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31 October 2014
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 •  Vol #3, Issue #1, Combat Law
 •  Children
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Children's rights in India
Despite Constitutional guarantees of opportunity and civil rights, millions of children face wide-spread deprivation and discrimination. A large part of this stems from being seen hrough the lens of adults who make decisions for them, and who prefer to address their welfare rather than their rights, says Enakshi Ganguly Thukral.

Combat Law, Vol. 3, Issue 1 - Every time my 16-year old daughter gets on to stage to dance, she dusts some extremely fine shiny stuff on her face and it glitters and shines. By the time she is off the stage, most of the shiny glitter is gone, except for some bits of sparkle here and there, and by the next morning there is no trace of it. India's shine is much like that - here today, gone tomorrow - effervescent and transient.

Every day we see articles focusing on the shining and the non-shining `bits' of India. But if anything or anyone truly shines in India today, it is her children, comprising over one fourth of our population. Resilient and lively, they continue to smile and give hope in the not so shining bits of India that most of them inhabit. But then, they are not voters. What they think or feel does not count.

Indians constitute 16 per cent of the world's population, occupying 2.42 percent of its land area. India has more working children than any other nation, as also among the lowest female-male ratios. Despite Constitutional guarantees of civil rights, children face discrimination on the basis of caste, religion, ethnicity and religion. Even the basic need for birth registration that will assure them a nationality and identity remains unaddressed, affecting children's rights to basic services.

India is also home to one of the largest illiterate citizenries in the world. In the not so shining India we see, hear and read of, children are dying of starvation, while food in our granaries rots and feeds rats. We watch while the female sex ratio dips. Little children, barely able to stand, are married off flouting all laws. Little ones are sacrificed, trafficked and sold; as others are locked, abused, sodomised - the list is endless. And there are all those realities that never make the news. We know this is only the tip of the iceberg, but we choose not to act. Our silence and tolerance not only condones such violation of rights, it also makes us guilty of complicity.

Therefore, any understanding of human rights of children cannot be confined to some children - 'poor children', 'working children' and 'marginalised children'. Such categories only help us to remove ourselves from the problem. Let us not delude ourselves. Violations of children's rights are not limited to the poor and downtrodden. They happen in middle class and elite homes too, albeit in different forms, and the silence around these is even deeper. Also, any analysis on the situation of children must be understood within the context of the economic and political changes in the country. Of particular importance are globalisation and liberalisation, and the gender, caste and religious attitudes that prevail today. All these add to children's vulnerability and affect any action that may be taken for them.

Any understanding of human rights of children cannot be confined to some children - 'poor children', 'working children' and 'marginalised children'. Violations of children's rights are not limited to the poor and downtrodden. They happen in middle class and elite homes too.
 •  Give our children a chance

Children are not a homogeneous category. Like adults, they are divided into different categories based on social and economic status, physical and mental ability, geographical location etc. These differences determine the difference in the degree of their vulnerability. While gender discrimination exists almost all over the world, it is much greater in some countries - and India is definitely one of them. Girls in vulnerable situations such as poverty, disability, homelessness etc. find themselves doubly disadvantaged, by their gender and the physical, economic, political, social situation that they find themselves in. It is therefore imperative to take a gender perspective into account in examining the situation of children.

The Rights vs. Welfarist approach

The Constitution of India provides a comprehensive understanding of child rights. A fairly comprehensive legal regime exists for their implementation. India is also signatory to several international legal instruments including the Convention of the Rights of the Child (CRC). However, the government seems to be more comfortable with the idea of well-being rather than rights (with its political overtones). Child rights activists are faced with challenges of promoting and protecting rights as a positive social value.

Needless to say, ours is not the only government to do so. The Union Government's ideology resonates with the watering down of the rights based framework in the recent UN Special Session on Children which failed to reaffirm international pledges made in 1990 to protect the rights of children.

The government's approach remains largely welfarist. India is yet to adopt a single comprehensive code that addresses the provisions of the CRC. Clearly the draft National Policy (Charter) for Children which has been recently passed in parliament, and is envisaged as being such a code, is inadequate as it does not address the full range of rights. It does not make any reference to the CRC. In the words of the Joint Secretary Department of Women and Child, GOI, it captures the 'essence of the CRC' thereby does not need to refer to it!

Child Rights - From an adult's perspective

An examination of the laws shows that although they are meant to protect the interests of children, they have been formulated from the point of view of adults and not children. They are neither child-centred, nor child friendly, nor do they always resonate with the CRC.

The problem begins with the very definition of 'child' within the Indian legal and policy framework. The CRC defines children as persons below the age of 18 years, however different laws stipulate different cut-off ages to define a child. Only the Juvenile Justice (Care and Protection) Act 2000 is in consonance with the Convention. In the absence of a clear definition of a child, it is left to various laws and interpretations.

