Human Rights of Disadvantaged Group Notes | LL.M. Semester 2 | Mumbai University | munotes

Contents

Module I

1. What This Paper Is About, and the Paper That Fixes It 1
2. What Makes a Group Disadvantaged 6
3. Disadvantage, Vulnerability and Marginalisation 10
4. The Universal Declaration, and the Equality the Concept Rests On 14
5. The Declaration's Economic and Social Articles 18
6. Formal Equality and Substantive Equality 23
7. Article 14, and the Classification Test 28
8. Reasonable Classification, and the Arbitrariness Doctrine 33
9. Article 15, and the Enabling Clauses 38
10. Article 16, and Reservation in Public Employment 43
11. Article 17, and What Abolition Means 48
12. Articles 19, 20 and 21 53
13. Articles 23 and 24: Forced Labour and Child Labour 58
14. Articles 25 to 28, and Freedom of Religion 63
15. Articles 29 and 30, and the Rights of Minorities 68
16. Article 32, and Why the Remedy Is Itself a Right 72
17. The Scheduled Castes and the Scheduled Tribes: Articles 341 and 342 77
18. The Backward Classes, Article 340 and Article 342A 81
19. Who Is a Minority in Indian Law 85
20. Women as a Disadvantaged Group 89
21. The Women's Convention, and the Standard It Sets 94
22. The Convention's Substantive Articles 99
23. Children, Article 24 and Article 21A 106
24. Persons with Disabilities, and the Social Model 111
25. Labour: the Unorganised Worker and the Bonded Labourer 115
26. Tribal and Indigenous Communities, and Article 244 120
27. The Aged, and a Constitutional Silence 125
28. Transgender Persons, and a Group Recognised Late 130
29. Caste, Descent, and the Racial Discrimination Convention 134
30. The Economic and Social Covenant, and Why It Matters Here 139
31. The Covenant's Substantive Rights 144
32. The Directive Principles as the Social Justice Programme 150
33. Article 46, Article 47, and the Weaker Sections 155
34. Reservation of Seats: Articles 330 to 335 160
35. Articles 336, 337 and 339, and the Anglo-Indian Community 165
36. Article 350, and the Linguistic Minority 169
37. The Constitutional Scheme of Protection, Stated as a Whole 174
38. Module I Assessed: What the Concept Does and Does Not Settle 179

Module II

1. What Emerging Human Rights Jurisprudence Means 184
2. Why the Judiciary Rather Than the Legislature 188
3. Public Interest Litigation, and Why It Matters Here 192
4. The Relaxation of Locus Standi 197
5. The Epistolary Jurisdiction 201
6. Procedural Innovation: the Commission, the Amicus and the Report 205
7. Article 21 Expanded, and the Right to Live with Dignity 209
8. The Right to Livelihood 214
9. Article 23, Forced Labour, and What Force Means 219
10. The Bonded Labour Act: Abolition and Extinguishment 224
11. The Act's Machinery: District Magistrates and Vigilance Committees 229
12. The Offences, and the Trial 235
13. Bonded Labour Before the Courts 239
14. The Judiciary and the Unorganised Worker 244
15. The Unorganised Workers' Social Security Act: the Scheme 248
16. Registration, Boards and Facilitation Centres 254
17. The Judiciary and Child Labour 259
18. The Child and Adolescent Labour Act: the Prohibition 264
19. The Regulation of Conditions of Work 269
20. The Penalties, the Fund and the Inspectors 274
21. The Convention on the Rights of the Child: the Four General Principles 279
22. Article 12, and the Right of the Child to Be Heard 284
23. The Convention's Articles About Disadvantaged Children 289
24. The Judiciary and the Rights of Children 296
25. The Judiciary and Tribal and Indigenous Communities 301
26. The Forest Rights Act: a Right Recognised Rather Than Conferred 306
27. Duties, the Gram Sabha and the Committees 312
28. The Panchayats Extension Act, and Consent in a Scheduled Area 318
29. The Judiciary and Women's Rights 324
30. Guidelines Drawn from a Convention India Had Ratified 329
31. The Judiciary and Persons with Disabilities 334
32. The Judiciary and Transgender Persons 339
33. The Judiciary and People Living with HIV 344
34. Compensation in Public Law 349
35. Continuing Mandamus, and Judicial Monitoring 354
36. Landmark Judicial Pronouncements, and How to Use Them 358
37. The Criticisms of Judicial Activism 363
38. The Answers to Those Criticisms 367
39. The Limits of What a Court Can Do for a Disadvantaged Group 372
40. Module II Assessed: What the Judiciary Has Actually Delivered 376

