Blog

Blog Post no. 1

By Shreya Jasoria

3rd yr., B.A.,LL.B, Dr. Ram Manohar Lohiya National Law University

Assistant Editor, International Review of Human Rights Law

This blog analyses the Newyork Times Report :“The Flight of Refugees Around the Globe” by Sergio Pechanha and Tim Wallace, June 20, 2015:

According to this article, nearly 60 million people are displaced around the world because of conflict and persecution. In one week about 14 million people have fled for taking refuge in other states. What is the reason these people have to leave their homes and flee away far from their own country? More of violence only leads to displacement, damages and destruction.

Article 3 of UDHR lays down that everyone has the right to life, liberty and security of person.

But the Syrian Displacement shows a different picture altogether. These rights are at stake of about 11.6 million people who have displaced and are living abroad since the end of 2014. This is nearly half of Syria’s entire population. Nearly all of these 11.6 million people have settled in Turkey, Lebanon, Jordan and Iraq.

About 15 million people are displaced in sub-Saharan Africa- 4.5 million fled last year. Long-lasting conflicts in Somalia,, Sudan, and the Democratic Republic of Congo, as well as civil war in South Sudan, are some of the top contributors. Disturbance in one region has lead to a number of problems in other regions of the world as well. These people do not receive equal rights and benefits in other nations since they are refugees. Even though there are rights laid down, but they are not taken care of.

Article 22 of the same lays down that everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each state, of economic, social and cultural rights indispensable for his dignity and free development of his personality  

When these refugees flee from their own countries, most wind up with their immediate neighbors which are often some of the world’s poorer nations. Even though this Article 22 is a part of UDHR, in terms of hosting displaced people, developed countries stand at a very low footing. Combined, the United States and France had 7,60,000 refugees last year while on the other hand Ethiopia hosted around 6,65,000 refugees. Rich nations prefer more of funding aid refugees in the developing world.  Developed nations which can actually help in protecting and promoting the human rights of the refugees. They have more resources as well as capacity when compared to the developing nations, who at present host more refugees than the developed nations.

Blog Post no. 2

By Shreya Jasoria

3rd yr., B.A.,LL.B, Dr. Ram Manohar Lohiya National Law University

Assistant Editor, International Review of Human Rights Law

The Neglected Aspect of Human Rights of Prisoners- Women Prisoners

“Upon that little tent of blue

Which prisoners call the sky,

And at every drifting cloud that went

With sails of silver by.” [1]

In Indian prisons, human rights violation and administrative repression is at its worst. The lack of facilities, the slow moving wheel of justice delivery system crushes human spirit unthinkably. But a society which is ‘hell bent’ on conspiring against women, the condition of ‘women criminal’ is double damned.

The female prisoners have largely remained a neglected sect in any discourse on human rights of prisoners because they are very few in numbers. Along with facing the ‘common’ problems of prisons like- overcrowded prisons, lack of medical aid, sanitation, non-availability of vocational training, lack of clean water and health food, almost non-existing legal aid etc., they also have to pay for being women, though ‘crime’ and ‘criminality’ are gender neutral terms. Unique health problems, non-acceptability by the society, problems of children accompanying them, various psychological disorders are only a few issues to name. Sexual abuse cases of Rameeza Bee, Mayatyagi can never be forgotten on how helpless women prisoners are.

The international and national legal instrumentalities like UDHR, Standard Minimum Rules for the Treatment of Prisoners 1955, Articles 21 and 20 of constitution or Guidelines of R.D. Upadhyay case 2006, all  provide that whatever may be the type of custody, both ‘he’ and ‘she’ have right to be treated with dignity.

[1] Jawahar Lal Nehru quoting Oscar Wilde’s poem The Ballad Biography of Reading Gaol in his autobiography.

Blog Post 3

Avisha Khatri

3rd yr., B.A.,LL.B, Gujarat National Law University

Assistant Editor, International Review of Human Rights Law

Is the Nordic Model of Sweden an answer to Decriminalization of prostitution?

-Avisha Khatri

Decriminalization of prostitution is a rising debate in the field of international human rights. As of now, some countries have legalized prostitution while some others still haven’t. Meanwhile, there are countries like Iceland and Norway that have followed the Nordic Model or Swedish model of approach to prostitution.

In Sweden, selling sex is not considered a crime, but buying it is. This Nordic model has produced some really good results in reducing trafficking and prostitution which are two sides of the same coin. The studies had shown that prostitution fell down by almost 50%, but let’s not forget that these studies mainly talk of the prostitution on record.

