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Salvaging An Individual’s Fundamental Rights From The Stranglehold Of Group Rights

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Our Constitution is based on the principle of equal citizenship, protecting the rights of an individual through fundamental rights guaranteed in Part-III of the Indian Constitution. However, seeing past atrocities being committed against certain identities urged the constitution makers, specifically Dr. B.R. Ambedkar, to insert articles which protect the culture and speech of these minority groups.

At times, there comes a point of friction between fundamental rights guaranteed to individuals against the rights guaranteed to group identities. The latter supersedes the former in such a way that the former is struggling to find its relevance and freedom. One such controversial article is Article 26 which states: “Group identities have rights to manage their own affairs, including the right to excommunicate a person.”

Religion plays a substantive role in a nation like India, giving identity to an individual. Moreover, it has also played a negative and much relevant role in denying basic civil and economic rights to certain group identities. Thus, in India, religion cannot be without reasonable state interference. This is the very reason why the judiciary, time and again, must mediate the tussle between the group rights against individual rights as the extent and situations in which these group rights can be exercised is undefined.

The basis of excommunicating is completely gender-biased in most cases. From instant Triple Talaq to female genital mutilation to the Goolrukh Gupta case in 2017, the rights of women have been completely suffocated. The right to freedom of religion under Article 25 is always found at the mercy of Article 26.

Evolution of the phrase “essential religious practices”

Infringement of individual’s right to freedom of religion was accepted as a natural outcome in the case of Sardar Saifuddin Saheb vs State of Bombay 1962 in which a provision of the Bombay Prevention of Excommunication Act 1946 was struck down by a five-judge bench.

Shielding unjust practices of the group rights under the blanket of the phrase, “essential religious practices”  has been often criticised over years. Gradually, the judiciary started pronouncing judgements pertaining to group rights with a different perspective altogether. Interpretation of the phrase was not just limited to the practices “essentially religious”, rather questioning whether the practice is “essential to religion” and if yes, does it meet the reformist requirements of the constitution?

The High Court of Rajasthan held that Jain religion’s practice santhara – voluntary and systematic fasting to death was illegal since it amounted to abetment of suicide and cannot be found in any scriptures, articles and preaching thus, concluding it to be not an integral part of the religion.

The Hon’ble Supreme Court, in the case of Goolrokh Gupta vs Burjor Pardiwala and Others, held a landmark judgement in the favour of Gupta by quashing the Gujarat High Court order. It ruled that marrying outside her community does not infringe her right to profess her religion and her right to enter Parsi temples or performing the last rites of her father since marrying under the Special Marriage Act retains the original identity of an individual and does not engulf it. Moreover, excommunication on the basis of marrying a non-Parsi is not a practice essential to sustain the identity of a group.

The Sabarimala Temple denying the entry of women in a place of worship is a violation of Article 14 of the Constitution, Article 17 and restriction on female autonomy In justification of the ban on the entry of woman the defence taken by the religious groups was that of Article 26 (Right of religious groups to manage their own affairs).

The Supreme Court has countered the defence by stating the limitations of morality, public order and health on Article 26 making it a non-absolute right.

Thus, the tug of war between the individual’s fundamental rights and the group rights is a real struggle for the Indian Judiciary. The purpose of the religious groups should be to protect individual rights better from unreasonable state interference and to protect religious denominations from being engulfed by the majority. Therefore, the right to excommunicate an individual under Article 26 of the Indian Constitution should be struck down or the article should be amended in a way which clearly defines the scope of group rights, situations where the group rights are in a conflicting zone with individual’s fundamental rights and lastly the basis of excommunication should be essential in maintaining the group’s identity.

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Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

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With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

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A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
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Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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