Protection of Child Rights in India: An Uncertain Future [1, 1 ed.] 9789383158935

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Protection of Child Rights in India An Uncertain Future

Protection of Child Rights in India An Uncertain Future

Editors

Dr. Ranjeeta Mukherjee Dr. Sumant Kumar

S.K. Book Agency New Delhi - 110002

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Protection of Child Rights in India: An Uncertain Future

 Editors

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First edition: 2017 ISBN No 978-93-8315-893-5 PRINTED IN INDIA Printed at: New Delhi

Preface

Across the world the people are striving for justice and their efforts are often directed towards the children who are the most vulnerable in the society, often they are dumped, don’t get a opportunity to step in a school, sometimes are left to fend for themselves on the streets, subjected to many a forms of violence and cruel and inhumane treatments every day. They are children – who are deprived of their rights. In the history of human rights, the rights of children are the most ratified. The United Nations Convention on the Rights of the Child (UNCRC) defines Child Rights as the minimum entitlements and freedoms that should be afforded to every citizen below the age of 18 regardless of race, national origin, colour, gender, language, religion, opinions, origin, wealth, birth status, disability, or other characteristics. But still the offences against children are rising and in spite of plethora of development both at international and national legal regime, their rights and protection have been at loggerheads. Children are the builders of every nation and the future of every nation depends upon the status of the child. If children are deprived of their childhood the nation gets disadvantage of potential human resources for its progress, economic development, social stability and matured population. This book is an effort to bring forth and discuss the various issues and challenges relating to rights of the children from the socio legal perspective. This book is a collection of ten essays and each discern into the issue with a fresh and different outlook.

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Protection of Child Rights in India: An Uncertain Future

The principle of protection of human rights is one of the most important concept that was introduced to protect every single human being, regardless of gender, sex, nationality, sexual orientation and other differences. It is based on human dignity that no one can take away from others. It means that every man has right to equality. Since education is that basic right of children without which a nation cannot be developed in real sense thus, in the very first chapter titled “Human Rights of the Children in Rural Areas with special reference to Right to Education: Issues and Challenges”, Dr. Ragini Khubalkar has tried to analyze the education as an indicator in assessing human rights which could in turn facilitate the implementation and attainment of the objective associated with realization of human rights. This chapter is followed by the chapter the title “Child Trafficking In India: Issues and Challenges,” in which Dr. Afkar Ahmad, endeavours to highlight upon the factors behind trafficking, the crucial role played by legislature & judiciary. Right to life with dignity is considered as one of the most essential element of human rights and trafficking of children is one of the worst form of violation, in the second chapter bearing The chapter further tries to discuss the contribution of government of India towards eradication of trafficking of children. Effort has also been made by the author to support his findings through the data provided by National Crime Records Bureau with valuable suggestions. In the next chapter titled “Unpaid, Unacknowledged and Invisible: Child Labour in Rural India”, Dr. Madhukar Sharma has given an overview over the paramount challenge for a developing country like India i.e., the rural child labour, effort has been made with special emphasis over child labour in rural areas, to concentrate over how and why a child worker is a hidden worker and this workforce is often an unpaid, unacknowledged and invisible workforce in India. Right are the legal tools to ensure all round development of human being be it an adult or a child for that matter. In spite of plethora of development at international and national arena towards child rights their rights and protection has been at loggerheads. Priya Vijay in her article titled “Anomalies of Adoption Law and Child Rights in India”, tried to bring forth whether Adoption can serve as tool to take care and get rid of all possible misfortunes brought to a child by

Preface

vii

blessing her/him with a family and most probably a guarantee against all possible exploitation. In this chapter she has discussed about the shortcomings and technicalities of laws relating to adoption in India. In the fifth chapter bearing the title “Issues of Child Soldiers in India”, the authors Vijayendra Kumar Purohit and Megha Purohit have made an attempt to find out the reasons of children being recruited by the armed forces and the methods by which children are allured to such activities. Child pornography has always remained as a hush-hush topic in the Indian society. The social stigma associated with it makes the situation worse. Upasana Pandey and Debarpita Pande has made an endeavour to throw light on the rapid spread of child sexual abuse through child pornography in India and has critically analysed the various laws of this country which have been enacted in the past few years to check the spread of the same through their article titled “Child Pornography: A Socio Legal Perspective with a Special Focus on India” It is no less than a social disaster which is ruining the physiological as well as psychological condition of children throughout the globe and hence various international measures were instrumented to curb this which has been discussed by the authors in brief as these provisions have been instrumental in bringing about a change in the Indian legal scenario. This article mainly analyses the present situation in India with regard to child pornography and has also tried its best to establish the link between child pornography and child sex abuse. The chapter is being followed by the chapter authored by Diksha Dubey the broad theme of whose article is also child labour but with a different perspective. The title of the chapter is “Social Aspects of Child Labour in India”and here the author has made an attempt to offer a better interpretation of child labour. Further the sociological reasons for the existence of child labour are explained and sociological perspective has been used to study the policies of the government and to suggest such changes which can make the policies effective. The next chapter titled “Parental Expectation: An Intrusion to a Child’s Right to Life”, tries to make an introspection within the psycho legal aspect of a child development and protectiveness of the parents in the era of stress and

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Protection of Child Rights in India: An Uncertain Future

competition and how it is officious to the right to life of a child. The second last chapter revolves around another serious concern which is just not an offence within itself rather it is an offence which contains a bundles of offences within itself. Child begging is one of the heinous crimes as it includes; drugged, beaten, kidnapping, abduction, trafficking, chopping of organ and many more other criminal activity. Thus in this chapter bearing the title “Zero Tolerance’ on Child Begging: A Bitter Truth”, Dr. Sumant Kumar made an endeavour to find out the causes. Education is only means for India to bring about awareness among the population and slowly induce the national pride among the masses. As such India emphasised reconstruction of education system with innovation and expansion in the Education Policy since 1968, India has perceived education as fundamental right or ‘education for all’ leading to the enactment of the RTE. Thus in the last chapter titled “Education for All: Issues and Challenges for RTE in India”, the author Sopan Shinde tries to get through the factors that play their role in the arena at the grassroots and four major stakeholders i.e., schools (aided and unaided), parents, local administration and respective state governments who are pushing the ball in each other’s court rather than coming together and taking responsibility of executing the act effectively and bring forth the serious issues and challenges that need attention. Thus the collection examines a range of concerns ranging from “typical” problems with fresh outlook to the subjects though directly relevant to the issues concerning child. Dr. Ranjeeta Mukherjee Dr. Sumant Kumar

Contents

Preface .................................................................................................................. v List of Contributors ............................................................................................. xi List of Abbreviation ........................................................................................... xiii

1. Human Rights of the Children in Rural Areas with Special Reference to Right to Education: Issues and Challenges ................ 1 Ragini Khubalkar

2. Child Trafficking in India: Issues and Challenges ................................. 15 Afkar Ahmad

3. Unpaid, Unacknowledged and Invisible: Child Labour in Rural India .............................................................. 28 Madhukar Sharma 4. Anomalies of Adoption Law and Child Rights in India ........................... 38 Priya Vijay 5. Issue of Child Soldiers in India .................................................................. 47 Vijayendra Kumar Purohit & Megha Purohit

x Protection of Child Rights in India: An Uncertain Future

6. Child Pornography: A Socio Legal Perspective with a Special Focus on India ............................................................................................ 63 Upasana Pandey and Debarpita Pande 7. Social Aspects of Child Labour in India .................................................... 84 Diksha Dubey 8. Education for All: Issues and Challenges for RTE in India ................... 99 Sopan Shinde 9. Zero Tolerance’ on Child Begging: A Bitter Truth ................................. 110 Sumant Kumar 10. Parental Expectation: An Intrusion to a Child’s Right to Life .......... 123 Ranjeeta Mukherjee

Index ................................................................................................................. 137

About the Contributor

Dr. Madhukar Sharma Assistant Professor Maharashtra National Law University Nagpur, Maharashtra Dr. Ranjeeta Mukherjee Assistant Professor Centre for Tribal and Customary Law Central University of Jharkhand Ranchi, Jharkhand Priya Vijay Assistant Professor, National Law University Ranchi, Jharkhand Dr. Afkar Ahmad Assistant Professor National Law University Ranchi, Jharkhand Dr. Ragini Khubalkar Assistant Professor of Law Maharashtra National Law University Nagpur, Maharashtra

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Protection of Child Rights in India: An Uncertain Future

Dr. Sumant Kumar Assistant Professor Centre for Tribal and Customary Law Central University of Jharkhand Ranchi, Jharkhand Vijayendra Kumar Purohit Lecturer, Government Higher Secondary School No. 2 Niwari, Madhya Pradesh Sopan Shinde Assistant Professor Maharashtra National Law University Nagpur, Maharashtra Megha Purohit Law Student, National Law School of India University Bangalore Upasana Pandey Law Student National Law University Odisha Cuttack, Odisha Debarpita Pande Law Student Maharashtra National Law University Nagpur, Maharashtra Diksha Dubey Law Student Maharashtra National Law University Nagpur, Maharashtra

List of Abbreviations

AIR

:

All India Report

DPSP

:

Directive Principle of State Policy

ILO

:

International Labour Organisation

IPC

:

Indian Penal Code

IT Act

:

The Information Technology Act

ITPA

:

The Immoral Traffic (Prevention) Act

MDG

:

Millennium Development Goals

NCLP

:

National Child Labour Project

NCRB

:

National Crime Records Bureau

NUEPA

:

National University of Educational Planning and Administration

POCSO

:

The Protection of Children from Sexual Offences Act

RTE

:

Right to Education Act

SC

:

Supreme Court

SITA

:

The Suppression of Immoral Traffic in Women and Girls Act

UDHR

:

Universal Declaration of Human Rights

UOI

:

Union of India

UN

:

United Nation

xiv Protection of Child Rights in India: An Uncertain Future

UNCRC

:

United Nations Convention on the Rights of the Child

UNESCO :

United Nations Educational Scientific and Cultural Organisation

UNICEF :

United Nations Children’s Fund’s

UNSC

:

UN Security Council

URL

:

Uniform Resource Locators

Vs.