Sweden’s modern laws on prostitution are based on a belief, that the very existence of prostitution is the product of gender inequality, and that by its very nature it presents women as commodities. The government views prostitution as a trade that invariably victimizes its participants and thus such a trade has no business operating in a gender-equal society.

If prostitution is completely decriminalized, sex workers will be able to enforce their rights. They will be able to approach the criminal justice system in cases of violation of their rights without the fear of being the accused themselves. Access to justice will become much easier as a result. They will be better empowered to demand to their clients to use protection and practise safe-sex. Labour laws will finally be applicable to them too and they will be in a good position to get benefits that any other labourer gets. , it is observed that criminalization of sex can fuel and foster violence, hence decriminalization of the sex may be the better option.

If a sex-worker plans to change her profession and start a new life, stigma attached to the fact that she was a sex-worker   may pose a big hurdle in the path of change. Criminalizing will not eradicate prostitution, as it will just move under the covers. Amnesty also sides with the argument, made recently by prostitutes in France, that penalizing customers would drive prostitution further underground, making the workers more vulnerable to dangers.

Probably Nordic approach has helped Sweden but it might not be so successful in other Asian, Pan-Asian, American countries.  The stigma which is attached to sex –workers   may play the role of a hurdle in these countries.

The idea here is to decrease the practice of prostitution and hence decreasing practices like, illegal migration, trafficking, force labour etc.

Probably the answer to this question is to legalize prostitution but with strict regulation by the government and legislations which make the life of a sex-worker easier. Though sex workers are pre-dominantly females, it should be considered that their male counterparts get equal rights. Let’s not forget that just like taxes on alcohol and cigarettes earn great revenue for the government, prostitution would do the same. Also, deterrent methods rather than strict punishment go a long way in improving situations like this.

Blog Post no. 4

By Shreya Jasoria

3rd yr., B.A.,LL.B, Dr. Ram Manohar Lohiya National Law University

Assistant Editor, International Review of Human Rights Law

Black Money in India: Shadow over the growth of economy

Bringing back  black money from abroad has been one of the pet issues of Narendra Modi government. Black money refers to the money on which taxes have not been paid. In the following article, black money will be explained in general ,the estimates of various committee reports have been discussed  and the solutions for solving this problem have been deliberated upon.

Black Money is both an economic and social problem. In the latter con­text, it is perceived as a problem with adverse sociological effects on society, in the former con­text, it is perceived as a parallel economy, an underground economy or an unofficial economy that is the consequence of the economic policies of the government and has damaging effects on country’s economy and na­tion’s planning development.[1]

A study conducted by the IMF about a decade and a half back showed that with regard to the size of the underground money, India holds the first rank followed by the United States and Can­ada having the second and the third ranks. An estimate by Washington-based research and advocacy group Global Financial Integrity in its report[2] suggests that around $439.6 billion of black money left Indian borders between 2003 & 2012.  There are around 70 tax havens across the world. These tax havens are unlikely to co-operate with Indian Government to help it bring back black money stashed abroad.  The economies of many tax havens run on black money.

This does not mean that the government should give up in its pursuit of black money. It should rather concentrate on the black money stashed in India itself. As per a confidential report submitted to the government by the National Institute of Public Finance and Policy (NIPFP) in December 2013, the black money could be three-fourths of the size of Indian economy.[3]

Around 2.9% of Indians pay income tax. The previous Finance Minister P. Chidambaram in his February 2013 Budget Speech  said India had only 42,800 people with a taxable income of Rs. 1 crore or more.

YEAR NO. OF DOLLAR BILLIONAIRES
2013 2.14 lakh
2014 2.27 lakh

This clearly shows us that there is lot of tax evasion in the country. This is the black money which the government should be going after. Information technology can play a big role in this. The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 is a silver lining in these clouds of black money shadowing over the Indian economy.

[[1]]Puja Mondal, “Black Money in India: Meaning, Concept, Magnitude and Measures to Control Black Money”, available at http://www.yourarticlelibrary.com/corruption/black-money-in-india-meaning-concept-magnitude-and-measures-to-control-black-money/39349/.

[[2]] Illicit Financial Flows from Developing Countries 2003-2012.

[[3]] This report was accessed by The Hindu in August 2014.

