Human Rights’ (Office of High Commissioner of Human Rights) https://www.ohchr.org/en/udhr/pages/udhrindex.aspx accessed on 14 June 2020.
28 See Justice (Retd.) K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
29 ‘International Covenant on Civil and Political Rights’ (Office of High Commissioner of Human Rights) https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx accessed on 18 May 2020.
30 ‘International Covenant on Economic, Social and Cultural Rights’ (Office of High Commissioner of Human Rights) https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx accessed on 18 May 2020.
31 ICCPR, art 2- 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
To ensure that the competent authorities shall enforce such remedies when granted.
32 ICCPR, art 3- The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
33 ICESCR, art 2- 1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.
34 ICESCR, art 3- The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
35 ICCPR, art 6(1)- Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
36 ICCPR, art 7- No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
37 ICCPR, art 8- 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2. No one shall be held in servitude.
3. (a) No one shall be required to perform forced or compulsory labour;
(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;
(c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:
(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;
(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;
(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
(iv) Any work or service which forms part of normal civil obligations.
38 ICCPR, art 12(1)- Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
39 ICCPR, art 17- 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
40 ICCPR, art 26- All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
41 ICCPR, art 27- In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
42 ICESCR, art 15- 1. The States Parties to the present Covenant recognize the right of everyone:
To take part in cultural life;
To enjoy the benefits of scientific progress and its applications;
To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
43 ICCPR, art 6 and Constitution of India 1950, art 21.
44 ICESCR, art 12 and Constitution of India 1950, art 47.
45 ICCPR, art 41(1)- A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration…
46 ‘Optional Protocol to ICCPR’ (Office of High Commissioner of Human Rights) https://www.ohchr.org/en/professionalinterest/pages/opccpr1.aspx accessed on 18 May 2020.
47 ‘Optional Protocol to ICESCR’ (Office of High Commissioner of Human Rights) https://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCESCR.aspx accessed on 18 May 2020.
48 ‘Convention on the Elimination of All Forms of Discrimination Against Women’ (Office of High Commissioner of Human Rights) https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx accessed on 18 May 2020.
49 ‘Declaration on the Elimination of Violence against Women’ (United Nations) https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.21_declaration%20elimination%20vaw.pdf accessed on 21 June 2020.
50 CEDAW, art 6- States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.
51 DEVAW, art 2- Violence against women shall be understood to encompass, but not be limited to, the following:
Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;
Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
52 DEVAW, art 3- Women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. These rights include, inter alia:
The right to life;
The right to equality;
The right to liberty and security of person;
The right to equal protection under the law;
The right to be free from all forms of discrimination;
The right to the highest standard attainable of physical and mental health;
The right to just and favourable conditions of work;
The right not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment.
53 CEDAW, art 18- 1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect:
Within one year after the entry into force for the State concerned;
Thereafter at least every four years and further whenever the Committee so requests.
2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention.
54 ‘Optional Protocol to CEDAW’ (Office of High Commissioner of Human Rights) https://www.ohchr.org/en/professionalinterest/pages/opcedaw.aspx accessed on 18 May 2020.
55 TIP Protocol, art 3(a)- “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
56 TIP Protocol, art 11- 1. Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons.
2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in the commission of offences established in accordance with article 5 of this Protocol.
3. Where appropriate, and without prejudice to applicable international conventions, such measures shall include establishing the obligation of commercial carriers, including any transportation company or the owner or operator of any means of transport, to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State.
4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions in cases of violation of the obligation set forth in paragraph 3 of this article.
5. Each State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entry or revocation of visas of persons implicated in the commission of offences established in accordance with this Protocol.
6. Without prejudice to article 27 of the Convention, States Parties shall consider strengthening cooperation among border control agencies by, inter alia, establishing and maintaining direct channels of communication.
57 ‘United Nations Declaration on the Rights of Indigenous Peoples’ (United Nations) https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf accessed on 18 May 2020.