:

Versus

WP

:

Writ Petition

1

Human Rights of the Children in Rural Areas with Special Reference to Right to Education: Issues and Challenges Ragini Khubalkar

“Human Rights” means the rights relating to life, liberty, equality and dignity of an individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.1 Abstract Human rights are the rights which are inherent in all human beings. The idea that human being possesses certain inherent rights by virtue of the fact that they are human beings, owes its origin to natural law thinkers (John Locke). The principle of protection of human rights is one of the most important concept that was introduced to protect every single human being, regardless of gender, sex, nationality, sexual orientation and other differences. It is based on human dignity that no one can take away from others. It means that every man has right to equality.

1

Section 2(1) (d) of the Protection of Human Rights Act, 1993

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Protection of Child Rights in India: An Uncertain Future

Children are the builders of every nation. The future of every nation depends upon the status of the child. If children are deprived of their childhood the nation gets disadvantage of potential human resources for its progress, economic development, social stability and matured population. Education is that basic right of children without which a nation cannot be developed in real sense. In this paper, the author is trying to analyze the ‘education as an indicator in assessing human rights’. This indicator could in turn facilitate the implementation and attainment of the objective associated with realization of human rights.

Introduction Human rights are universal in nature. They are a sort of guarantee for protecting rights of individuals and groups against violation of fundamental freedoms without which human dignity cannot be maintained. As human beings, children are entitled to all the rights guaranteed by the Universal Declaration of Human Rights (UDHR) 1948. This is one amongst many International instruments, which are dealing with human rights of children. The purpose of education is development of personality of an individual as well as development of his mind so that the entire society develops. Education is the most important tool which can be used for the nation’s development. For bringing an intellectual social change, the education of every single individual is must. At the national and international level, the ‘right to education’ is given a lot of importance. The laws in force in India contain provisions for the right to education, but when it is a question of education in rural areas, there is a different picture in developing as well as underdeveloped countries. Majority of Indian population is scattered in villages and rural areas. Therefore it is necessary to consider the scenario at the rural level. Education is recognized as a human right in itself and also as an essential right. At International level, the ‘right to education’ has been upheld in various International Agreements and through Instruments2 2

Basu P. Justice ‘Law Relating to Protection of Human Rights Under the Indian Constitution and Allied Laws, Modern Law Publication, First Edition 2002.

Human Rights of the Children in Rural Areas 3

so also at the national level it is protected through the Indian Constitution and other statutes. Education is an instrument, which helps the individual to inculcate the practices which promote healthy living as well as the techniques to train his mind for developing fiscal skills. International Perspective At international level a private organisation, by name ‘The International Bureau of Education’, was established at Geneva in 1924 and which was further transformed into an ‘Inter-Governmental Organization’ in 1929 as an international coordinating centre for institutions concerned with education. A much broader approach was chosen, with the establishment of UNESCO in 1945. United Nations, on 10th December, 1948 adopted Universal Declaration of Human Rights. The Preamble to the UDHR stated that, “every individual and organ of society...., shall strive by teaching and education to promote respect for these rights and freedoms....” In accordance with the Preamble of UDHR, education should aim at promoting human rights by importing knowledge and skill among the people of the nation states3. It proclaims that: Everyone has a right to education4. The right to education has also been recognized by the International covenant on Economic, Social and Cultural Rights5. During the general discussion by the committee on Economic, Social and Cultural Rights on the right to education, an agreement was reached those four crucial elements. Foremost is that no one shall be denied a right to education ; Secondly, everyone is entitled to basic (primary) education in one form or another which includes basic education for adults. Primary education must be compulsory and free. No child be deprived from primary education. Thirdly, a state has an obligation to protect this right from being violated by third persons and fourthly the minorities have the right to be taught in

3

http://www.legalserviceindia.com/articles/edu_pes.htm accessed on 5/4/2017 Article 26 (1) of UDHR 5 Article 13 4

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Protection of Child Rights in India: An Uncertain Future

the language of their choice, in institutions outside the official system of public education6. The UNESCO has played an important role in protection of the right to education for everyone through various documents and conventions. National Perspective Education, however, must not be looked at from the narrow lens of merely being a method of learning alphabets, numbers, additions and subtractions alone. It encompasses a holistic programme that goes beyond the boundaries of formal learning and inculcates in child some good habits, manners and culture all of which go together to make him nurture into a responsible grown person. Clearly therefore education does not mean mere literacy. It is something much more and much powerful than that. In view of this the education can be valued/divided on the basis of quality and quantity. The quality education includes indicators like infrastructure that facilitates good formal learning plus an agenda that result into comprehensive development of child. On the other hand quantitative education simply covers universal access to education. It is in this background, while discussing the Constitutional provisions the author has also analysed the indicators provided under the Right to Education Act, 2009 in the rural context. Constitutional Provisions The importance and significance of the right of Indians to get education was well recognised as constitutional goal and while drafting the constitution it was placed under chapter IV Directive Principle of State Policy of the Constitution of India. Article 45 of the Constitution requires state to make provisions within 10 years for free and compulsory education for all children until they complete the age of 14 years. Further, Article 46 declares that the state shall promote with special care the educational and economic interests of the weaker sections of the people.

6

h t t p :/ / w w w. o h c h r. o rg / E N / Is s u e s / E d u c a t i o n / T r a i n in g / C o m p i la t i o n / P a g e s / d)GeneralCommentNo13Therighttoeducation(article13)(1999).aspx accessed on 5/4/17

Human Rights of the Children in Rural Areas 5

India presents a magnificent canvas to study the status of elementary education, which can be read out from the Preamble of the Constitution. It makes a verbal commitment to attaining Justice, Liberty and Equality. Even the Constitutional objectives on the face of it shows that education is a compulsive necessity for the manifestation of any of these goals. Besides, democracy has been defined to mean a government by dialogue and participation. Giving the children in India the right to education then means ensuring them a ‘participatory parity’ in the process of governance7. The Indian constitution has provisions to ensure that the state provides education to all its citizens. The Indian constitution contained ‘education’ as a state subject8. Under Article 42 of the Constitution, an amendment was added in 1976 and education became a ‘concurrent list subject’ which enables the central government to legislate in the manner suited to it. Besides India being a signatory to a number of international covenants i.e. Jomtien declaration, UNCRC, MDG goals, Dakar Declaration, SAARC SDG charter for children, it is a binding obligation to make education a reality for all children9. The Indian Constitution provides the Right to Education as a Fundamental Right by way of wider interpretation of Articles 21, 38, 39A, 41, 4510 and 51-A (k)11. Apart from these provisions, the Article 15, 17 and 46 also safeguard the educational interests of the weaker sections of the Indian Community, which are socially and educationally backward classes of citizens and scheduled castes and scheduled tribes. 7

Alston, Philip and Bhuta, Nehal, Human Rights and Public Go ods: Education as a Fundamental Right in India. Human Rights And Development: Towards Mutual Reinforcement, P. Alston, M. Robinson, eds., Oxford, Oxford University Press, 2005; NYU Law School, Public Law Research Paper No. 05-18; NYU Law School, CHRGJ Workin g P aper No. 6. file:SSRN %20R igh t% 2 0to%20 edu cation %20as% 20fundamental%20right.pdf accessed on 17/4/2017 8 Article 45 of the Constitution of India reads… 9 h t t p:/ / lib. oh ch r. org/ H R B odies/ U P R / D ocu m en t s / session 1 3 / IN / JS6_UPR_IND_S13_2012_JointSubmission6_E.pdf visited on 1/4/17visited on 1/4/17 10 Article 45 of the Directive Principles of State Policy that, “The state shall endeavour to provide within a period of ten years from the commencement of this Constitution, for free and compulsory Education for all children until they complete the age of fourteen years.” 11 Jain M.P. ‘Indian Constitutional Law’ fifth edition 2009,Butterworths Wadhw a Nagpur

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Protection of Child Rights in India: An Uncertain Future