Blog Post no. 5
By Rishi Raju
4th yr., B.A.,LL.B. Jindal Global Law School

Associate Editor, International Review of Human Rights Law

AGE OF ULTRON? – AN ALTERNATE REALITY FOR IHL AND USE OF AUTONOMOUS WEAPONS*

INTRODUCTION

“As contemporary warfare is becoming progressively intricate and complex due to introduction of various conflicts, increase in quality of weaponry and technology,[1] a new set of issues regarding warfare techniques seems to have to cropped up. One such novel technological advancement in the course of warfare would be the introduction of “autonomous weapons” or “killer robots” as an auxiliary for military officials. Autonomous weapons have been defined as those weapons that, “once activated, and engaged targets without further human operator involvement”.[2] At such an instance, a question arises as to whether the fate of warfare will have similar shortcomings as they portray it to be in the movies.

ETHICAL GOVERNOR (JARVIS) THAT MANAGES ULTRON

Ultron, an unmanned technology, possess the ability to operate without human supervision.[3] It would identify its targets and trigger itself,[4] it memorizes details accurately, and calculates precise time intervals during which the attack is to be carried out.[5] The constraints over arbitrary attacks are governed by an ethical governor known as Jarvis.[6]

Jarvis is required to evaluate the surrounding information it senses, and determine whether an attack is necessary and whether it would be prohibited under International Humanitarian Law.Further, if it is not in conflict with IHL, it can only proceed if the attacking target is required in pursuant of a military objective.[7]

Tony Stark began with an empirical analysis of ethical decisions made by soldiers during the course of warfare. It then allowed the same reasons and calculations taken by the soldier which faced certain ethical dilemmas and acted in accordance with IHL, to be mimicked within the design of artificial intelligence of Ultron.[8] Ultron proposes to take the human out of warfare, in order to ensure more humane results in accordance with IHL standards.[9]

Principle of Distinction

Additional Protocol I to the Geneva Convention, requires military officials to target only military objectives and prohibits attacks on civilians.[10] At any instant where there is a doubt with respect to the target, a reasonable attacker is presumed to hesitate before attacking[11] and if he cannot distinguish between a civilian and a military target, he is prohibited to attack.

Ultron’s attack system is based on the ability to positively identify enemy soldiers, tanks, airplanes, etc. Ultron being an autonomous weapon, it could distinguish tanks and planes, through sensory technology, much as a radar. Ultron’s lack of human emotions such as the fear of vengeance and anger allow it the make decisions that are not adulterated and allow it to make decisions that are solely based on surrounding set of military objectives.[12]

At any social dilemma where the attack will not be able to distinguish between military objectives and civilians, Ultron acting emotionlessly, and administered by Jarvis, it is allowed to make decisions in favour of the presumption created.

Principle of Proportionality

The principle of proportionality seeks to protect civilians, it states that where collateral damage to civilians occur, it is required to be proportional to the military advantage.[13] Military advantage is understood as a concrete and direct advantage that is anticipated from an attack and from a military operation as a whole.[14]

Ultron can integrate larger amount of information from various sources in response to a military attack far more quickly than human soldiers can. The information flows from remote data sensors and intelligence from Army’s network centric warfare concept[15] and Global Information Grid.[16] Its broad range of robotic sensors are far better equipped for battlefield observation that human sensory abilities.[17]

Additionally, fear and hysteria are always latent in warfare, and often result in fearful measures and criminal behaviour.[18] Ultron being able to mimic behavioural responses of a “reasonable commander”, is created to act in accordance with IHL standards,[19] is able to respond and actualize the benefits and ill-effects of an attack proportionate to the advantage in light of objective standards.

*Rishi Raju (BA LLB 2012).

[1] U.S. Cyber Command: Organizing for Cyber Space Operations: Hearings before the H. Comm. On Armed Services, 111th Cong (1) 2010. (Statement of Reporter Skelton, Chairman, H. Comm. on Armed Services).

[2] U.S. Department of Defence, DIR. 3000.09, AUTONOMY IN WEAPON SYSTEM 13 (May 12, 2015) (Available at: http://www.dtic.mil/whs/directives/corres/pdf/300009p.pdf), accessed on May 12, 2015.

[3] Armin Krishnan, Killer Robots: Legality and Ethicality of Autonomous Weapons, (Ashgate Publishing), p. 4 (2009), (Available at:https://books.google.co.in/books?id=klvlN9PgBeYC&pg=PR2&source=gbs_selected_pages&cad=2#v=onepage&q&f=false).

[4] Supra n. 3.

[5] Noel Sharkey, America’s Mindless Killer Robots Must Be Stopped, The Guardian, December 3, 2012, accessed May 12, 2015, http://www.theguardian.com/commentisfree/2012/dec/03/mindless-killer-robots.

[6] Ronald C. Arkin, Governing Lethal Behavior in Autonomous Robots (Boca Raton, FL Press, 2009), p. 69.

[7] Ibid  p. 183-185.

