The Hindu : The rights of children

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Tuesday, May 14, 2002

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The rights of children

By V.S. Mani

The Rights of the Child Committee has underscored the need to review Indian legislation to bring about uniformity in the definition of a child (the age limit).

ON THE eve of the U.N.General Assembly's recent Special Session (from May 8 to 10) on Children, the Secretary-General remarked: "It is sometimes said that at United Nations conferences goals are ever set but never met. This report refutes that assertion" with facts and figures. While on matters such as human welfare, one must doctrinally be a chronic optimist. But one wonders if this view of the Secretary-General, like those of many Governments the world over (including the Indian Government), is not too overly generous, particularly in respect of the children of the developing world.

A typical progress report of the Government of India, or for that matter of most Governments to international bodies, would of course highlight the contribution made by the country in the evolution/ratification of the 1989 Rights of the Child Convention, the efforts made in wide dissemination of the convention, follow-up action taken after the 1990 World Summit for Children in terms of announcement of official plans and policies, references to the provisions of the Constitution and the various legislative enactments, a number of graphs and maps to show that improvements have taken place on tackling various issues of child welfare, and problems and challenges in solving them. The India Report on the World Summit for Children, 2000, does all this quite elegantly.

The report points out in a foreword: "India's population reached the one billion mark in May 2000. India has the largest child population in the world, estimated at more than 380 million below the age of 18 years." This alone brings home the need for stupendous efforts at tackling the monumental problem of child welfare. The problem areas focussed in the report include the issues of child survival and health, nutrition and food security, status of girls and women, family care and institutional protection, education, children under especially difficult circumstances, impact of terrorism on children, prevention of degradation of the environment and poverty.

India became a party to the 1989 Convention on the Rights of the Child on January 11, 1993. While acceding to the treaty, it also entered a Declaration: "While fully subscribing to the objectives and purposes of the Convention, realising that certain of the rights of the child, namely those pertaining to the economic, social and cultural rights can only be progressively implemented in the developing countries, subject to the extent of available resources and within the framework of international cooperation; recognising that the child has to be protected from exploitation of all forms including economic exploitation; noting that for several reasons children of different ages do work in India; having prescribed minimum ages for employment in hazardous occupations and in certain other areas; having made regulatory provisions regarding hours and conditions of employment; and being aware that it is not practicable immediately to prescribe minimum ages for admission to each and every area of employment in India — the Government of India undertakes to take measures to progressively implement the provisions of Article 32 (on the rights of the child to be protected from economic exploitation), particularly paragraph 2(a) (on minimum age or ages for admissions to employment), in accordance with its national legislation and relevant international instruments to which it is a state party." The excessive verbosity of this Declaration has the clear advantage of emphasising the freedom of India to take its own time to realise the economic, social and cultural rights of the child, including freedom from economic exploitation. However, under the Indian legal system, it is for the Supreme Court to decide how much of these rights are essential for the right to life and personal liberty under Article 21 of the Constitution, and to that extent this declaration is ineffective within the country. Further, trafficking in human beings and forced labour are prohibited under Article 23 of the Constitution. Small wonder, the Rights of the Child Committee itself asked India in its recommendations of 2000 to withdraw its Declaration in respect of Article 32 of the Convention.

India's first mandatory report to the Rights of the Child Committee was due on January 10, 1995, but was made only on March 19, 1997. The Committee noted some of the positive as well as negative points in respect of the Indian Report. It was impressed by the existence of a broad range of constitutional and legislative provisions and institutions in India. It appreciated the role played by the Judiciary in making frequent references to the provisions of the international human rights instruments, the growing role of NGOs. It was sensitive to the enormity of the child welfare problems faced by India, highlights of which are population growth, extreme poverty, illiteracy, impact of structural adjustment and natural disasters, and traditional customs and societal attitudes.

Among the minus points, the Committee noted "the unclear status of the Convention (on the Rights of the Child) in the domestic legal framework and is concerned about the insufficient steps taken to bring existing federal, state and personal status laws into full conformity with the Convention". It, in fact, asked India to adopt "a code for children". It also stressed the importance of "effective implementation of existing legislation" and suggested further strengthening of the "capacity and effectiveness" of national human rights institutions. The Committee underscored the need to review Indian legislation to bring about uniformity in the definition of a child (the age limit). It was concerned that different Indian laws defined this differently. It recommended better coordination of action at various levels and empowerment of local authorities. It was "concerned at the absence of an effective mechanism to collect and analyse disaggregated data of all persons under 18 years for all areas covered by the Convention, including the most vulnerable groups."

The Committee was "deeply concerned" at the social inequalities resulting in "the widely disparate levels of enjoyment of the rights in the Convention". It also expressed concern at the "numerous reports" of violations of civil rights and freedoms of children, and suggested that amendments be made to Section 53 of the CrPC (for mandatory medical examination), Section 197 of the CrPC (to eliminate of the need for Government approval of prosecution for custodial abuse), and Section 43 of the Police Act (to eliminate police immunity). With all these comments by an international body monitoring child rights, it is high time we revised the 1974 National Policy for Children, take follow-up action based on the above recommendations, and bring into being the things that are "on the anvil", namely, a National Commission for Children, a National Charter for Children, a New Juvenile Justice Act, and Sarva Shiksha Abhiyaan (Education for All campaign).

(The writer teaches International Law at JNU, New Delhi.)

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