Judicial Interventions The Supreme Court of India has played a very active role in safeguarding the ‘right to education’ and in some cases has even relaxed the doctrine of locus standi. In order to effectively protect the right to education, the court even entertained applications for constitutional protection on behalf of a wide range of subjects, individuals and even public spirited citizens. In the year 2002, the Constitutional amendment was introduced making education a fundamental right 12. The Right of Children to free and Compulsory Education Act, a law to enable the implementation of the fundamental right, was passed by Parliament nearly eight years after the Constitution was amended. The new law came into force from 1st April 2010, to provide free and compulsory education to all children in age group of 6-14 years13. The new law made it obligatory on the part of the state governments and local bodies to ensure that every child between ages 6 to 14 gets education in a school in the neighbourhood. Articles 14 of the Constitution of India specifically provide for protection of equality and ultimately deal with gender equality14. Though this is the position of law on the statute book, the reality is different in rural parts. There are various causes for low rate of child education which result into overall illiteracy which hampers the development of the nation15. It is aptly said that in the twenty first century, the potential of a nation to convert knowledge into wealth and social development through the process of innovation will determine its future. As such twenty first century is remarkably referred to as century of knowledge16. In the landmark judgment in the matter of Mohini Jain vs. State of Karnataka17, the Supreme Court held that right to education is fundamental right under Article 21 of the 12

http://www.gktoday.in/right-to-education-in-india/ accessed on 7/5/17. Article 21 A “the State shall provide free and compulsory education to all children of the age of six to fou rteen years in such manner as the State may, by law, determine”. 14 Jain M.P. ‘Indian Constitutional Law’, fifth edition 2009, Butterworth’s Wadhwa Nagpur. 15 Rao G. M. and Rao K.S. Legal Education In India – Challenges And Perspectives’ first edition 2007, Asia Law house, Hyderabad 16 http://www.legalserviceindia.com/articles/edu_pes.htm visited on 5/4/17 17 AIR 1989SC1858 13

Human Rights of the Children in Rural Areas 7

Constitution. It is held that the right to education springs from right to life. The Apex court has ruled that the right to life under Article 21 and the right to dignity of the individual cannot fully be appreciated without the enjoyment of right to education. The Court has observed that ‘Right to life’ is wider expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of human life. It extends to the full range of activities which an individual is free to pursue. The right to life under Article 21 and the dignity of the individual cannot be fully achieved unless it is accompanied by the right to education. The State Government is thus under an obligation to provide educational facilities at all levels to its citizens. Another benchmark judgment came in the matter of Unni Krishan vs. State of Andhra Pradesh18 , in which the Supreme Court was asked to examine the decision of Mohini Jain’s case; in this case the apex Court partly overruled the judgment in Mohini Jain case and held that the right to education is implicit in the right to life and personal liberty guaranteed by Article 21 and must be interpreted in the light of the Directive Principle of State Policy contained in Articles 41, 45 and 46. Further, in M.C. Mehta vs. State of Tamil Nadu19 the Supreme Court observed that, to allow proper development of the children, education should be made available to them, instead of employing them in hazardous works. In this regard the Court observed that, the government should formulate policies offering education so as to create balance of employment and education. Again in Bandhua Mukti Morcha vs. Union of India20, Justice K. Ramaswamy and Justice Sagir Ahmad observed that illiteracy has many adverse effects in a democracy governed by rule of law. Educated citizens could meaningfully exercise their political rights, discharge social responsibilities satisfactorily and develop spirit of tolerance and reform. In another landmark judgment , in the matter of Ashok Kumar Thakur vs. Union of India21 , the Apex Court has reiterated and held that the ‘Right to Education is a Fundamental Right’. 18

1993 AIR 2178, 1993 SCR (1) 594 1984 AIR 802, 1984 SCR (2) 67 20 (1984) 3 SCC 161 21 (2008) 6 SCC 1 19

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Protection of Child Rights in India: An Uncertain Future

Education is recognized both a human right in itself and an indispensable right. At International level the ‘right to education’ has been upheld in various International Agreements22 and through Instruments and at the national level it is protected through the Indian Constitution and other statutes. Analysis of data related to RTE Act Child Rights Information Network is required to updated information (data) collected through research and investigation so as to provide that information to states so that they may fulfill their commitment to the United Nations Convention on the Rights of the Child (UNCRC).The author has based her research on the basis of data collected by DISE23. In India the literacy rate in percentage in 1951 was 18.3; in 2001 it has raised to 64.8 and in 2011 it was raised up to 7324. It is estimated that for every 100 girls that enroll in school in rural India, only 40 will reach to Class IV, 18 will reach to Class IX and only one will make it to class XII. The data thus puts forth the ground realities. In the year 2009, the parliament enacted the most important Right to Education Act (referred to as RTE). RTE Act, 2009 aims to ensure that the right to education converts into reality. Amongst other issues, the Act provides for various norms which each school should have with all other facilities. 22

Polak Basu ‘Law Relating to Protection of Human Rights under the Indian Constitution and Allied Laws’ First Edition 2002, Modern Law Publication, 23 National University of Educational Planning and Administration (NUEPA), New Delhi started a pilot project for revitalization of educational statistics in India during 1995 with financial assistance from UNICEF. NUEPA prepared a system called “District Information System for Education (DISE)” to collect annual information of eight years of schooling from all schools. DISE is a computerized information system which is user friendly and menu-driven software with emphasis on report module. This system provides provide core data on school location, management, infrastructure, teachers, incentives, medium of instruction etc. Initially in Maharashtra this system was started in five districts during 1995-96 and gradually number of districts increased and since 2003-04 all districts of the state are covered. Available at file:// Edu cation% 20policy%2 0% 20P ROFILE %20Maharashtra-2011-12.pdf visited on 12/4/17 24 Mhrd.gov.in/Statistupload files/mhrd/files/statistics/ESG2016_O.pdf accessed on 12/4/ 17

Human Rights of the Children in Rural Areas 9

It is significant to note that the ‘availability of facility’ means: (i) Building: Pucca/Kuchha building owned by schools or on rented building. (ii) Head Maser Room: A designated room for head master for office cum store (iii) Classroom for each teacher: School should have classroom for each teacher. (iv) Ramp: Constructed in the school to facilitate the movement of special children. (v) Separate toilets for boys: Toilets are to be constructed for use of boys only. (vi) Separate toilets for girls: Toilets are constructed for use of girls only. (vii) Drinking water: The major source of drinking water facility used frequently by the school either hand pump, or Well, or Tap water or other. (viii) Kitchen shed: Constructed in the school for mid-day meal and it should be designated and separate room for cooking. (ix) Boundary wall: School having any type of boundary wall e.g. pucca, barbed wire fencing, hedges or any others. (x) Play ground: A proper playground is maintained by school.25 The mention of these subheadings in the Act demonstrates the effort on the part of the government to ensure that the education is imparted in a school with full infrastructure. If we take the State of Maharashtra as an illustration for the implementation of RTE Act, the following data is available. There are 22 districts in the State of Maharashtra as per 20112012 records. Amongst the cities, the city Nagpur is on the first number of the infrastructure record. When the data of Nagpur- rural is seen, the 25

These norms are provided as per the schedule given in the RTE, Act 2009at serial number 2

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Protection of Child Rights in India: An Uncertain Future

following information can be read out; the literacy rate of the Nagpur Rural is 90. 55. There are 118 Primary level schools, upper primary schools are 90 and higher secondary schools are 67.This itself shows that there is a dropout rate in the rural area. Apart from this, the data (in percentage) about the other norms specified in the Act under Section 19 under different heads in Nagpur-rural of the year 2011-12, shows that 99 percent schools are providing building; 40 percent schools do not have Head Master room whereas 42 percent schools do not have classroom for every teacher and about ramp, the data shows that 49.1 percent schools have not constructed it. Further, 2.9 percent schools do not have boys toilets, 11.3 percent schools does not have girls toilets ; 43.7 percent schools do not have kitchen sheds ; 24 percent schools do not have boundary wall and 25.8 percent schools do not have playground26. A bare perusal of this data, clarifies the picture of education infrastructure in the rural areas. Now, if we consider only one out of abovementioned factors i.e., ‘girl’s toilet’ then also, it can be seen as a major reason of dropout of the girl students from the school. The enactment of RT E is definitely a major step, however, absence of the full fledged infrastructure in schools will have adverse impact on the education system. Ancillary aspects The abovementioned aspects are not the only factors for non-effective implementation of the enactments and low rate of education, there are other causes of low rate of education in India, which can be broadly considered under the following heads: Social problems: In rural areas, social status in the society decides the rights and duties of the person27. In rural areas, initially everybody starts with their education but the job to be done in future is predefined by the older family members depending on their occupation. This apart, the 26

file:///C:/Users/Dr.%20Ragini%20Khubalkar/Desktop/ Education%20policy%20%20PROFILE%20Maharashtra-2011-12.pdf pp95 27 The theory propounded by the jurist Sir Henry Maine where he has given example development of law and society in ancient period.