58 UNDRIP, art 1- Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all 8 human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.
59 UNDRIP, art 2.
60 UNDRIP, art 3.
61 UNDRIP, art 4.
62 UNDRIP, art 6.
63 UNDRIP, art 7(1).
64 UNDRIP, art 7(2).
65 UNDRIP, arts 10 and 26.
66 UNDRIP, art 17.
67 UNDRIP, art 15(1).
68 UNDRIP, art 16.
69 UNDRIP, arts 20(1), 21, 23 and 32(1).
70 UNDRIP, arts 20(2), 28, 32(3) and 40.
71 UNDRIP, art 29.
72 UNDRIP, arts 15(2), 18, 19, 27, 30, 32(2), 36(2) and 38.
73 UNDRIP, arts 5, 8, 11, 12, 13, 14, 24, 25, 31 and 34.
74 UNDRIP, art 38.
75 UNDRIP, arts 41 and 42.
76 UNDRIP, art 39.
77 UNDRIP, arts 45 and 46.
78 UNDRIP, art 43.
79 UNDRIP, art. 22- 1. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.
2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.
80 UNDRIP, art. 44- All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.
81 ‘General Assembly Adopts Declaration On Rights Of Indigenous Peoples; ‘Major Step Forward’ Towards Human Rights For All, Says President’ (United Nations) https://www.un.org/press/en/2007/ga10612.doc.htm accessed on 13 May 2020.
82 ‘C107 - Indigenous and Tribal Populations Convention, 1957’ (International Labour Organization) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C107 accessed on 18 May 2020.
83 ‘C169 - Indigenous and Tribal Populations Convention, 1989’ (International Labour Organization) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169 accessed on 18 May 2020.
84 ‘International Labour Standards regarding Indigenous and Tribal Peoples’ (International Labour Organization) https://www.ilo.org/global/topics/indigenous-tribal/WCMS_502755/lang–en/index.htm accessed on 13 May 2020.
85 ‘International Labour Standards regarding Indigenous and Tribal Peoples’ (International Labour Organization) https://www.ilo.org/global/topics/indigenous-tribal/WCMS_502755/lang–en/index.htm accessed on 13 May 2020.
86 ‘International Labour Standards regarding Indigenous and Tribal Peoples’ (International Labour Organization) https://www.ilo.org/global/topics/indigenous-tribal/WCMS_502755/lang–en/index.htm accessed on 13 May 2020.
87 ‘International Labour Standards regarding Indigenous and Tribal Peoples’ (International Labour Organization) https://www.ilo.org/global/topics/indigenous-tribal/WCMS_502755/lang–en/index.htm accessed on 13 May 2020.
88 ‘Committee of Experts on the Application of Conventions and Recommendations’ (International Labour Organization) https://www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/committee-of-experts-on-the-application-of-conventions-and-recommendations/lang–en/index.htm accessed on 13 May 2020.
89 ‘Conference Committee on the Application of Standards’ (International Labour Organization) https://www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/conference-committee-on-the-application-of-standards/lang–en/index.htm accessed on 13 May 2020.
90 ILO Constitution, art 24- Representations of non-observance of Conventions- 1. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
91 ILO Constitution, art 25- Publication of representation- 1. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
92 ‘Representations’ (International Labour Organization) https://www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/representations/lang–en/index.htm accessed on 13 May 2020.
93 ‘International Labour Standards regarding Indigenous and Tribal Peoples’ (International Labour Organization) https://www.ilo.org/global/topics/indigenous-tribal/WCMS_502755/lang–en/index.htm accessed on 13 May 2020.
94 ‘Joint Stakeholders’ submission on the situation of the rights of indigenous peoples in India’ (UPR Info) https://www.upr-info.org/sites/default/files/document/india/session_27_-_may_2017/js46_upr27_ind_e_main.pdf accessed on 21 June 2020.
95 ‘The Constitution of India’ (Government) http://legislative.gov.in/sites/default/files/coi-4March2016.pdf accessed on 18 May 2020.
