India is a party to the UN declaration on the Rights of the Child 1959. Accordingly, it adopted a National Policy on Children in 1974. The policy reaffirmed the constitutional provisions for adequate services to children, both before and after birth and through the period of growth to ensure their full physical, mental and social development.
Accordingly, the government is taking action to review the national and state legislation and bring it in line with the provisions of the Convention. It has also developed appropriate monitoring procedures to assess progress in implementing the Convention-involving various stake holders in the society.
India is also a signatory to the World Declaration on the Survival, Protection and Development of Children. In pursuance of the commitment made at the World Summit, the Department of Women and Child Development under the Ministry of Human Resource Development has formulated a National Plan of Action for Children. Most of the recommendations of the World Summit Action Plan are reflected in India’s National Plan of Action- keeping in mind the needs, rights and aspirations of 300 million children in the country.
The priority areas in the Plan are health, nutrition, education, water, sanitation and environment. The Plan gives special consideration to children in difficult circumstances and aims at providing a framework, for actualization of the objectives of the Convention in the Indian context.
As minors by law children do not have autonomy or the right to make decisions on their own for themselves in any known jurisdiction of the world. Instead their adult caregivers, including parents, social workers, teachers, youth workers and others, are vested with that authority, depending on the circumstances. Some believe that this state of affairs gives children insufficient control over their own lives and causes them to be vulnerable.
Before we ponder upon the concept of the rights of the children, we need to know the definition of the term ‘child’ which The Convention of the Rights of the Child defines 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. Children’s rights are defined in numerous ways, including a wide spectrum of civil, cultural, economic, social and political rights. Children’s rights are the human rights of children with particular attention to the rights of special protection and care afforded to the young, including their right to association with both biological parents, human identity as well as the basic needs for food, universal state-paid education, health care and criminal laws appropriate for the age and development of the child. (1) Interpretations of children’s rights range from allowing children the capacity for autonomous action to the enforcement of children being physically, mentally and emotionally free from abuse, though what constitutes “abuse” is a matter of debate. Other definitions include the rights to care and nurturing. (2)
Basic Rights of Children in India:
The right to Education and Cultural Development: 50% of Indian children aged 6-18 do not go to school; Dropout rates increase alarmingly in class III to V, its 50% for boys, 58% for girls. Every child has the right to development that lets the child explore her/his full potential. Unfavourable living conditions of underprivileged children prevent them from growing in a free and uninhibited way.
The right to Expression and Thought: Every child has a right to express himself freely in whichever way he likes. Majority of children however are exploited by their elders and not allowed to express.
The right to Information and Participation: Every child has a right to know his basic rights and his position in the society. High incidence of illiteracy and ignorance among the deprived and underprivileged children prevents them from having access to information about them and their society.
The right to Nutrition: More than 50% of India’s children are malnourished. While one in every five adolescent boys is malnourished, one in every two girls in India is undernourished.
The right to Health & Care: 58% of India’s children below the age of 2 years are not fully vaccinated. And 24% of these children do not receive any form of vaccination. Over 60% of children in India are anemic. 95 in every 1000 children born in India, do not see their fifth birthday. 70 in every 1000 children born in India, do not see their first birthday.
Right to protection from harm:
The right to protection from Abuse: There are approximately 2 million child commercial sex workers between the age of 5 and 15 years and about 3.3 million between 15 and 18 years. They form 40% of the total population of commercial sex workers in India. 500,000 children are forced into this trade every year.
The right to protection from Exploitation: 17 million children in India work as per official estimates. A study found that children were sent to work by compulsion and not by choice, mostly by parents, but with recruiter playing a crucial role in influencing decision. When working outside the family, children put in an average of 21 hours of labour per week. Poor and bonded families often “sell” their children to contractors who promise lucrative jobs in the cities and the children end up being employed in brothels, hotels and domestic work. Many run away and find a life on the streets.
The right to protection from Neglect: Every child has a right to lead a well protected and secure life away from neglect. However, children working under exploitative and inhuman conditions get neglected badly.
The right to Recreation: Every child has a right to spend some time on recreational pursuits like sports, entertainment and hobbies to explore and develop. Majority of poor children in India do not get time to spend on recreational activities.
The right to Name, Identity & Nationality: Every child has a right to identify himself with a nation. A vast majority of underprivileged children in India are treated like commodities and exported to other countries as labour or prostitutes.
The right to Survival: Of the 12 million girls born in India, 3 million do not see their fifteenth birthday, and a million of them are unable to survive even their first birthday. Every sixth girl child’s death is due to gender discrimination.
Rights of the Children Guaranteed by the Indian Constitution and Statutes:
The Constitution of India guarantees all children certain rights, which have been specially included for them. These include:
1. Right to free and compulsory elementary education for all children in the 6-14 years of age group (Article 21-A).
2. Right to be protected from any hazardous employment till the age of 14 years (Article 24).
3. Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age or strength (Article 39(e)).
4. Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment (Article 39 (f)).
Besides these they also have rights as equal citizens of India, just as any other adult male or female:
- Right to equality (Article 14).
- Right against discrimination (Article 15).
- Right to personal liberty and due process of law (Article 21).
- Right to being protected from being trafficked and forced into bonded labour (Article 23).
- Right of weaker sections of the people to be protected from social injustice and all forms of exploitation (Article 46).
Despite Constitutional guarantees of opportunity and civil rights, millions of children face wide-spread deprivation and discrimination. The Constitution of India provides a comprehensive understanding of child rights. A fairly comprehensive legal regime exists for their implementation. India is also a 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). 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.
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 stigmatized and treated as ‘illegitimate’, both by society and law.
Recognizing 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 organizations 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. The other legislations pertaining to child labour are:
- Children [Pledging of Labour] Act (1933)
- Employment of Children Act (1938)
- The Bombay Shop and Establishments Act (1948)
- Child Labour -Prohibition and Regulation Act
- The Indian Factories Act (1948)
- Plantations Labour Act (1951)
- The Mines Act (1952)
- Merchant Shipping Act (1958)
- The Apprentice Act (1961)
- The Motor Transport Workers Act (1961)
- The Atomic Energy Act (1962)
- Bidi and Cigar Workers (Condition of Employment) Act (1966)
- State Shops and Establishments Act
Children’s Status in India:
Despite all such constitutional and legal guarantees 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 super cyclone 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 focused on the needs of children. There was very little information on where the children were, where they were going, or being taken.
Millions of Indian children are equally deprived of their rights to survival, health, nutrition, education and safe drinking water. It is reported that 63 per cent of them go to bed hungry and 53 per cent suffer from chronic malnutrition.
Almost 147 million children live in kuchcha houses, 77 million do not use drinking water from a tap, 85 million are not being immunized, 27 million are severely underweight and 33 million have never been to school. It estimates that 72 million children in India between five and 14 years do not have access to basic education. Even in the era of 21st century, a girl child is the worst victim as she is often neglected and is discriminated against because of the preference for a boy child. (3)
India harbours 19 per cent of world’s child population and almost 42 % of total population (1100 million) is children. And yet total expenditure on children in health, education, development and protection together is only 4.9 % of India’s total budget outlet. However, several million children slog for their survival and it is estimated that children below 15 years constitute nearly 35 % of India’s labour force. They are force to do hard work, are often deprived of food and rest and work conditions are often unhealthy and unsafe. Push factors include acute poverty among Dalits and tribals, societal view of down looking their children, lack of schools, infrastructure, absence of teachers and above all no law enforcement. According to International Labour Organization (ILO) there is a large child labour force in India than anywhere else in the world. Official Indian statistics put the total number of child workers at 11 million full times and 10 million part times. Unofficial figures vary between 55 million to 90 million. A Child Labour Act was introduced in 1986, which bans children less than 14 years of age from being hired for any labour. The worst sufferer among working children are those who are employed for household work and commonly referred as child domestic workers (CDWs). For a long time the official agencies responsible for protection of children denied their existence. But due to constant campaign by the NGOs supported by international agencies (such as Misereor, Bread for the World, Christian Aid, Oxfam, CIDA, Novib, Caritas, CRS, DANIDA etc.) now the Government has banned employment of children below 14 years as domestic help from 10th October 2006.It is said that in Metropolitan cities like Mumbai, Kolkata, Delhi and Chennai majority of domestic help are children particularly girls below 14 years. (4)
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.
Access to Healthy Living Standard vis-a-vis Health of Children:
The health of our children continues to be a matter of grave concern, especially in the wake of growing privatization 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, ostracized 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.
Children’s Education – Far From Reality:
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’.
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 marginalized children.
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.
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.
Protection of Rights of Children with Disability:
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 recognized with the enactment of the Persons With Disabilities (Equal Protection of Rights and Full Participation) Act, 1995.
Child Trafficking – A Challenge in the way of fortification of child rights:
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. Though there is an Immoral Traffic Prevention Act it only refers to trafficking for prostitution hence does not provide comprehensive protection for children. Nor does the Act provide clear definition of “trafficking”.
In international circle commonly followed definition is that of United Nations Commission on Human Rights which says ” Trafficking in persons means the recruitment, transportation, purchase sale, transfer, harbouring or receipt of person by threat or use of violence, abduction, force deception or coercion (including the abuse of authority) or debt bondage, for the purpose of placing or holding such person, whether for pay or not, in forced labour or slavery like practices, in a community other than the one in which such person lived at the time of original act described.”