Human Rights of the Children in Rural Areas 11

condition of girl child is totally different. The plight of women is always compounded with the negative approach of the parents towards the girl’s education. The conservative thoughts imbibed in the parents minds make them believe that after the marriage the girl has to look after the household activities and therefore there is no need to educate her. This tendency develops the further thought that the expenditure on girl’s education is waste of money because after all a son is going to look after them. The other reason for depriving the women from education is the apprehension in the minds of men about ‘women dominance’. The followers of patriarchal system are worried about their status in the society. They feel that if girls get education they will overpower the men or they may avoid their traditional duties. Family problems: The economic conditions of rural families are not sound enough. Though the government has introduced various policies for free education, the parents want their children to work with them instead of spending time on studies, for earning more money to survive. The various types of joint families living in rural areas have at least 7-8 members and the decision making in these families is in the hands of men who give least priority to education. School environment problems: It is very difficult to ensure access to safe school environment. As in rural areas the children have to go to another village for education and this creates a problem for them. If bus facility is not available then also the children do not go to the school or colleges. Apart from this the parents also want assurance about safety of their child while on the way to school. So the long distance and lack of infrastructure becomes a hurdle in education. Another problem is about hygiene. The toilet facilities are also not good enough in rural areas. Many toilets do not have doors. This is very big problem for girls who have crossed puberty, since there is no place of washroom. They are afraid of these problems and so they stay at home and when the girls say that they don’t want to go to school the parents easily agree without questioning them as they feel that it is safer as their girls are not going to school. Thus, there is a problem of dropout of the students after particular age. Even

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Protection of Child Rights in India: An Uncertain Future

co-education has received considerable problems in rural areas, as orthodox parents still view the system of co-education with suspicion. Apart from these the behavior and conduct of male teachers towards the girl students is a cause of concern for the parents. Though it is being increasingly recognized that educated wives and mothers are an asset to a nation and best efforts be made to make female education popular and even compulsory, the causes of low rate of girls’ education in rural areas need to be attended with utmost priority. This is important because no matter how rich or vast a nation is, without an effective, efficient and adequate education facilities for all its citizens (men and women), the nations cannot progress in all respects. The kind of education which is felt to be necessary is the education to build the spirit of self realization, and for the literacy of the masses. There is a huge difference between the students of urban areas and rural areas due to the different upbringings, academic environment and availability of basic facilities. All these aspects must be considered while formulating the academic syllabus and also at the stage of introducing the teaching methods. This will ensure that the competent students from rural background can compete with other students and establish him28. Suggestions / Recommendations Although there are ample provisions in the Constitution as well as the other statutes to provide education as a basic and fundamental right, the government policies must take into consideration the ground realities of the rural areas. An intensive effort is necessary to popularize the need of education in villages where the education is not treated to be the first priority. Another area of concern is the villages where schools and colleges for girl students do not exist at all. Apart from this, the poverty in rural areas makes it necessary to provide free education up to matriculation standard. The laws should provide for a separate provision to deal with the parents who neglect the education of their girls. This kind of provision 28

Kaur R. ’Education in Rural India’– available at http://www.mapsofindia.com/my-india/ education/india-needs-education-especially-rural-education 15/4/17

Human Rights of the Children in Rural Areas 13

would be essential in initial stages because most villagers are not aware about the importance of education for girls. It is imperative that every village must have facilities for girls or at least facilities of co-education. In real sense, education must provide the right type of knowledge and make the citizens aware of their rights and duties. Making the citizen to be able to write their names cannot be treated to be educating them. It is necessary that the citizens are educated in such a way that they grow into a matured lot. While framing education policies in future, following recommendations can be considered 1. The government and other nongovernmental organizations should start awareness campaigns for encouraging the rural population to continue their education beyond higher secondary schools. 2. A number of well trained counselors be made available to guide the rural students at the health centers and gram panchayats. 3. Special facilities be provided for the girl students, taking in to consideration their peculiar problems in rural areas. The rural girls need to be encouraged for taking higher education. Conclusion Education is one of the most influential instruments for human development. Importance of education can be read out from the goals set out in the Preamble of the Constitution. Apart from the technical problems there are other social problems which the rural population is suffering with for instance adverse child ratio; impact of poverty; child marriage, child labour; trafficking of children; female foeticide. It is clear from the analysis of various aspects that children from rural areas are educationally deprived in terms of accessibility to formal education. It could also be seen that owing to our conservative societies in rural areas, the children at large have been misled into believing that taking higher education is not of any help and about the girls it is impressed upon them that it is of no help since they have to ultimately get married. It is wrongly believed that after all education ends in the farms. So many hurdles are seen in the advanced

14

Protection of Child Rights in India: An Uncertain Future

stage of education in rural areas. As result, an average rural student would not be in a position to face the challenges in this age of automation and intellectual advancement. The right to education although recognized as a Fundamental Right, it is to be perceived by everybody as the most essential and emergent need. The entire approach of the government should be aimed to encourage the rural population to give education a top priority, under all circumstances. To conclude, perceiving the ‘right to education’ as a basic human right will make it meaningful in real sense.

2

Child Trafficking in India: Issues and Challenges

Afkar Ahmad

“A nation’s children are its supremely important asset and nation’s future lies in their proper development. An investment in children is indeed an investment in future. A healthy and educated child of today is the active and intelligent citizen of tomorrow.” – Rabindra Nath Tagore Abstract Right to life with dignity is considered as one of the most essential element of human rights. Trafficking of children is one of the worst form of violation, the chapter endeavors to highlight upon the factors behind trafficking, the crucial role played by legislature & judiciary. The chapter further tries to discuss the contribution of government of India towards eradication of trafficking of children. The author has tried to support his findings through the data provided by National Crime records bureau followed by certain suggestions.

Human rights are the inherited rights that any person must have after birth. Children are the future of our nation. Children are the most important asset of any nation, in fact a nation’s future largely depends upon what it’s children become when they grow up as citizens and this depends upon what priority is accorded for the healthy and holistic development of the

16

Protection of Child Rights in India: An Uncertain Future

children and the kind of education and care given to them. So far as the child is concerned, in India there are variations in the definition of age of the child. The age limits varies from one activity to other and hence, the age at which a person ceases to be a child also differs under different laws. The Black’s Law Dictionary defines child as an unborn or recently born human being. The term has a universal application irrespective of child being adopted, unborn, after born, legitimate or illegitimate. A child is in existence (alive) from the moment of conception and for many purposes its existence is recognized by the law. The criminal law regards unborn child as a separate legal entity. Even the preamble of United Nation Charter declares rights of the child, before as well as after birth. An unborn child can also be subjected to child abuse by parents and sometimes by others.1 The UN Convention on the Rights of the Child (UNCRC) (1989) is the most widely endorsed child rights instrument worldwide, which defines children as all persons up to the age of 18 years. Article 12 of the United Nations Convention on the Rights of the Child defines “the child” as “every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier”. Other definitions of a “child” under various Indian legislations include the following: The Immoral Traffic (Prevention) Act, 1956 defines a “minor” as a person who has reached the age of 16 years. The Juvenile Justice (Care and Protection) Act, 2015 defines a male minor as being below 16 years and a female minor as being below 18 years of age. 2 Children, despite the fact that, are one of the most important asset of the society, are subjected to oppression in number of ways. Trafficking is one of the many ways in which the dark aspects of human existence manifest themselves; it intrudes into the basic Human Rights devastating the belief in humanity. Human trafficking is a leading global issue of contemporary era and is on the rise in an alarming rate, it is a hydra headed problem in

1

Dr. Nuzhat Parveen Khan, Child Rights and The Law, 21, Universal law Publication. Anuradha Palanichamy, Child Rights, Poverty And Protection: An Indian Perspective, Journal on Rights of The Child, 3, Volume 1 Issue I 2016.

2

Child Trafficking in India: Issues and Challenges 17

the sense that it is a crime, a violation of fundamental human rights, a cross-border security concern, and because of adverse socio-economic implications for human growth, also a developmental issue. Trading in human beings and their exploitation in varied forms by traffickers is one of the most dreadful forms of human rights violation and the worst form of it is trafficking in Children. The origin of the word can be traced to early 16th century (denoting commercial transportation of merchandise or passengers). This English word comes from French traffique or Italian trafico3, since the beginning the term “trafficking” has not been defined specifically but with the emergence of the Palermo Convention, 2000 an endeavor has been made to bring the concept into a strait jacket. Article 3(a) of the Palermo Protocol 2000 (UN Protocol to Prevent, Suppress and Punish Trafficking in Persons) defines human trafficking as follows: “Trafficking in Persons shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”. 4 A detailed definition of trafficking is available in the Goa Children’s Act, 2003 the definition given under section 2(z) is very comprehensive in nature. It says “child trafficking” means “the procurement, recruitment, transportation, transfer, harboring or receipt of persons, legally or illegally, within or across borders, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving payments or benefits to achieve 3

The oxford Dictionary, Oxford University Press, 1885 (Third Edition,2010). Nandita Sharma, “Anti Trafficking Rhetoric and the Making of a Global Apartheid” Vol. 17 NWSAJournal, 90 (2005).

4

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Protection of Child Rights in India: An Uncertain Future

the consent of a person having control over another person, for monetary gain or otherwise”5

Source: UNODC (Available at https://www.unodc.org).