[8]Asaro, Modelling the Moral User, IEEE Technology and Society Magazine, Vol. 28 (1), 2009, p. 22-23. See also John O. Mcginnis, “Accelerating Al”, Northwester University Law Review, Vol. 104, 2010, p. 369

[9] Benjamin Kasran, Autonomous Weapon Systems: A Coming Legal Singularity?, 2013 U. ILL. J.L. TECH. & Policy, p. 45-52.

[10]Article 48, Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Art. 48, (Entered into force December 7, 1978) at 598.

[11] Michael N Schmitt, Autonomous Weapons Systems and International Humanitarian Law: A Reply to Critics, December 4 2012, Harvard National Security Journal feature (2013) at 16.

[12] Vincent C. Müller & Thomas W. Simpson, Autonomous Killer Robots Are Probably Good News, 2012, (Available at: http://www.sophia.de/pdf/2014-Killer-Robots-Policy-Paper.pdf), p. 6.

[13] Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (New York: Cambridge University Press), 2012, at p. 274.

[14] Jean-Marie Henckaerts et al, eds, Customary International Humanitarian Law, Vol. 1, ICRC (Cambridge, UK: Cambridge University Press, 2005), p. 49. See alsoYvez Sandoz, Christophe Swinarski& Bruno. Zimmermann, eds, Commentary on Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva: MartinusNijhoff, 1987), p. 2209.

[15] R. McLoughlin, “Fourth generation warfare and network-centric warfare,” Marine Corps Gazette, 2006; http://www.mcamarines.org/GAZETTE/06mcloughlin.as p, accessed May 11, 2015.

[16]U.S. Defense Advanced Research Projects Agency (DARPA), Scalable Network Monitoring, Strategic Technology Office, Broad Agency announcement 07-52, Aug. 2007.

[17] Ronald C. Arkin, Ethical Robots in Warfare, (Available at: http://www.cc.gatech.edu/ai/robot-lab/online-publications/arkin-rev.pdf), accessed on May 11, 2015.

[18] Ibid.

[19]Supra n. 8.  See also John O. Mcginnis, “Accelerating Al”, Northwester University Law Review, Vol. 104, 2010, p. 369.

 

BLOG POST no. 6

By Rishi Raju
4th yr., B.A., LL.B., Jindal Global Law School

Associate Editor, International Review of Human Rights Law

 

IMPACT OF COUNTER TERRORISM EFFORTS ON THE RIGHT TO BE FREEDOM FROM TORTURE

The act of terrorism has been one of the leading threats to international peace and security.[1] The overt danger of terrorism is that it does not have a definitive term for understanding and recognition. Modern terrorists do not represent a state or a conclusive geographical area; they represent an ideal, a political stigma or a violent voice against government regimes.[2]Certain states while dealing with terrorist suspects have posed the suspect with the real risk of torture or degradation of human dignity, thereby violating the suspect’s human rights.[3]

The duty of the state is to safeguard the detainees from violent practices by prison officials and grant him personal life and liberty and due process rights.[4] However, reports have shown that state officials have flocked rights of these terrorist suspects.  It is argued that though the suspect has allegedly engaged in terrorist activities that posed a threat to the nation, however, an act of torture against such suspects would at no means be justified by state officials.

The use of torture techniques against terrorist suspects is quite prevalent in a number of states. The act of waterboarding the victims is one of the most common technique used by states in order to torture the victims. The victim is made to feel an imminent danger of drowning by putting a wet cloth on the face of the victim and pouring water over it.[5] Such treatments against the detainee are a threat to his life and liberty and amount to degradation of his dignity.[6] Other practices such as prolonged solitary confinement, measures taken by officials to cause high levels of stress to the victims, shocks and verbal abuses are used by officials in order to extract information from these detainees.[7]

Detention camps such as Guantanamo Bay practice torture techniques in order to extract vital information from the terrorist, and in doing so, violate his rights.[8]The detainees in such camps are made to face brutal techniques of interrogation, where they are forced to answer officials in vicinity of dangerous animals.[9]It has been reported that the United States of America has tortured, electrocuted, attacked by dogs, beaten and asked to perform inhuman activities against the suspects.[10]United States has been known to practice extreme forms of torture against terrorist suspects post the 9/11 attacks. The officials have used verbal abuses, laid the detainees naked on slabs of ice, tied and blindfolded the suspect and detained them for endless hours[11] while not allowing them to challenge the imprisonment before a Court of law.[12]

The crime of torture has been laid down in various treaties like United Nations Convention against Torture, the four Geneva Conventions and Torture Convention, which ban the use of torture, cruel or inhuman treatment absolutely, even during the times of war or civil disturbances.[13]There are no sanctions attached to states against such crimes, the existence of such rules in the international community acts as a blanket prohibition,[14] while states continuously use these acts in order to extract information from the prisoners.