A child born out of wedlock or of a void or illegal marriage is considered 'illegitimate'. Children pay for the decisions taken by the parents and are denied inheritance rights. Even worse, a child born of rape is stigmatised and treated as 'illegitimate', both by society and law.
That our laws are not child friendly or child oriented is also evident in the distinction family laws make between legitimate and illegitimate children depending on the status of their parents' marriage or relationship. A child born out of wedlock or of a void or illegal marriage is considered 'illegitimate'. Children pay for the decisions taken by the parents and are denied inheritance rights. Even worse, a child born of rape is stigmatised and treated as 'illegitimate', both by society and law.

Access to health - A chimera

The health of our children continues to be a matter of grave concern, especially in the wake of growing privatisation of health services, and their increasing inaccessibility for the poor. This is a particularly serious situation as environmental degradation and pollution lead to a further deterioration in children's health. The working conditions that many children are forced to suffer worsens matters.

In our shining India, children suffer from malnutrition or die of starvation and preventable diseases. According to UNAIDS there are 170,000 children infected by HIV/AIDS in India. Children affected by the virus-whether children of victims or those who are infected themselves-- live on the fringes of society, ostracised by people they call their own, unloved and uncared for, even as our government continues to squabble over numbers of affected people. Even juvenile diabetes is reported to be taking on pandemic proportions.

While the Constitution lays down the duties of the State with respect to health care, there is no law addressing the issue of public health. Children's health care needs continue to be in great part dealt under the Reproductive and Child Health Programme of the Ministry of Health and Family Welfare, with a focus on reproductive health and safe motherhood and child survival. The other health needs of children are addressed by the country's primary health care system; with very little attempt to address these needs specifically or separately.

The population policy with its coercive manifestations in the states has of course proved most 'children unfriendly'. Parents aspiring to political positions are now forced to choose between children and politics. Law does not allow persons with more than two children to hold elected positions in local self governments-and many choose politics as they disown their children or give them up for 'adoption' in an effort to keep to the 'right' family size.

The Government has announced its National Health Policy 2000. One cannot but note that children do not find mention as a separate category - yet another example of the lack of child focus in our planning and implementation.

Education for all - A promise yet to translate

Education for all is also a promise held out by the state. An examination of State policies and programmes shows that education is not going to open the promised gateway to equality. Indeed if anything, it is a promise of 'differential education for all' (read 'some' even here). While some children continue to have access to mainstream schools or expensive private schools, the rest must contend with 'non-formal' second grade education provided by untrained and lowly paid 'para- teachers'. As if that was not enough, the new curriculum framework has opened up a can of worms on the kind of biased syllabus, with incorrect or incomplete content, that our children will be subjected to.

The passing of the 93rd Amendment Bill (passed as the 86th Amendment to the Constitution) making education a fundamental right, should have been an occasion to rejoice. Instead it has become an issue for another long struggle because it only reinforces the lack of political will to make education universal and accessible for all. By leaving out those in the critical 0-6 years age group, putting the onus of creating conditions on parents for sending children to school and making it their fundamental duty, by reinforcing parallel streams of education, the amendment has once again sealed the fate of poor and marginalised children.

Although the rhetoric speaks of free and compulsory education for all, in practice, the education system seems to be designed to keep children out of it. To implement the 86th Amendment, the government has drafted 'The Free and Compulsory Education Bill, 2003. Concerns and criticisms on this bill are being expressed by educationists and activists.

While some children continue to have access to mainstream schools or expensive private schools, the rest must contend with 'non-formal' second grade education provided by untrained and lowly paid 'para- teachers'.
Beatings, abuse, physical and mental torture faced by the students in schools is one of the reasons for the high dropout rate. It is well established that corporal punishment is detrimental to children's growth and development. It is in violation of their rights. But there is no comprehensive national law banning it, although several states have even enacted laws dealing with it. Moreover the National Education Policy, 1992 clearly states that corporal punishment should be firmly excluded from the education system. Despite that, however, there are several cases that have been registered against teachers in schools for use of violence.

At a recent workshop attended by children from across the country was a young spastic child named Debu.

I have a right to be called by my name. Why is it that all children are called by their names and I am called langda (lame) or even pagal (mad)?

This made all the other children sit up and look at Debu in a new light. While they had been discussing their rights, it had not occurred to them that children with disabilities may be denied even this basic right. Children with disability continue to suffer unequal opportunities for survival and development. They are denied personal or economic security, health care, education and all basic needs necessary for their growth. Further certain disabilities, such as, for example mental disability carry even greater stigma. And if the disabled child is a girl, then the discrimination is doubled. The rights of disabled persons has finally been recognised with the enactment of the Persons With Disabilities (Equal Protection of Rights and Full Participation) Act, 1995.

Children in situations of crime and exploitation

Recognising the flaws of the 1986 Juvenile Justice Act, the government passed the Juvenile Justice (Care and Protection) Act, 2000. But the knee jerk reaction in amending the law without a wider discussion and consultation with child rights practitioners, has left many who are concerned with children and work with them deeply distressed. In 2003 the government drafted amendments to the law. But, because of criticisms and concerns raised by several organisations and groups, it has been placed before a Parliamentary Standing Committee. The Committee is currently reviewing the law.