The apex book of the land i.e. the Constitution of India has recognized the special status of children through certain articles 15(3), 24, 39(e) & (f) and 45. In the back drop of these constitutional mandates numerous legislations and policies have been enacted whereby a wide range of issues relating to children has been taken care of. Article 23(1) of the Constitution says “Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.” Despite this constitutional mandate there are numerous instances where debtor or his descendants or dependants have to work for the creditor without reasonable wages or with no wages in order to extinguish the debt, in many parts of the country. It has been found that several generations 5

S .K. Roy, “Child trafficking in India: Realities and realization“, IUAES, 202 (2013).

Child Trafficking in India: Issues and Challenges 19

work under bondage for the repayment of a small sum which had been borrowed by some remote ancestor. This bondage system entails the violation of basic human rights and obliteration of the dignity of human labour.6 Factors leading to Child Trafficking in India There are numerous factors leading to trafficking in children in India. These factors may be classified into two categories: push and pull factors. The push factor includes abject poverty, lack of resources, lack of human and social capital, social insecurity, marginalization, inadequate and outdated state policies, lack of governance, nexus of police and traffickers, breaking down of community support system, cheap child labour, child marriage, corruption, employment trade, migration policies conflict and lack of awareness among the victims are some the factors leading to child trafficking. Globalization has also become one of the emerging push factors leading to child trafficking. The pull factors are: well-paid employment scheme in large cities, easy money, promise of better pay and a comfortable life by the trafficking touts and agents, demand of young girl child for marriage in other regions, demand for low-paid and underage sweat shop labour, growing demand of young kids for adoption, rise in demand for below eighteen years girl in the rapidly expanding sex industry, demand for young girls in places of military concentration like Kashmir in India in recent times, demand for young girls for sexual exploitation as a result of the misconception that physical intimacy with young girls reduces men’s chances of contracting HIV/AIDS, or of the myth that sex with a virgin can cure HIV/AIDS and impotence7 etc. are pull factors behind trafficking in children in India. There are also certain other factors that are responsible through direct and indirect means and mode but whatever may be the reason but at the end of the day, it forces the victim to further exploitation, 6

Available on 1http://www.childlineindia.org.in/CPDownloads/nded%20Labour% 20System %20%28 Abolition%29%20Act%201976%20and%20Rules.pdf (last accessed on 14.10.2016)4.10.2016) 7 Vimal Vidushy, Human Trafficking in India: An Analysis, 169, International Journal of applied research 2016.

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Protection of Child Rights in India: An Uncertain Future

vulnerabilities and to become an element of this modern kind of slavery throughout their life span. The practice of entrusting poor children to more affluent friends or relatives may create vulnerability. Some parents sell their children, not just for the money, but also in the hope that their children will escape a situation of chronic poverty and move to a place where they will have a better life and more opportunities. Approach of Legislature & Judiciary The Immoral Traffic (Prevention), 1986 ITPA is the Act dealing particularly with the issue, it is a magnanimous and victim friendly legislation and its purpose is not merely to punish the accused but to prevent re-trafficking of victims through a special court which oversees the rehabilitation of victims. In the year 1956 the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) was enacted which was further amended in 1986 leading to the Immoral Traffic Prevention Act, 1986 which is also known as ITPA. The Act defines child as any person who has not completed eighteen years of age. The rationale of the Act was to inhibit or abolish commercialized vice, it was not to render prostitution per se a criminal offence. The first section of the Act has provisions that outline the illegality of prostitution and the punishment for owning a brothel or a similar establishment, or for living of earnings of prostitution as is in the case of a pimp. Section 5 of the Act states that if a person procures, induces or takes a child for the purpose of prostitution then the prison sentence is a minimum of seven years but can be extended to life. To ensure that the people in the chain of trafficking are also held responsible, the Act has a provision that states that any person involved in the recruiting, transporting, transferring, harbouring, or receiving of persons for the purpose of prostitution is guilty of trafficking. In addition, any person attempting to commit trafficking or found in the brothel or visiting the brothel is punishable under this law. If a person if found with a child it is assumed that he has detained that child there for the purpose of sexual intercourse and hence shall be punishable to seven year in prison up to life imprisonment, or a term which may extend to ten year and also a

Child Trafficking in India: Issues and Challenges 21

maximum fine of one lakh rupees. If a child is found in a brothel and after medical examination has been found to have been sexually abused, it is assumed that the child has been detained for the purpose of prostitution. Any person committing prostitution in public with a child shall be punishable to seven year in prison up to life imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh rupees. If prostitution of a child is being committed with knowledge of an establishment owner such as a hotel, the license of the hotel is likely to be cancelled along with the given prison sentence and/or fines. Any child found in a brothel or being abused for the purpose of prostitution can be placed in an institution for their safety by a magistrate. Landlords, leasers, owner, agent of the owner who unknowingly previously rented their property to a person found guilty of prostituting a child, must get approval from a magistrate before releasing their property for three years after the order is passed. The judiciary infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society. In Bai Shanta vs. State of Gujarat 8 it was held that the Act does not aim at abolition of prostitutes and prostitution as such – practice of prostitution is only punishable in or in the vicinity of certain public places. In Public at Large vs. State of Maharashtra and Others9, in this case judicial intervention brought about rescue, repatriation and rehabilitation of 487 minor girls. The High Court order led to the prompt care of and attention to the rescued persons, setting up of an Advisory Committee and networking of various departments of the government, and the repatriation of persons trafficked from various states in India as well as neighboring countries. In Prerana vs. State of Maharashtra and Others10, the Mumbai High Court looked into the issue of violation of rights of trafficked children by various authorities who are supposed to implement the law. The court took serious objection to the judicial authority treating the trafficked minor girls as confirmed prostitutes. 8

AIR 1967 GUJ 211 1997 (4) Bom CP 171 10 writ petition No. 788 of 2002 9

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Protection of Child Rights in India: An Uncertain Future

The High Court issued several directions for the proper implementation of the J.J. Act and ITPA, keeping in view the human rights of the trafficked persons. The court order addressed several issues concerning child rights, viz. the role of advocates and NGOs in the JJ Act, child friendly procedures in dealing with rescued persons, etc., and has brought out clear guidelines for compliance by all concerned. In Bachpan Bachao Andolan vs. Union of India,11 it was held that in case a missing child is not recovered within four months from the date of filing of the first information report, the matter may be forwarded to the Anti-Human Trafficking Unit in each State in order to enable the said Unit to take up more intensive investigation regarding the missing child. The Anti-Human Trafficking Unit shall file periodical status reports after every three months to keep the Legal Services Authorities updated. It may also be noted that, in cases where first information reports have not been lodged at all and the child is still missing, an FIR should be lodged within a month from the date of communication of this order and further investigation may proceed on that basis. Once a child is recovered, the police authorities shall carry out further investigation to see whether there is an involvement of any trafficking in the procedure by which the child went missing and if, on investigation, such links are found, the police shall take appropriate action thereupon. As has been pointed out by Mr Phoolka, learned counsel appearing on behalf of the petitioner, an Office Memorandum was issued on 31-1-2012, by the Ministry of Home Affairs, Government of India, by way of an advisory on missing children and the measures needed to prevent trafficking and for tracing of such children. In the said office memorandum, a missing child has been defined as a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the latter part of the Juvenile Act, until located and/or his/her safety/well

11

(2014) 16 SCC 616

Child Trafficking in India: Issues and Challenges 23

being is established. In Swayam Sevi Sansthan vs. State of U.P12 it was observed that the victims of immoral trafficking, most of whom are minor or young girls are let off on bail. They again in most of the cases are forced to go back to the brothels from where they have been recovered and are subjected to prostitution again at the instance of the same persons. Bails are also granted to other accused who are arrested from the brothels without bearing any distinction in mind as to whether they work from behind or may be held to be guilty of the offences of higher magnitude. In 2006, the Ministry of Women and Child Development proposed an amendment bill that has yet to be passed. The amendment does not really concern any of the provisions related to the child but has many important consequences for the right of women sex workers. The Indian Penal Code, 1860 So far as the Indian penal code is concerned, there are certain provisions dealing to the issues related to trafficking. In the year 2013, India enacted revolutionary legislation, the Criminal Law (Amendment) Act of 2013, which amended various sections of the Indian Penal Code, including provisions on human trafficking in India. These reforms replicate a step towards aligning the country with its obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Trafficking Protocol). In particular, the Amendment Act redefines the offence of human trafficking under Section 370 of the Indian Penal Code to closely parallel the definition in the UN Trafficking Protocol. Although these reforms have brought India into closer alignment with international standards, gaps still remain between India’s current laws and the UN Trafficking Protocol. The new sections are trafficking of persons (Sec. 370)13 1. Whoever, for the purpose of exploitation, (a) recruits, (b) transports, ( c) harbours, (d) transfers, or (e) 12

(2009) 15 SCC 75 at page 78 1. using threats, or 2. using force, or any other form of coercion, or3. by abduction, or 4. by practicing fraud, or deception, or 5. by abuse of power, or 6. 13 by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recr uited, transported, harbored, transferred or received, commits the offence of trafficking.