A significant development has been issued by the international community in order to protect terror suspects against the acts of torture. The entry of Optional Protocol to the Convention against Torture[15] on June 22, 2006, is intended to protect terror suspects and detainees from torture, cruel or inhuman treatment.[16]  The Committee intends to set up national preventive mechanisms and use other practical measures in order to stop state officials from using violent measures to deal with terrorism suspects.[17] The introduction of such a Convention is created to protect the rights of such suspects and uphold the sanctity of law and order over rigid procedures of states against terror suspects.

The idea behind providing suspects and detainees humanitarian rights to protect them from the harsh practices of interrogation and cruel treatment that are carried out by officials in detention camps. However, in recent times states have used rather extreme measures in order to gain information from suspects about the acts and whereabouts of terrorist organizations. Prison camps in the United States, such as Guantanamo Bay have been reportedly using torture tactics that are of life-threatening nature. Therefore, it is necessary for the international community to uphold the sanctity of the law and create various measures to grant terror suspects their rights, since an act of terror or injustice cannot be met by injustice by the acts of states.

[1] Security Council, Expressing Deep Concern Over ‘Continuous Terrorist Attacks’, Calls for Renewal of Global Solidarity Against Threat Manifested After 9/11 – Available at: http://unispal.un.org/UNISPAL.NSF/0/4A9DCB9CBD2A2AFA8525751C00692C9E (Accessed on: September 14, 2015)

[2] Ruth Wedgwood, Responding to Terrorism: The Fight Against Bin Laden, 24 Yale J. Int’l L. 559,559   (1999).

[3] Office of the United Nations High Commissioner for Human Rights, Fact Sheet no. 32 on Human Rights, Terrorism and Counter- Terrorism. Available at www.ohchr.org/Documents/Publications/Factsheet32EN.pdf (Accessed on: May 21, 2014).

[4]Office of the United Nations High Commissioner for Human Rights, Fact Sheet no. 32 on Human Rights, Terrorism and Counter- Terrorism. Available at www.ohchr.org/Documents/Publications/Factsheet32EN.pdf (Accessed on: May 21, 2014).

[5] Jamie Mayerfeld, Playing by Our Own Rules: How U.S. Marginalization of International Human Rights Law Led to Torture, 20 HARV. HUM. RTS. J. 89, 90 (2007)

[6] David Luban, Human Dignity, Humiliation and Torture, Kennedy Institute of Ethic Journal, 211, 221 (2009)

[7]Human Rights Committee, general comment N° 20 (1992), para.6, and “Situation of detainees at Guantánamo Bay” (E/CN.4/2006/120, para. 53).

[8]Ibid.

[9] Nick Bauman, Did the Bush Administration Experiment on Detainees, Global Policy Forum, June 6, 2010.

[10] The Legal Prohibition Against Torture, Human Rights Watch, March 11, 2003.

[11]Matthias Gebauer, John Goetz and Britta Sandberg, Detainee Abuse Continues at Bagram, Global Policy Forum, September 21, 2009.

[12] Liliana Segura, Supreme Court to Bush, Global Policy Forum, June 13, 2008.

[13] Is Torture ever Justified, The Economist, September 20, 2007.

[14]David Luban, The War on Terrorism and the End of Human Rights, 22 Phil. & Pub. Pol’y Q. 9-14 (2002).

[15] UN General Assembly, Optional Protocol to the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 9 January 2003, A/RES/57/199, available at: http://www.refworld.org/docid/3de6490b9.html (Accessed on: May 22, 2014).

[16]Ibid.

[17]Ibid.

______________________________________

 

Blog Post no.7

By Raghavi Viswanath

3rd yr. B.A.,LL.B.(H.) NLIU Bhopal

Assistant Editor, International Review of Human Rights Law

 

EXCLUSION OF DISABLED CHILDREN FROM EDUCATION SYSTEM IN SOUTH AFRICA

In 2015, the South African government announced that it had reached universal enrolment in primary education.[1]However, the reality is a far cry from that. Half a million children with disabilities have been shut out of the education system in South Africa.[2] A 94- page Human Rights Watch report Complicit in Exclusion: South Africa’s Failure to Guarantee Inclusive Education for Children with Disabilities revealed that children with disabilities in South Africa face discrimination in receiving school education.[3]

The right to education has been embodied in several international human rights instruments such as the Universal Declaration of Human Rights [4] as a fundamental human right and widely regarded as the ‘passport to human development’.[5] The absoluteness and universality of this right has also been internationally accepted in the form of ‘Education for All’ millennium development goal.[6] The right to free and compulsory education has also been conferred upon children with disabilities.