Module III

1. What Enforcement Means for a Group 380
2. Article 32 and Article 226 Compared 384
3. The National Human Rights Commission, and Section 12 389
4. The State Human Rights Commissions 394
5. Human Rights Courts Under Section 30 398
6. The National Commission for Minorities: Why It Exists 402
7. Its Constitution, Term and Composition 406
8. Its Section 9 Functions, and the Civil Court Powers 411
9. Grants, Accounts and the Annual Report 416
10. The Notification of a Minority, and Why the Act Does Not Define One 421
11. The National Commission for Minorities Assessed 425
12. The National Commission for Women: Why It Exists 430
13. Its Constitution, Term and Committees 435
14. Its Section 10 Functions 440
15. Section 16, and the Duty to Consult the Commission 445
16. The Watchdog Claim, and Whether the Act Supports It 450
17. The Commission's Practical Functioning 454
18. Article 338, and the National Commission for Scheduled Castes 459
19. Article 338A, and the National Commission for Scheduled Tribes 464
20. Article 338B, and the National Commission for Backward Classes 469
21. The Powers and Functions of the Scheduled Caste and Scheduled Tribe Commissions 474
22. The Atrocities Act: the Offences 479
23. The Duties of the State, and the Section 10 Removal Power 485
24. Special Courts, and the Section 18 Bar 491
25. The Rights of Victims and Witnesses 497
26. The Commissions for Protection of Child Rights, and the Children's Courts 503
27. The Chief Commissioner for Persons with Disabilities 509
28. The State Commissioner, the Special Court and the Offences 514
29. The HIV and AIDS Ombudsman 520
30. The Maintenance Tribunal for Senior Citizens 525
31. The Appellate Tribunal, and the Maintenance Officer 530
32. Old Age Homes, Medical Support and the Offences 535
33. The National Council for Transgender Persons 541
34. What the Commissions Have in Common, and Where They All Stop 546
35. Why Enforcement Fails for a Disadvantaged Group 551
36. Module III Assessed: the Machinery and Its Gaps 556

Module IV

1. What a Future Perspectives Question Is Asking For 561
2. From Welfare to Rights 565
3. Intersectionality, and a Person in Two Groups 569
4. Human Rights of Stateless Persons: Who Is One 573
5. The 1954 Convention: Treatment, Papers and Expulsion 578
6. The 1961 Convention, and Preventing Statelessness 584
7. India and Statelessness: the Citizenship Act 591
8. The HIV and AIDS Act: Discrimination and Consent 597
9. Disclosure, Confidentiality and the Duty to Prevent 603
10. Obligations on Government and on Establishments 609
11. The Disability Convention: Purpose and Principles 615
12. The Convention's Substantive Rights 621
13. Education, Health, Work and an Adequate Standard of Living 628
14. Reasonable Accommodation as a Legal Duty 636
15. The 2016 Act: the Rights and Entitlements 641
16. Education, Skill Development and Employment 650
17. Health, Rehabilitation, Reservation and Accessibility 657
18. A Convention Enacted Almost Provision for Provision 664
19. The 2019 Act: Recognition and Identity 670
20. Obligations, Employment, Residence and Health 676
21. The Criticism of the 2019 Act 682
22. The Aged, and the Demographic Case for a Right 689
23. Climate, Displacement and the Newly Disadvantaged 695
24. Technology, Exclusion and the Digital Divide 700
25. The Gap Between the Statute and the Group It Names 706
26. What India Has Done Well for Disadvantaged Groups 711
27. What Is Still Missing 716
28. The Case for a Single Anti-Discrimination Statute 722
29. Data, Identification and the Problem of Counting a Group 728
30. The Role of Civil Society and of the Group Itself 733
31. Caste, the Treaty Bodies, and the International Future 739
32. Women, the Personal Laws, and the Reservations India Entered 744
33. The Future Perspectives, Stated as a Set of Propositions 750
34. Module IV Assessed: What the Next Twenty Years Require 756