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Protection of Child Rights in India: An Uncertain Future

receives, a person or persons, by — and exploitation of a trafficked person (Sec. 370A).14Under the Indian Penal Code, trafficked children may be subjected to a multitude of violations. For example Kidnapping,15 Selling of girls for prostitution,16 Buying of girls for prostitution,17 Wrongful restraint,18 Wrongful confinement,19 Unlawful Compulsory Labour,20 Habitual dealing in slaves,21 Rape,22 Unnatural Offences,23 Importation of girl from foreign country.24 etc. Apart from the Indian Penal Code and ITPA there are other national legislations to embark upon the issue with regard to trafficking, the Juvenile Justice (Care and Protection of Children) Act, 2015, the Child Labour (Prohibition and Regulation) Act, 1986, the Child Marriage Restraint Act, 2006, the Bonded Labour System (Abolition) Act, 1976, the Human Organ Transplant Act, 2011.Certain states of India have also taken steps towards combating the system of the Devadasi. Mysore was the first pre-independent India against this practice. The Karnataka Devadasis (Prohibition of Dedication) Act, 1982 declares unlawful, the every act of dedication is done with or without the consent of woman. The Andhra Pradesh Devadasis (Prohibition of Dedicated) Act, 1988 proscribes the practice of dedicating women as devadasis, jogins, basavis, parvathis, mathamma or thyamma to Hindu deities, idols, temples, etc. The Goa Children’s Act, 2003, the Act was enacted to protect, promote and preserve the best interests of Children in Goa and to create a society that is proud to be child friendly25. 14

Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine. 15 Secs.359-368, IPC, 1860. 16 Section-372, IPC, 1860. 17 Section-373, IPC, 1860. 18 Sec. 339 , IPC, 1860. 19 Sec.340 , IPC, 1860. 20 Sec. 374 , IPC, 186.0 21 Sec.371, IPC, 1860. 22 Sec.375, IPC, 1860. 23 Sec.377, IPC, 1860. 24 Sec.366B, IPC, 1860. 25 The Goa Children‘s Act, 2003 (Goa Act 18 of 2003) ( 8-7-2003).

Child Trafficking in India: Issues and Challenges 25

Protection of Children and Initiatives undertaken by the Government of India The government of India has taken certain steps to combat child trafficking, a few of them has been mentioned. Establishing Child Line: This 24-hour phone service can be accessed by a child in distress or an adult on his/her behalf by dialing the number 100,182 or 1098. Child Line provides emergency assistance to a child and is based upon the child’s need. It is an effective step in this regard. UJWALA Scheme: Launched by the Ministry in 2007-08 for the benefit of women and girls in difficult circumstances, with specific focus on the special needs of trafficking victims. Kishori Shakti Yojana: A holistic initiative supporting the development of adolescent girls (11-18 years) to promote awareness of health, hygiene and nutrition as well as link girls to opportunities for learning life skills, returning to school and developing a better understanding of their social environment. Scheme for rescuing victims of trafficking: This scheme is to address trafficking in women and children for commercial sexual exploitation through small pilot projects. Community based prevention measures on child trafficking: Preventing children from falling prey to sex traffickers is the first step that must be taken in the range of comprehensive measures needed to guarantee the protection of children. Prevention encompasses a broad range of multi dimensional interventions from mobilization and awareness building among families and the general public to more targeted and specific interventions that reach children at risk and vulnerable due to specific conditions in their lives. Comprehensive prevention programmes to combat child trafficking have to encompass measures at different levels to address the specific vulnerabilities of children and reinforce the families’ abilities to care for and protect their children; to mobilize all stakeholders in the community and at the state level to establish strong protection systems for children, including social welfare and justice systems.26 26

SK Roy, Child trafficking in India: Realities and Realization, 8 IUAES2013, PANEL-MMM02.

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Protection of Child Rights in India: An Uncertain Future

The latest report on crime has been published under the title Crime in India, 2015 Statistics on 30th August 2016 by National Crime Records Bureau, Ministry of Home Affairs, Government of India. The data in the report shows the diverse aspects of trafficking in India. It will be befitting to compare the relevant data of the year 2015 with that of 2014 to get the latest trend on trafficking in India. “A total of 5466 incidents of Human Trafficking were reported in the country during the year 2014, but in the year 2015, 6877 incidents of trafficking were reported which shows that there has been steady increase in the rate of Human Trafficking in India. A total of 720 cases of Human Trafficking under Section 370& 370(A) of IPC were reported during 2014 but, in the year 2015 the number of cases reported saw a remarkable increase of 1021. A total of 1255 accused persons were either acquitted or discharged by various courts during 2014 while the number rose to 3750in the year 2015. It shows high acquittals in 2015.In the year 2015, 4573 cases were charge sheeted for trafficking, although, in total, 12378 persons were charge-sheeted under various crime heads relating to Human Trafficking during 2014. A total of 13 cases of importation of girls from foreign countries were registered during 2014 whereas in the year 2015 it was found that only 6 cases were reported by police. It is noticeable that 24 cases of previous year were pending for investigation.” Overall, it has been observed that human trafficking continues to be a problem of serious concern and there is a need of effective legislative action with a view to combat the occurrence of human trafficking at a large scale as the data reflects. The data shows that the laws and the implementation thereof require rethinking for combating the problem. The measures required in this respect mandate both legal as well as infrastructural rebooting so that laws either enacted or judicially laid down are properly implemented so that, those at the receiving end could be benefited and are rescued from the menace of trafficking. The socio-economic conditions prevailing in the Indian society are sturdily responsible for abuse of child in different forms. This is a confront to the civil society, which can be solved to a large extent by bringing attitudinal and behavioral change and the same can be changed by

Child Trafficking in India: Issues and Challenges 27

imparting value based education and culture. Capacity building in children especially during abusive situations and school age children need to be sensitized. Perceptions and attitudes of parents and people towards children must be modified to understand the problem of child abuse. Thus, the study may be culminated that though there are plethora of Acts and provisions, there are numerous steps been taken by a number of people, government and non-governmental organizations, still the condition is at stake. The Report of NCRB 2015 reveals that there is an increase in the number of incidences of trafficking in comparison to the preceding years. There are numerous reasons behind it; the only Act dealing specifically with the issue of trafficking has certain shortcomings, for example it does not cover all kinds of trafficking, it only addresses trafficking for sexual exploitation and the focal point of the Act should be on the process of trafficking but this aspect has not been incorporated in the Act. Section 5 of the Act should be more comprehensive and exhaustive in nature to bring in all kinds of trafficking and all associates, financers and promoters within the ambit of the provision. Further, Section 17(5) requires amendment, as it says that a magistrate may summon a panel of five persons, the word ‘may’ should be substituted by the word ‘shall’ by which mandatory involvement of civil society is essential for after care activities and all the cases related to trafficking should be in-camera trials. Thus it can be said that though there is pre existence of plethora of enactments in order to curtail the rate of trafficking but unless and until, proper awareness measures are adopted and the society has got sensitized, the trafficking curve in the NCRB graph can never go downward.

3

Unpaid, Unacknowledged and Invisible: Child Labour in Rural India Madhukar Sharma

In this new millennium national agenda would be based on: childcentred education, woman-centred family, human-centred development, knowledge-centred society and innovation-centred India.1Children are the future of a nation; if their present is not secured, then the nation can’t think about the bright future. Children must be nurtured as assets of tomorrow, but the fact is that yet there are 186 million child labours in the world and ILO says that around 98 million children of the age of 5-17 are indulged in rural activities and out of this huge majority (67.5 %) is unpaid labour. Sixty percent of the child labourers of the world, in the age group 5-17 years are engaged in agricultural activities, it amounts to about 129 million girls and boys, simultaneously majority of child labourers are unpaid and unacknowledged. Agriculture has highest percentage compared to all other child labour centric activities.2 Child labour in rural area is termed as hidden worker3 but its major intake is in agriculture workforce of India i.e. farming, fishing, aquaculture, forestry and livestock. Child labouring is treated as skilling for the future 1

R A Mashelkar, Challenges Before India, Director-General, Council of Scientific and In dustrial R esearch , New D elh i, h ttp://pib. nic. in/feature/feyr20 00/fju l200 0/ f110720001.html, accessed on May 05,2017 2 Child Labour but Why, Prognosys report 2012 P-8 3 Agnihotri R V, An Overview of Occupational Health Research in India, Indian Journal of Occupational Environment 2005, p-9

Unpaid, Unacknowledged and Invisible...