Ironically, South Africa was one of the first countries to ratify the Convention on the Rights of Persons with Disabilities in 2007, which entitles persons with disabilities to the right to education under article 24 of CRPD. More importantly, the South African Constitution itself enshrines the right to education as a public entitlement and explicitly prohibits discrimination on grounds of disability and the state is required to take proactive steps to prevent such discrimination.[7]

 

 

Inadequacy of Measures in fulfilling the rights of children with disabilities

Studies have revealed the systemic inadequacies that deprive disabled children from realizing their right to receive quality education and training, on par with their non-disabled peers. The most common justifications for refusing to admit children with disabilities into mainstream schools are the risks of inorganic integration and the distractions posed to the trainers and other learners by such integration. As a result, parents are often forced to send their children to schools which are equipped to handle the special needs of differently-abled children.[8]

Such exclusion is a blatant violation of South Africa’s own domestic laws. The Schools Act, 1996 enacted in the aftermath of the international condemnation the country faced for its apartheid regime, states that when determining the admission of a learner with disabilities in a public school, education officials must take into account the rights and wishes of learners with special education needs as well as the rights and wishes of the parents of such learner. The Schools Act also mandates that people with disabilities and experts on special education needs of learners be represented in governing bodies of ordinary public schools.[9] However, school officials often refer students with disabilities to special schools, failing to address their special needs or examine their abilities before making such a referral.

The UN Committee on the Rights of Persons with Disabilities has repeatedly requested State parties to put an end to segregation of disabled children.[10] It has been observed that inclusion into mainstream schools largely benefits such children and helps them capitalize on the available opportunities and put their skills to productive use. But disabled children have been persistently denied access to the benefits of institutionalized inclusive education.

On the flip side, special schools also entail prohibitive costs that cannot be ignored. Such schools are often located far away from the residential areas which makes it all the more difficult and cumbersome for parents to ensure regular attendance of their children. A Human Rights Watch report found that no special schools are currently listed in any “no-fee” schools list produced by the government.[11] This reflects the lack of institutionalized support offered to such children.

Special schools have a different set of challenges to overcome. The standard of curriculum delivery in these schools is poor. This is exacerbated by factors such as the dearth of teaching knowledge, training, skills; lack of motivation; and an absence of individualized planning.[12] Most teachers at ordinary schools are not trained to deal with the diverse needs of children suffering from such medical conditions or any impairment. Parents have reported instances where they’ve felt that the teachers don’t facilitate the holistic and inclusive educational experience of disabled children. It has also been argued that the ‘one size fits all’ policy is faulty because it limits the avenues available to such students after school.[13] Sexual violence and physical abuse is an additional threat to children with disabilities. Children with disabilities are reported to be at 3 to 5 times increased risk of abuse than their non-disabled peers.[14]

Underlying causes of inequities in access to services

One of the major barriers to the effective implementation of inclusive education is the lack of appropriate training for teachers. There is an urgent need for an action plan to focus on the needs of all learners who experience learning difficulties by improving the capacity of teachers to plan their day to day teaching and adjust to differentiated curriculums. This ensures that children with disabilities have a wide array of meaningful subject choices that helps them develop skill-set to gain productive employment after schooling.

The crux of the problem, sadly, lies in the lack of social cohesion and community support in encouraging acceptance for these children in schools and other public spheres. It is unfortunate that despite the positive changes initiated by the transition from the approach based on the medical/welfare model of disability to one based on the social model (which sees disability as a human rights issue);[15] this is often not reflected in the attitudes and approaches of service providers and society at large.

While several national policies have been formulated to govern the State’s obligations to secure the free and compulsory education, the inconsistency and the lack of clarity in the strategic plan for implementation contributes to the lack of synergies between policies. This dis-coordinated approach creates further difficulties in budgetary allocations and fragmentation of the required services. On the one hand, the Government departments are not adequately informed about the service needs, whereas the NGO’s working in the disability sector that can bridge this information gap are not able to access government funding.[16]

Recommendations

Usually, children with disabilities are admitted into schools at a much later stage and therefore are faced with a disadvantage right from the beginning. This increases the possibility of drop-outs. A crucial component of the solution to this problem is admitting such children in Early Development Centres (EDC) in accordance with the mandates of the Children’s Act of 2007.[17] The expansion of ECD must target those children most in need of early childhood stimulation and development – including children with disabilities and those from poor communities.