The Child Labour (Prohibition and Regulation Act) was enacted in 1986, to specifically address the situation of children in labour. However, this law distinguishes between hazardous and non-hazardous forms of labour, and identifies certain processes and occupations from which children are prohibited from working. It leaves out a large range of activities that children are engaged in and are exploited and abused. The large-scale exploitation and abuse of children employed in domestic work and hotels are cases in point.

Child trafficking is one of the most heinous manifestations of violence against children. This is taking on alarming proportions - nationally and internationally. Although, very little reliable data or documentation is available, meetings and consultations across the country have revealed the gravity and the extent of this crime. It is high time we understood and realised that children are trafficked for a number of reasons and this cannot be treated synonymously with prostitution. The absence of this comprehensive understanding and a comprehensive law that addresses all forms of trafficking to back it makes this issue even more critical.

Adoption: The need for greater checks and balances

Adoption is one of the best and appropriate forms of alternative family care. Indeed, it is the only way to break the mindset of institutional care for children, which has been posed as the only solution for many years.

However, adoption of children continues to be determined by religion of the adoptive parents or the child when religion is known. Only Hindus, Jains, Buddhists and Sikhs can adopt children. The personal laws of other religions - Muslims, Parsis, and Jews do not allow it. Even as it exists for Hindus, the law has serious flaws discriminating against married women. It allows only married men to adopt. Further, it only allows for adoption of children of opposite genders.

The Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for adoption making no exception on the basis of religion. So more complications may arise. Besides, the large scale setting up of baby shops and the selling of babies from poor families has caused panic across the country. We need to be careful not to throw the baby out with the bath water. Greater checks and balances are required to ensure that adoption is legal and proper, and that it is not being used as a means of trafficking of children.

Protection from, or by, instruments of violence?

In January 2002, a school going girl in Jammu, while discussing the Right to Protection said that even in the current environment of unrest she felt protected because she had armed guards, who accompanied her to school! She was not alone. There were others too who felt protected because they had guards. Incidentally, one of them was from the Kaluchak Army School in an army base, which was attacked by terrorists a month later. We need to ask ourselves what environment are we providing to our children where they need instruments of violence to feel protected?

In January 2002, a schoolgirl in Jammu said that even in the current environment of unrest she felt protected because she had armed guards, who accompanied her to school! What environment are we providing to our children where they need instruments of violence to feel protected?
Armed conflicts across the country, based on religion, ethnicity, and caste have affected the lives of children everywhere. The recent violence in Gujarat is still fresh in all our minds. Children continue to suffer from the conflict that Punjab faced in the last decade. The ongoing situation in Kashmir and in many of the North Eastern States has led to many child casualties. Children are both victims and perpetrators, brainwashed and incited into following adults in spreading violence. Even as they are seen as perpetrators of violence, they are victims of an adult worldview imposed on young minds.

Children and disaster mitigation

Thousands of children are homeless or living in inadequate living conditions. Thousands of others are displaced in the name of development and progress. Land is acquired for 'public purpose', while the benefits seldom include those who are evicted and displaced. Yet others are de-housed as a result of natural calamities - the floods, cyclones, earthquakes that have come to become almost a regular feature in our country. In all of these, while whole communities are affected, children are affected even more.

An estimated 3.3 million children were affected by the supercyclone that hit the coastal districts of Orissa on October 29, 1999. But NGOs reported that for five days after the cyclone, no special attention was focussed on the needs of children. There was very little information on where the children were, where they were going, or being taken.

How many children were actually displaced, how many died in the earthquake that hit Gujarat on 26 January, 2000? No one has exact numbers. This is true of all such situations of disaster or displacement. The need is to ensure that along with immediate relief measures, proper information is collected so that we can get a sense of the numbers affected, and ensure that children are helped to move back to a semblance of normalcy as soon as possible. This is to ensure that there are no long-term psychological implications. In the absence of a holistic disaster mitigation policy, which is also designed to be child friendly, this will not be possible. The same is true for rehabilitation policies for development- related displacement.

Child participation: Many miles to go

It is only with the ratifying of the Child Rights Convention that children's rights to participation began gaining formal recognition, although several NGOs had initiated processes to enlist participation of children and young adults long before the CRC. There is, however, no universal or accepted definition of child participation. Various groups and individuals have defined it according to their own understanding. There is still a fairly long journey before this 'inclusion' of children's participation is internalised and accepted widely.

Is the situation confronting the lives of our children bleak, or is there reason for hope? Can we promise them an India that truly shines? What do elections hold for these non-voters? Lest we forget, they are the adults of tomorrow, and they willhold the adults of today accountable someday.

Enakshi Ganguly Thukral
Combat Law, Volume 3, Issue 1
April-May 2004

Enakshi Ganguly Thukral works with HAQ: Centre for Child Rights. HAQ is dedicated to the recognition , promotion and protection of all children.

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