29

as family occupation, small scale economic activities, fisheries and animal husbandry. It is treated positively as intergenerational transfer of the technical and social skill for improvement in self-confidence and awareness about the ancestral profile. Child labour is an unpaid, unacknowledged and invisible workforce in India because it is considered as they are supporting their families and sometimes it concerned as the bondage labour but in a real sense it a social assumption camouflaging child labour. The following table shows some of the Indian states and the child labour data: Rank 1 2 3 4 5

State Uttar Pradesh Bihar Rajasthan Madhya Pradesh Maharashtra

Child Labour (In Millions) 2.1 1.0 0.84 0.70 0.72

(As per UNICEF Reports)

In India child Labour constitutes 13% of workforce,4 whereas 5.6 million male child labour and 4.5 million girl child labour having the age group of 5-14 years. Rural and urban scenario has a great division as eight million children were working in rural areas and two million in urban areas according current census.5 Most of the awareness and prevention programmes are limited to the focus only on urban children but rural child labouring is a socially multi-folded problem, it needs versatile acquaintance and strategic planning. Children are employed because they are cheap and flexible to the demands of the employer and not conscious of their own rights; they are concerned about economic values and contingent needs only. UNICEF considers child labour as a biggest issue for their physical, psychological and moral development, as well as risky for their health and wellbeing.6Child labour is not just an economic issue but an issue of human rights.7 4

India census 2001 http://unicef.in/Whatwedo/21/Child-Labour#sthash.es4byAZL.dpuf accessed on May 05,2017 6 Ibid 7 Child Labour but Why, Prognosys report 2012 P-10 5

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Protection of Child Rights in India: An Uncertain Future

In rural India, children are usually engaged in construction work, domestic work, small scale industries, cottage industries, agro processing, plantation, brick-making, jaggery industries, harvesting, bangle-making, power-loom, hand-loom, beedi-making etc., but agriculture is most famous and oldest occupation for rural child labour. The important characteristic of child labour in India is that the major chunk of children labour force is concentrated in the rural areas on farm activities. This reflects in census as well as NSSO data and raises a question on the validity of the narrow jurisdiction of the law which focuses only on visible forms of child labour in urban conditions. Situations of child labour in India is very critical as every 11thchild in India is working, Child labour has been decreasing at an abysmal rate of 2.2% per year from 2001 to 2011as effect of the implementation of RTE (Right to Education).80% of working children are in rural areas, three out of four rural child worker works in agriculture i.e. a cultivator, harvester and household keeper, and almost 25% of adults work in hazardous conditions. Nearly 10% of adolescents working in hazardous conditions are working for family enterprises, 70% of those in hazardous conditions are not studying. The number of boys working in hazardous conditions is 38.7 million compared to that of girls which is 8.8 million.8 Child Labour The term child labour is defined as the work that deprives children of their childhood, their potential and their dignity and that is harmful to physical-mental development. It refers to work that is mentally, physically, socially or morally dangerous and harmful to children and interferes with their schooling by depriving the opportunity to attend school, obliging them to leave school prematurely or requiring them to attempt to combine school attendance with excessive and heavy work.9 96% of child labour workers are found in third world countries and Asian countries contributes the largest chunk of 62% out of this figure. 8

10 alarming statistics on child labour in India http://www.livemint.com/Politics/ ZPALzwgvOLhyMfxWsobcHM/10-alarming-statistics-on-child-labour-in-India.html accessed on May 05,2017 9 International labour Organisation combating child labour through Education 2003, Geneva

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31

Child Rights in India The Employment of Children Act 1938 was the inception for the rights of the children and to prevent the child labour in India. After the independence, Article 24 of the Constitution of India focused on the fundamental rights of the children in regard of child labour; it says that ‘Prohibition of employment of children in factories, etc. no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.’10Simultaneously, under the Directive Principles of the State Policy, Article 39 of the Constitution of India directs that ‘The State shall, in particular, direct its policy towards securing: 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’.11 Under the right based approach of the previous government, free and compulsory education became the fundamental rights of the children in India under the Article 21A of the Constitution of India, as ‘Right to Education’ says that ‘State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State, by law, may determine. ‘For the safeguard of the children, Indian Government introduced an Act for the child labour regulation i.e. Child Labour (Prohibition and Regulation) Act 1986 which stated that no child shall be employed or permitted to work in any of the occupation set forth in part A of the schedule or in any workshop wherein any of the processes set forth in part B of the schedule is carried on and child means a person who has not completed age of 14 years. 12 In 1979, Government formed Gurupadswamy Committee for the first time to study the issue of child labour, the Committee recommended that as long as poverty continued, it would be difficult to totally eliminate child labour, hence any attempt to abolish it through legal recourse would not be a practical proposition, Committee further recommended to ban child labour in hazardous areas 10

The Constitution of India Ibid 12 Child Labour (Prohibition and Regulation) Act 1986 11

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Protection of Child Rights in India: An Uncertain Future

and to regulate and ameliorate the conditions of work in other areas. It recommended that a multiple policy approach was required in dealing with the problems of working children. Based on Gurupadaswamy Committee, the Child Labour (Prohibition & Regulation) Act was enacted in 1986. In consonance with the above approach, a National Policy on Child Labour was formulated in 1987. The government amended child labour laws, the amendment introduced a new definition of ‘adolescents’ and ruled the new criteria for children between 14 and 18 years of age to be barred from working in any hazardous industry. Child Labour vs. Working Children Child Labour: Those children who are doing paid or unpaid work in factories, workshops, establishments, mines and in the service sector such as domestic labour. The Ministry of Labour, Government of India has employed the term ‘child labour’ only in the context of children doing ‘hazardous’ work. By implication, children who are not doing ’hazardous ‘work are not considered to be child labourers and are said to be doing child work. The consequence of this narrow definition of child labour is that the Labour Ministry’s definition only includes a very small percentage of children who are in the work-force and leaves out millions of children who require policy and programmatic support from the Government. Working Children: Children who are working as part of family labour in agriculture and in-home-based work fall under the category of working children. If children are working 12-14 hours a day along with their parents at the cost of their education, their situation is similar to that of children working for other employers. In fact, children, particularly girls, are expected to take on work burdens by parents in complete disproportion to their physical and mental strengths and abilities. This is the largest category of children who are out-of-school and are working full time. And it is here that we find the largest percentage of girls is working at the cost of education.

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Working Children in India The following table shows the figures and changing trend in working children in India: S.No.

Census Year

Number of Working Children

1. 2. 3. 4. 5.

1971 1981 1991 2001 2011

10753985 13640870 11285349 12666377 4353247

(Working children in the age group of 5-14 years as per Census)

The child labour is still a challenge before the nation. Government has been taking various pro-active measures to tackle this problem. But the magnitude and extent of the problem rests in many socio-economic aspects of poverty and illiteracy, according to the Census 2001 figures there are 1.26 crore working children in the age group of 5-14 as compared to the total 25.2 crore children population. There are approximately 12 lakhs children working in the hazardous occupations/processes which are covered under the Child Labour (Prohibition & Regulation) Act i.e. 18 occupations and 65 processes described under the Act. National Sample Survey Organisation (NSSO) in 2004-05, the number of working children is estimated at 90.75 lakh. As per Census 2011, the number of working children in the age group of 5-14 years has further reduced to 43.53 lakh. It shows a paradigm shift in arena of child labour. Perception Regarding the Working Child Rural India has a heterogeneous and complex social system wherein involvement of children in day to day activities is treated as the transfer of the knowledge and skilling from one generation to another. Most of the time, adolescence is measured by the height and gestures not according to age, limitation of the opportunities tends to work in small age. Simultaneously un-employability of the educated and literate young people from the rural areas creates disquiet towards the education in general. Farmers tend to think that if they educate their next generation, it would hang in a limbo, neither belonging to educated service class nor the farming

34

Protection of Child Rights in India: An Uncertain Future

class. In addition, a complex caste based traditional social structure enforces child labour into inherited vocation. Child Labour Intensive Areas In India Child labour constitutes a huge part of the workforce; many processes are child labour intensive activities. In modern era new forms of child labour are emerging in India. There is a huge demand for the children for the domestic work specially for caretaking of the infants in nuclear families where parents are working and they want a child for their new born child’s care, it creates a new kind of nuisance as child‘s exploitation for child care. Chotuis, a very notorious term in India for calling a minor supporting staff/worker in small food wending shops and restaurants, this nick name reflects both aspects: the matter of dignity and the age minority of the child labour. Both agriculture and manufacturing have different minor work for the working children as some places are very notorious for the child engaging production like carpet-manufacturing, tea-harvesting, bangle-making, beedi-making, matchbox and cracker manufacturing. Every sector has defined and designed work for the children with a minimum remuneration as per the availability and compatibility. Agriculture Cotton Seeding: child labours are highly engaged in cotton seed farms, in India about ten states have cotton farming namely Gujarat, Andhra Pradesh, Tamil Nadu, Maharashtra, Karnataka Madhya Pradesh Haryana and Punjab. Cotton seed cultivation is very labour intensive process and it is carried for about 100 days of continuous working during the harvest season and indulges mass child labour for plucking and collecting cotton seeds. Sugarcane Harvesting: There is a large share of sugarcane in Indian agriculture; no harvesting machinery has yet been invented. Farmers depend on the migratory sugarcane workers that come from comparatively dry or drought prone areas. For example, in Maharashtra there is a seasonal migration from Ahamdnagr, Beed and Sangli districts to sugarcane growing areas. With these migratory labourers, their children also travel missing

Unpaid, Unacknowledged and Invisible...