In the long term, however, the government should aim to integrate and accommodate these children into mainstream schools. Accommodation can only be incentivized by encouraging greater investment in mainstream schools so as to create a disability-friendly environment. Inclusive education is in reality, a shared goal that can only be achieved if all the concerned stakeholders, including the civil society and the parents, work in tandem. Implementation, however, does not end with the formulation of policy. It requires a dual focus on the diverse needs of the children and monitoring their response to the accessibility-oriented policies. This helps ensure that effective mechanisms are put in place to combat abuse and discrimination.

 

[1] Elin Martinez, It doesn’t feel very universal from here, Right to Education Project, 22 May, 2015.

[2] http://www.aljazeera.com/news/2015/08/south-africa-disabled-children-schools-150818132336753.html (30th October, 2015).

[3] Tania Page, South Africa’s disabled children shut out of school, Al Jazeera, 18 August, 2015 https://www.hrw.org/report/2015/08/18/complicit-exclusion/south-africas-failure-guarantee-inclusive-education-children (last accessed 30th October, 2015).

[4] Article 26, Universal Declaration of Human Rights, 1948.

[5] Education for All goals, UNESCO, http://www.un.org/en/globalissues/briefingpapers/efa/ (last accessed 29th October, 2015).

[6] Ibid.

[7] Section 9(3), Constitution of the Republic of South Africa (1996).

[8] DSD, DWCPD and UNICEF. 2012. Children with Disabilities in South Africa: A Situation

Analysis: 2001-2011. Pretoria: Department of Social Development/Department of Women, Children and People with Disabilities/UNICEF.

[9] Admission Policy for Ordinary Public Schools, Department of Education, General Notice 2432 of 1998,

[10] United Nations, Committee on the Rights of Persons with Disabilities, “Concluding observations on the initial report of Argentina as approved by the Committee at its eighth session (17-28 September 2012), CRPD/C/ARG/CO/1, para. 38.

[11] Department of Basic Education, “School Fees and Exemption – No Fee Schools”, undated, http://www.education.gov.za/Parents/NoFeeSchools/tabid/408/Default.aspx (last accessed 3rd October, 2015).

[12] Supra, see note 8.

[13] National Stakeholder workshop, 24 May 2011.

[14] David Miller and Jon Brown, Protecting disabled children from abuse, 2014, http://www.nspcc.org.uk/services-and-resources/research-and-resources/right-to-be-safe/( last accessed on 23rd October, 2015)

[15] Office of the Deputy President (1997) Integrated National Disability Strategy and OSDP

(2008) National disability policy framework and guidelines for the implementation of the national disability policy framework.

[16] Supra, note 8.

[17] Ibid.

_________________________________________________________________

Blog Post no. 8
By Vaibhavi Tadwalkar
3rd yr. BA,LLB, NLIU Bhopal, India
Assistant Editor, International Review of Human Rights Law

An analysis of the Supreme Court’s stand on the Fatwa in the case of

Vishwa Lochan Madan v. Union of India & Others

INTRODUCTION:

In terms of religious significance and Islamic jurisprudence, a fatwa is an Islamic legal pronouncement, issued by an expert in religious law (mufti), pertaining to a specific issue, usually at the request of an individual or judge to resolve an issue where Islamic jurisprudence (fiqh), is unclear.[1] This means that a fatwa is a legal ruling given by Muslim scholars based on religious evidence. Therefore, fatwas are primarily based on the four main sources of Islamic law namely, the Quran (which is the holy book of Islam), the Sunnah (which incorporates sayings of the Prophet), the consensus of Islamic scholars and in cases where there is no concrete evidence to rely on, these scholars formulate opinions based on inductive or deductive reasoning and the corpus of such opinions is known as ijtihaad.

The Supreme Court of India, on 7th July 2014 in a public interest petition filed by advocate Vishwa Lochan Madan, ruled that fatwas issued by Shariat courts or muftis had no legal sanctity, meaning that there will be no civil or criminal consequences for the defiance of these legal opinions rendered over issues of Islamic law.[2] The court found that it violated citizens’ fundamental rights by imposing religion-based opinions on them. The issuance of fatwas was not deemed illegal. However, they are no longer binding or enforceable. Those who are the subject of the fatwas now have the option of simply ignoring them under Indian law. The Supreme Court’s stand on the fatwa can be analyzed through its decision in this public interest petition, which was heard by a bench comprising of Justice CK Prasad and Justice Pinaki Chandra Ghose.