India has also not ratified The Palemo Protocol, which provides protection to children against trafficking. It is estimated that 200,000 persons are trafficked in India every year. Only 10 % of human trafficking in India is international, while almost 90 % is interstate. Nearly 40,000 children are abducted every year of which 11000 remain untraced according to a report by the National Human Rights Commission of India.(5)
Organ trafficking or sexual abuse accounting for the disappearance of 38 children from Nithari, UP in 2008 points out this is the high time to take stock of the alarming rate of child trafficking in India.
Child Marriage – A threat to protection child rights:
In many parts of the world parents encourage the marriage of their daughters while they are still children in hopes that the marriage will benefit the children both financially and socially and relieve financial burdens on the family. In actuality, child marriage is a violation of human rights, compromising girls’ development and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty. Closely related to the issue of child marriage is the age at which girls become sexually active. Women who are married before the age of 18 tend to have more children than those who marry later in life. 97 per cent of women surveyed in India in 1992–1993 did not use any contraception before their first child was born. Pregnancy-related deaths are known to be a leading cause of mortality for both married and unmarried girls between the ages of 15 and 19, particularly among the youngest of this cohort. 75 per cent of people living with HIV/AIDS are married. In fact, the demand to reproduce and the stigma associated with safe-sex practices lead to very low condom use among married couples worldwide, and heterosexual married women who report monogamous sexual relationships with their husbands are increasingly becoming a high-risk group for HIV/AIDS. (6)
The One-Stop Solution to Violation of Child Rights – Child Adoption:
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.
National Commission for Protection of Child Rights – A positive footstep:
In order to ensure child rights practices and in response to India’s commitment to UN declaration to this effect, the government of India set up a National Commission for Protection of Child Rights.
The Commission is a statutory body notified under an Act of the Parliament on December 29, 2006. Besides the chairperson, it will have six members from the fields of child health, education, childcare and development, juvenile justice, children with disabilities, elimination of child labour, child psychology or sociology and laws relating to children.
The Commission has the power to inquire into complaints and take suo motu notice of matters relating to deprivation of child’s rights and non-implementation of laws providing for protection and development of children among other things.
Aimed at examining and reviewing the safeguards provided by the law to protect child rights, the Commission will recommend measures for their effective implementation. It will suggest amendments, if needed, and look into complaints or take suo motu notice of cases of violation of the constitutional and legal rights of children.
The Commission is to ensure proper enforcement of child rights and effective implementation of laws and programmes relating to children- enquiring into complaints and take suo motu cognizance of matters relating to deprivation of child rights; non-implementation of laws providing for protection and development of children and non-compliance of policy decisions, guidelines or instructions aimed at their welfare and announcing relief for children and issuing remedial measures to the state governments.
India has the largest number of children employed than any other country in the world. According to the statistics provided by The Government of India around 90 million out of 179 million children in the six to 14 age group do not go to school and are engaged in some occupation or other. This means that close to 50 per cent of children are deprived of their right to a free and happy childhood. Eighty per cent of the children work in hazardous conditions.
Unofficially, this figure exceeds 100 million but the fact that a large number of these children work without wages in fields or in cottages alongside their parents, unreported by census, makes it very difficult to estimate accurately. However, it is estimated that if these working children constituted a country, it would be the 11th largest country in the world.
A large number of children work in cottage industries producing carpets, matches, firecrackers, bidis, brassware, diamond, glass, hosiery, hand loomed cloth, embroidery, leather goods, plastic, bangles and sporting goods. The highest number of children are found working in the agricultural sector.
Poverty has often been cited as the reason for the child labour problem in India. While it is true that the poorest, most disadvantaged sectors of Indian society supply the vast majority of child labourers, child labour actually creates an perpetuates poverty as it displaces adults from their jobs and also condemns the child to a life of unskilled badly paid work.
Merely passing laws is obviously not the solution, as they need to be enforced, in which our country has a poor track record. One can attribute the violation of child rights to various factors — unemployment, low wages, poor standards of living, ignorance and illiteracy, social attitudes, and the like. Together they culminate in poverty and exploitation. The poor would rather have children who work to supplement the income. There are many cases where the parents sell their children as bonded labour for a petty sum of money. Banning child labour therefore is not the solution, nor is the step by the U.S. and Europe to ban carpets from India.
Ignorance is one of the main problems; ignorance on the part of the parents who believe that with the children working, poverty will be eradicated; and ignorance on the part of the children who do not know their rights in this country. The working conditions of the children are inhuman and the incomes given are also meager.
The Supreme Court ruling of December 10, 1996, in an attempt to fill the loopholes left in previous legislations and to bring in judicial activism to social issues ordered the setting up of a fund for the child workers aimed at controlling and eventually eliminating child labour across the length and breadth of the entire country. While setting out a long list of child labour monitoring obligations of the State Governments, it also prescribes heavy fines for employers caught with children at work. In addition, India has ratified the UN Convention on the Rights of the Child.
The efforts are required to get children as well as the adult mass of India aware and educated with respect to rights of every child in order to mitigate and eventually eradicate the peril of child right violation.