Rights of the Child

Rights of the Child

 

All legislations for protection of child rights have to take categorical and unambiguous position on children’s rights, ensuring State commitment and obligation to provide all structures, institutions and processes for delivering services to children 

 

There is unanimity on the importance of protecting children and their right to freedom and dignity. It was enshrined in the Constitution of India. Yet there have been gross violations of children’s rights since independence and serious gaps in the delivery of services for children. There is a need therefore to understand the core principles for delivering services to children and an adherence to a rights based perspective. Recent enactments, such as the right to education act and protection of children from sexual offences have been child centric clearly emphasizing the rights of children. Some policies like the Integrated Child Development Scheme (ICDS) and Integrated Child Protection Scheme (ICPS) have also shown that decentralisation and involvement of the community and civil society as equal partners with the government are important components for effective realisation of children’s rights. 

Provisions for Children in Constitution of India 

The framers of Constitution of India recognised the importance of secure childhood and protection of children’s rights as crucial component s for  laying the foundations of India’s democracy. Therefore Article 39 (f) of Directive Principles of State Policy of the Constitution stated that ‘children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.’  

Reiterating the values of social justice it stated “that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”. Further, recognising the importance of right to education, Article 45 commits that “The State shall endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years”. In fact it is the only article in the Constitution that makes a time bound commitment.  

While a rights based perspective is essentially universal, the framers of the Constitution recognised the need for affirmative action and thus in Article 46 it is stated that “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.”  

The crystallisation of this guiding principle of equality and social justice was possible in the charged atmosphere of independence from colonial subjugation, in which the liberation of each and every citizen in India, including children, was the paramount objective. This goal of extricating children from the world of oppression and exploitation was seen as an important and achievable aim requiring actualisation through law, policy, investment and community mobilisation. Over time, however, the issue of the child facing oppression and adversity has not captured the imagination of those in power and authority. Societal concerns drifted away from the child’s well being and the interests and rights of children were not seen as integral to the nation building tasks of development and democracy in India.

 

Status of Children - Daily Lives 

After more than 60 years of independence it has been found that there are still many gaps in children having their access to all their entitlements. Contemporary times have intensified the dangers to childhood and have been extraordinarily harsh to many children in our country. More and more children are vulnerable and marginalised today. Having no food to eat, and little or no health support, they live precariously,  experiencing hunger daily and suffering malnourishment, their lives claimed tragically by infant and child mortality. Older children are being trafficked and are working as migrant child labour, usually away from their homes. Children travel long distances across States. Networks for trafficking children exist from one end of the country to another, from Manipur to Chennai, Bihar to Punjab, Kerala, Rajasthan, Orissa to Mumbai and Gujarat. On their way to work and even in the work places, it is an undisputed fact that children are subject to abuse, torture and gross exploitation. Even children, who remain in their own communities and are at work, are victims of cruel market forces and lack access to State services and protective schemes. Child marriage, child trafficking and discrimination against girls remain crucial challenges. There is a growing number of children being affected and infected with HIV and AIDS, displacement due to natural disasters and civil unrest representing a new generation, of hazards a child faces in this country.  

We witness a deficit in childhood in every respect having a profound impact on children. Having no access to basic nutritional and health entitlements they grow up stunted, malnourished and live precariously. Being deprived of education, they lack in confidence and self-esteem. They are trapped in the labour pool in the informal sector performing jobs that are repetitive, monotonous with no possibility of any other mobility, or opportunities that can give them dignity. Their options in market and employment are only on a casual basis as a daily worker, migrant labourer or as bonded labourers.

 

Principles of Child Centric Policies and Laws 

Based on its experience, the National Commission for Protection of Child Rights (NCPCR) has evolved an understanding of the core principles that have to be adhered to in formulating policies and delivering services, adjudication of justice for children, as well as making legislations for children. Thus, for example, five essential management principles, viz. decentralisation, flexibility, institution building processes, convergence and listening to children and their voices should inform and guide formulation of policies and delivering of services. This would enable ownership by the gram panchayats and the community of the programme to protect children and where they would be involved in addressing the needs of each and every child. It would also entail solutions to the problem based on local context and dealing with the matter with a sense of urgency. Therefore a rigid centrally sponsored scheme with directions from an approved budget line may not always be a suitable solution. All actions are to be institutionalised and taken up in a predicable manner and not in an ad hoc fashion. Also, considering that entitlements to health, nutrition, education and so on are mutually interdependent it is necessary that the concerned departments do not function in silos but converge their plans and services at least at the level of block and district. 

Even regarding the process of rendering of justice to children there is a need for special measures at every stage of adjudication that deals with child victims and witnesses, i.e., children in contact with law and children in need of care and protection. This would require the introduction of child jurisprudence, a child focused procedure code, a well trained cadre of the judiciary on child rights, and adequate space and opportunity for children to seek justice under humane and ‘child friendly’ circumstances. Children are to remain protected and not further victimised where maintenance of dignity, privacy and safety of the child shall be of central concern at every stage of adjudication. Child centered jurisprudence should also provide for reformative and restitutive justice. 