ISSUES AND CONTENTIONS:

The All India Muslim Personal Law Board has appointed certain people who are called Ulemas. They are legal scholars who apply the principles of Shariat law and deliver rulings. From the early twentieth century, an institution called the Dar-ul-Qaza, known in common parlance as the shariat courts, has been operating in many parts of the country. The Dar-ul-Qaza is devised as a permanent alternative dispute resolution (ADR) mechanism to resolve family disputes of consenting parties.[3] The Dar-ul-Qaza does not issue fatwas and also does not administer criminal law; it simply resolves family disputes by applying principles of Islamic law. The petitioner challenged the validity of the Dar-ul-Qazas, claiming that the Dar-ul-Qazas sought to set up a parallel jurisprudential system.

The Petitioner pleaded to the Apex Court to declare such institutions illegal on the basis that religious clerics did not have the authority to impose such rulings that no one could oppose and thereby curtail fundamental rights.He further called upon the Supreme Court to disband all Shariat Courts, restrain the All India Muslim Personal Law Board, Dar-ul-Ulooms and Dar-ul-Qazas from training any muftis and lastly, prayed to the Court to restrain them from adjudicating marital disputes amongst Muslims.

The stand of the principal respondent, the Union of India, was that fatwas are primarily advisory in nature and are not binding.[4] While the Dar-ul-Qazas are accorded with the powers to issue fatwas by Shariat sources, they still cannot enforce the fatwas as they have no legal value. Further, the Dar-ul-Qaza functions as an arbitrator, mediator, negotiator or conciliator in matters pertaining to family dispute or any other dispute of civil nature between the Muslims and that a few bad examples may not justify abolition of system, which otherwise is found useful and effective.[5]

THE JUDGEMENT:

The Supreme Court, upon hearing the arguments from both sides, adjudicated that the Dar-ul-Qazas have firstly not been created by laws enacted by competent legislatures, and neither they have legal authority to enforce their rulings. By this logic, the fatwas issued by them cannot be questioned or challenged in any court of law. Further, the Court held that fatwas have no legal status in our Constitutional scheme.[6]

The Court however made it clear that the religious background of fatwas cannot be used as tool to coerce people to abide them. One has to understand the subtle differences between declaring fatwas illegal (which the Court did not do) and preventing fatwas from infringing on individual’s fundamental rights. The Court maintained the religious background of fatwas by not declaring them illegal per se.

The bench staunchly put forth its stand that no religious institution could impose rulings that curtailed the fundamental freedoms of individuals, and ordered that Dar-ul-Qazas could not issue fatwas pertaining to rights of persons who did not seek the fatwa or having direct interest in its issuance. Furthermore, it declared that when a fatwa was issued against the wishes of any person, then he or she could bring an action against its issuance in a Court of law. It said that faith cannot be used as a dehumanizing force and to force a punishment upon an innocent person.

ANALYSIS:

This judgment has far-reaching effects since there have been a catena of fatwas issued against persons for bizarre reasons, like banning a popular all-girls Kashmiri band[7], asking Muzaffarnagar’s Imrana to treat her husband as her son after she was raped by her father-in-law[8] and many more. The Court’s recommendation that fatwas should not be issued unless asked for by the person involved or the person having direct interest in the matter[9] is of immense significance since these fatwas have an effect on an individual’s fundamental rights, which would be grossly violated if such a parallel judicial system is permitted. Thus, this judgment has now broadened the horizon of fundamental rights of Muslims in the country, who till now have been majorly governed by their Personal Laws. On the other hand, this judgment has also opened floodgates for litigation against fatwas for violation of fundamental rights and it now remains to be seen how a balance is maintained between the application Muslim Personal Laws and the fundamental rights of Muslims, in the backdrop of their religious practices and the modern-day notion of a democratic society.

 

[1] http://www.islamicsupremecouncil.org/understanding-islam/legal-rulings/44-what-is-a-fatwa.html

[2] Vishwa Lochan Madan v. Union of India & Ors,  (2014) 7 SCC 707 (Hereinafter “the Judgment”), at p.16, accessible at http://judis.nic.in/supremecourt/imgs1.aspx?filename=41747 (last accessed on 25th January, 2016)

[3] http://www.thehindu.com/opinion/op-ed/misunderstanding-a-good-judgment/article6225968.ece (last accessed on 29th January, 2016).

[4] Page 6 of the Judgment.

[5] Page 6 & 7 of the Judgment.

[6] Page 13 of the Judgment.

[7] http://www.theguardian.com/world/2013/feb/05/kashmir-all-female-rock-group-disband (last accessed on 26th January 2016).

[8]Supra n. 4.

[9] Page 15 of the Judgment.

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