96 Preamble of Constitution of India 1950- WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
97 Union of India v. Madan Gopal Kabra, 1954 AIR 158; D.S. Nakara v. Union of India, 1983 AIR 130; Ahmedabad St. Xaviers College v. State of Gujarat, 1974 AIR 1389; Mohan Lal Tripathi v. District Magistrate, Rae Bareilly, 1993 AIR 2042.
98 AIR 1973 SC 1461.
99 Constitution of India 1950, art 12- In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
100 Constitution of India 1950, arts 14 to 18.
101 Constitution of India 1950, art 19.
102 Constitution of India 1950, art 21.
103 Constitution of India 1950, arts 23 and 24.
104 Constitution of India 1950, arts 25 to 28.
105 Constitution of India 1950, arts 29 and 30.
106 Constitution of India 1950, art 15(3)- Nothing in this article shall prevent the State from making any special provision for women and children.
107 Constitution of India 1950, art 15(4)- Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
108 Constitution of India 1950, art 15(5)- Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
109 Constitution of India 1950, art 16(4)- Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
110 Constitution of India 1950, art 16(4A)- Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
111 Constitution of India 1950, art 16(4B)- Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
112 AIR 1993 SC 477.
113 (2006) 8 SCC 212.
114 (2018) 10 SCC 396.
115 Constitution of India 1950, art 23- Prohibition of traffic in human beings and forced labour-
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
116 Constitution of India 1950, art 29- Protection of interests of minorities-
(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
117 Constitution of India 1950, art 30- Right of minorities to establish and administer educational institutions-
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
118 Constitution of India 1950, art 32- Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
119 Constitution of India 1950, art 46- Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections- The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
120 Constitution of India 1950, art 37- Application of the principles contained in this Part- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
121 Constitution of India 1950, art 244- Administration of Scheduled Areas and Tribal Areas-
(1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram.
(2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram.
122 Constitution of India 1950, art 244A- Formation of an autonomous State comprising certain tribal areas in Assam and creation of local Legislature or Council of Ministers or both therefor-
(1) Notwithstanding anything in this Constitution, Parliament may, by law, from within the State of Assam an autonomous State comprising (whether wholly or in part) all or any of the tribal areas specified in Part I of the table appended to paragraph 20 of the Sixth Schedule and create therefor—
(a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the autonomous State, or (b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law.
(2) Any such law as is referred to in clause (1) may, in particular,-
specify the matters enumerated in the State List or the Concurrent List with respect to which the Legislature of the autonomous State shall have power to make laws for the whole or any part thereof, whether to the exclusion of the Legislature of the State of Assam or otherwise;
define the matters with respect to which the executive power of the autonomous State shall extend;
provide that any tax levied by the State of Assam shall be assigned to the autonomous State in so far as the proceeds thereof are attributable to the autonomous State;
provide that any reference to a State in any article of this Constitution shall be construed as including a reference to the autonomous State; and
make such supplemental, incidental and consequential provisions as may be deemed necessary.
(3) An amendment of any such law as aforesaid in so far as such amendment relates to any of the matters specified in sub-clause (a) or sub-clause (b) of clause (2) shall have no effect unless the amendment is passed in each House of Parliament by not less than two-thirds of the members present and voting.
(4) Any such law as is referred to in this article shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.
123 Constitution of India 1950, art 330.
124 Constitution of India 1950, art 332.
125 Constitution of India 1950, art 335.
126 Constitution of India 1950, art 338A.
127 ‘PESA, 1996’ (Tribal) https://tribal.nic.in/actRules/PESA.pdf accessed on 18 May 2020.
128 ‘Forest Rights Act, 2006’ (Tribal) https://tribal.nic.in/FRA/data/FRARulesBook.pdf accessed on 18 May 2020.