All legislations for protection of child rights have to take categorical and unambiguous position on children’s rights, ensuring State commitment and obligation to provide all structures, institutions and processes form delivering services to children. The legislations are to adhere to principles of universality as against targeting equity and social justice to cover all children up to 18 years of age. Special provisions for affirmative action for the disadvantaged children are to be included in all legislations, in the framework of rights and universal coverage. Many of these principles that are based on rights based perspective have been incorporated in some of the recent legislations such as the right to education act or the act to protect children from sexual offences.

 

Right of Children to Free and Compulsory Education Act 2009 RTE Act) 

 Thus after the enactment of RTE Act, education is now guaranteed as a fundamental right for all children in the 6-14 years age group up to the elementary school level (class 8). By making it mandatory for the State to ‘ensure compulsory admission, attendance, and completion of elementary education by every child of 6-14 years by implication, the State is violating the law if any child is out of school, or is a school dropout’. According to the Act free education means that no financial constraints can prevent a child from completing elementary education. In other words if a child lives in a remote area, the provision of free transportation (or residential facility or some other facility) will be part of the child’s entitlement to education. Such entitlements include special aids for children with disabilities.  

The RTE Act also seeks to remedy the structural deficiencies that have pushed children out of schools. The Act now mandates the provisioning of infrastructure facilities to address the situation of government schools which are currently bursting at their seams with overcrowded classrooms. It guarantees qualified teachers at a teacher pupil ratio (TPR) of 1: 30 at primary school and 1:35 at an upper primary school level. For all those older children who are out of school, the Act mandates that there is a special training by the schools to integrate them into an age appropriate class. Further they could be admitted at any time during an academic session without producing documents of birth certificate, transfer certificate and the like. It explicitly addresses discrimination on the basis of caste, gender, disability, ill-health and other grounds, providing that ‘no child shall be subjected to physical punishment or mental harassment’. The Act also promotes a child friendly pedagogy.

 

Protection of Children from Sexual Offences Act, 2012 

The newly enacted ‘Protection of Children from Sexual Offences Act, 2012’ has several features that are child centred. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include: recording the statement of the child at the residence of the child or at the place of his/her choice, preferably by a woman police officer; non detention of children in the police station in the night for any reason; police officer not to be in uniform while recording the statement of the child and the statement of the child to be recorded as spoken by the child where a child could be provided assistance of an interpreter or translator or an expert as per the need of the child. Even the medical examination of the child is to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence. The Act provides for the establishment of Special Courts for trial of offences under the Act, where the trial is conducted either in camera or through video and, the child is protected from facing the accused.  

For speedy trial, the Act provides for the evidence of the child to recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible. There are to be frequent breaks for the child during trial and child is not to be called repeatedly to testify. The child is not to be seeing the accused during the process of trial and there can be in-camera trial of cases. For the more heinous offences of penetrative sexual assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. There are also measures for relief and rehabilitation of the child for care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child. The best interest of the child is of paramount importance at every stage of the judicial process.  

Under the RTE Act as well as the sexual offences Act, the National Commission for Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Acts. 

 

Child Rights perspective in Policies and Programmes  

The principle of universality and a sense of urgency is being adhered to in all interim orders issued by the Supreme Court, its directives for providing services to combat hunger and malnourishment in “PUCL vs. Union of India and Others, Writ Petition (Civil) 196 of 2001” that sought legal enforcement of right to food. It is hoped that the restructured Integrated Child Development Scheme (ICDS) programme would incorporate all the gains made in the litigation such as anganwadi centres in every habitation and on demand, hot cooked meals, and a midday meal programme. The ICDS hopefully would now entail greater decentralisation, giving better physical infrastructure, additional anganwadi workers, greater role for community and local bodies and more investments. This, in turn, would shift the trend of hunger and malnourishment, to correcting the health and nutrition deficit of children in India. The Integrated Child Protection Scheme (ICPS) is being rolled out in all States and the districts and this holds a promise of offering universal coverage of protective measures for children in difficult circumstances, as well as to reduce the risks and vulnerabilities children have in various situations and actions that lead to abuse, neglect, exploitation, abandonment and separation of children. It is envisaged that there are institutional arrangements through the ICPS up to the level of the village to foster coordination of services through various departments as well as the juvenile justice system. Hopefully every child is tracked and incidences of child labour and child trafficking would come to a halt due to the ICPS. The challenge is in deepening the services and building a public awareness on the institutions and facilities available to children.

 

It can be said that since the last decade one is witness to a change in the perspective on children with a visible shift from an APPROACH of charity to that of rendering justice to children by guaranteeing their rights. There is a need for a ground swell of support and an enabling environment for an effective implementation of such laws and policies.  

Shantha Sinha,  is Chairperson, National Commission for Children's Protection & Child Rights, New Delhi.