129 Forest Rights Act, s 6.
130 Forest Rights Act, s 5.
131 ITPA, s 5- Procuring, inducing or taking 4 [person] for the sake of prostitution- (1) any person who-
procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or
induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
takes or attempts to take a person, or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or
causes or induces a person to carry on prostitution;
shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed under this sub-section,-
(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;
(3) An offence under this section shall be triable-
(a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
132 ITPA, s 6- Detaining a person in premises where prostitution is carried on-
(1) Any person who detains any other person, whether with or without his consent,-
in any brothel, or
in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person, shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1).
(2A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.
(3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there,-
withholds from her any jewellery, wearing apparel, money or other property belonging to her, or
threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person.
(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.
133 ITPA, s 8- Seducing or soliciting for purpose of prostitution-Whoever, in any public place or within sight of, and in such manner as to be seen or heard from any public place, whether from within any building or house or not-
by words, gestures, wilful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or
solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution,
shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees:
Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.
134 ‘Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989’ (National Commission of Safai Karamcharis) https://ncsk.nic.in/sites/default/files/PoA%20Act%20as%20amended-Nov2017.pdf accessed on 18 May 2020.
135 Atrocities Act, s 3(1)(k)- performs, or promotes dedicating a Scheduled Caste or a Scheduled Tribe woman to a deity, idol, object of worship, temple, or other religious institution as a devadasi or any other similar practice or permits aforementioned acts
136 Hyun Jin Lee, ‘Temple Prostitutes: Devadasi Practice And Human Trafficking In India’ (2011) 8 Regent J Int’l L. 1.
137 Krithiha Rajam, ‘How Devadasis Went From Having High Social Status to Being Sex Slaves and Child Prostitutes’ (YourStory, 24 April 2017) https://yourstory.com/2017/04/devadasis-india accessed on 30 July 2020.
138 Krithiha Rajam, ‘How Devadasis went from having high social status to being sex slaves and child prostitutes’ (YourStory, 24 April 2017) https://yourstory.com/2017/04/devadasis-india accessed on 30 July 2020.
139 Sonam Mittal, ‘Why ‘progressive’ South India is unable to shun the Devadasi system’ The Federal (19 December 2019) https://thefederal.com/the-eighth-column/why-progressive-south-india-is-unable-to-shun-the-devadasi-system/ accessed on 30 July 2020.
140 Ankur Shingal, ‘THE DEVADASI SYSTEM: Temple Prostitution in India’ (2015) 22(1) UCLA Women’s Law J 107–123. https://escholarship.org/uc/item/37z853br accessed on 30 July 2020.
141 Atrocities Act, s 3(1)(w)- (i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient’s consent;
(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe.
Explanation.––For the purposes of sub-clause (i), the expression “consent” means an unequivocal voluntary agreement when the person by words, gestures, or any form of non-verbal communication, communicates willingness to participate in the specific act:
Provided that a woman belonging to a Scheduled Caste or a Scheduled Tribe who does not offer physical resistance to any act of a sexual nature is not by reason only of that fact, is to be regarded as consenting to the sexual activity:
Provided further that a woman’s sexual history, including with the offender shall not imply consent or mitigate the offence
142 Atrocities Act, s 3(1)(zb)- causes physical harm or mental agony of a member of a Scheduled Caste or a Scheduled Tribe on the allegation of practicing witchcraft or being a witch
143 Atrocities Act, s 3(2)(v)- commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property 1 [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine
144 Atrocities Act, s 3(2)(va)- commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine
145 AIR 1980 SC 1789.
146 ‘Joint Stakeholders’ submission on the situation of the rights of indigenous peoples in India’ (UPR Info) https://www.upr-info.org/sites/default/files/document/india/session_27_-_may_2017/js46_upr27_ind_e_main.pdf accessed on 21 June 2020.
Additional information
Notes on contributors
Pragya Rakshita
Pragya Rakshita is a student of B.A. LL.B. (Hons.) at National University of Study and Research in Law, Ranchi, India. She is interested in public international law, with a special focus on international human rights. She may be contacted at [email protected].