35

their schooling back home. These children are never accounted in terms of child labour though they work full time with their parents on sugar cane farms. Landless farmers and their children are involved in sugarcane harvesting only for fodder for their cattle and animal husbandry instead of cash or any other benefits. Rice and Onion Plantation: The western districts of Maharashtra, parents who are actually quite well off farmers pester their children to stay home from school and contribute in plantation of rice and onion during the rainy season. These agriculturally richer belts of India have a huge problem of labour availability due to migration towards cities and therefore the farmers have to utilize all members of the family including their children. This form of child labour has also been invisible, unaccounted and unacknowledged. Vegetable Harvesting: To pluck the chillies and fruits is a routine activity in vegetable farming. It is not feasible for farmers to employ full time daily wage earner adult labour for such routine activity. Therefore, most of the time small kids are involved in agro-harvesting just because of the compatibility and easy availability in rural India. Poor parents allow their kids for the harvesting activities because for this work they got product on the place of the cash (sort of traditional barter system), which provides them food support. In cash crops like sugarcane, tea, rubber, tobacco children are deployed for the monetary benefits. Manufacturing For cheap labour children are prime target, cottage and small scale industries of the rural India engaged huge number of the working children. Beedi making, matches and fireworks, bangle-making, carpet, handloom and cracker-manufacturing are child labour intensive sectors where children are deployed with their family members. Many times children are engaged in various processes without any physical and monetary benefits as in jaggery processing units (Kolhu) many children involved in supplying stuff to fire chamber for the minimal incentives of jaggray or sugarcane juice. Small scale industries in rural India have many jobs for the children on

36

Protection of Child Rights in India: An Uncertain Future

hour basis and sharing of goods. Sivakasi is synonymous with child labour, famous for fireworks industry in India, a majority of children working in firework units, work under small sheds and hazardous working conditions. In 2002, the International Labour Organisation (ILO) had brought out a report stating that the firecracker industry was not the only one where the children were present in significant numbers, the children were also employed in the industries that manufactured incense sticks and matches accessional demand for these products had grown overtime and casual workers were more in demand. Conclusion Agriculture has huge burden in India; 56.6 percent working population is involved in agricultural and allied activities having 13 percent contribution in GDP. India has 159million Hectares arable land, sharing 2.4% of the world‘s arable land and support over 7.5% world population that creates hidden unemployment, unacknowledged and invisible labour. For many Indians, life is a big struggle just to make the ends meet and to put together the bare essentials for survival, and shortages of resources works mostly against the poor and underprivileged. Even as sections of India’s lower middle-class struggle with scarcities, it is the poor and vulnerable sections of society who suffer the most. It is a well-known fact that the biggest curse to the lives of millions of Indians is poverty.13 Researching on Recent Trends in Employment of Child Labour in Hybrid Cottonseed Production in India, Davuluri Venkateswarlu emphasised the on the number of children working on cotton seed production in different states, in 2004 around 90,000 child labour was deployed in Gujarat where sixty percent were girl child labours were employed. .14Children working in the tobacco farms and plantations work under poor conditions e.g., long working hours without food, extreme heat, carrying heavy loads, risk of injuries from snakes and other animals, thorns, exposure to agrochemicals including 13

S S Sangra, Population growth and Agriculture in Indiahttp://indiamicrofinance.com/ population-growth-agriculture-india.html 14 Venkateswarlu, Davuluri (2007) “Recent Trends in Employment of Child Labour in Hybrid Cottonseed Production in India”

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inorganic fertilizers and pesticides without protective gears; techniques and tools are very traditional hence manpower is the source for all activities. The Government of India needs to come up with a versatile planning to improve the critical situation of rural children. Focusing on the child issue in rural India, poverty is the root cause. ‘Child labour in agriculture is a rural poverty issue and has to be handled with rural development-driven solutions’ said David King, Secretary-General of the International Federation of Agricultural Producers (IFAP). Different schemes of the government for the alleviation of poverty and employment, under the various developmental programmes for benefiting the greater masses emphasized to cover families of child labours. Many a Project Based Plan of Action envisages starting of projects in areas of high concentration of child labour, pursuing this, in 1988, the National Child Labour Project (NCLP) Scheme was launched in 9 different districts of various states. This scheme envisages starting of special schools for child labour who is withdrawn from work. In these schools’ children are provided formal/non-formal education along with vocational training, along with stipend and food, many NGOs are active participant in this scheme. Presently about 6000 special schools are in operation under NCLP scheme and around one million children have been mainstreamed into the formal education system under the scheme. Government is taking proactive steps to tackle the problem through strict enforcement of legislative provisions along with rehabilitative measures, but rural child labour still is out of the reach. Since poverty is the root cause of this problem, and enforcement alone cannot help solve it, Government has been laying a lot of emphasis on the rehabilitation of these children and on improving the economic conditions of their families. Legislative Action Plan for strict enforcement of Child Labour Act and other labour laws to ensure that children are not employed, and that the working conditions of children working in hazardous and non-hazardous areas are not regulated as the key detrimental to the health and safety of the children. A paramount challenge for developing India, the rural child labour still remains unpaid, unacknowledged and invisible.

4

Anomalies of Adoption Law and Child Rights in India

Priya Vijay

Right are the legal tools to ensure all round development of human being be it an adult or a child for that matter. A child is also a human being for the purposes of intellectual and physical growth and development, rather a child is more vulnerable if it comes to human rights violations, because they are more prone to being abused, physical as well as mental exploitation. In spite of plethora of development at international and national arena towards child rights their rights and protection has been at loggerheads. Adoption can serve as tool to take care and get rid of all possible misfortunes brought to a child by blessing her/him with a family and most probably a guarantee against all possible exploitation. But this presumption needs to be tested before it could be guaranteed. The law of adoption in India does it really serves the purpose of adoption in India, what trend the practical working of adoption laws shows. Adoption concerns two of our basic human concerns, identity and family. A child’s rights to an identity and family are now universally recognized. They are enshrined in the United Nation Convention on the Rights of the Child, 1989. The convention on child rights also mandates that parents and family1 is a right of the child which can be materialised through exercise of adoption. In fact various 1

Art 5, Convention on Child rights

Anomalies of Adoption Law and Child Rights in India

39

other rights are also come to reality when a family is gifted to a child. Her emotional and physical development is also realized through family and parents. Realization of each and every right of child is linked to her family therefore adoption which is a means to achieve a family assumes great importance Therefore the significance of family to a child can hardly be exaggerated. But adoption has not been able to serve its purpose due to several technical and practical issues. The various reports show that law of adoption in India, due to several sociological and personal reasons has actually worked to violate the various aspects of child rights in India. Failure of adoption in India The Indian regime on adoption has itself led to its failure. The provisions which were meant to ensure safety and welfare of child has actually not been able to further the object of adoption in India. It is not to be denied that it is difficult to establish the balance between desire of the desperate parents to find a family with child and also to ensure that a child is not only made available through law but also is adopted through proper legal procedure2.It is this needed balance that is to be achieved by the law making authorities. One of the primary reasons that are cited behind falling adoption level is rise of in vitro fertilisation and legalisation of surrogacy techniques in India. Surrogacy has appeared as an alternative to adoption3 which also clears all doubts regarding the biological lineage of the child without undergoing the pain of child birth. New reproductive technologies including artificial insemination are posing tough challenge to the cause of adoption especially in India4. After exhaustion of all efforts at reproductive techniques only in their late 40s couples are ready to accept adoption as a means of finding family joy, this practice again creates issue with the existing law of 2

Schedule 8 of the Guidelines Governing Adoption of Children, 2015 Provides the documents required for adoption 3 http://timesofindia.indiatimes.com/life-style/relationships/parenting/Surrogacy-is-analternative-to-adoption/articleshow/20892864.cms 4 http://www.livemint.com/Politics/N92B5FcPp7cVp3jqD7pchN/Why-is-the-number-ofadoptions-in-India-declining.html

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Protection of Child Rights in India: An Uncertain Future

adoption which says that if the combined age of the couple is more than 90 years they cannot adopt an infant. In Indian mindset the current practice of adoption shows that parents are interested only in a child below one year and that to any medical infirmity becomes the ground for rejection of the child, whereas if their natural child is born with any medical complication they leave no effort to treat it. There are even instances where parent do not cope with the behavioural issues of the child adopted and even gone to the extent of returning the child. Such a behaviour is actually a shame on human society and failure of adoption. Further this preference for infants leaves the orphanage with glut of children of the age group 3-4 and scarcity of infants, even the efforts at counselling the parents to go for adopting elder children has failed to bring results. Another failure of the system has been that most of the institution that do not figure out in adoption set up are engaged in adoption and promoting black marketing of babies, the technicalities of adoption forces the parents to resort to middleman and touts this further creates the ground for violation of child rights. There is call for stricter monitoring of those middleman engaged in procuring child for childless couples in the light of a shocking incidence reported5 where a head of an orphanage was arrested due to illegal selling of an HIV positive child to a couple in Mumbai for Rs.1 lack, the couple filed a complaint after death of the child completely unaware of the medical condition of child and had to suffer huge mental trauma. It is the irony that those entrusted with obligation of caring the orphan children mostly indulge in corrupt practices involving child exploitation. The newspapers are frequently bringing to light cases of NGOs and orphanages indulging into selling and smuggling of children, it is not to be denied here the law seeks to ensure that such practices are reduced to minimum but the solution does not lie in making the law stricter and technical so that it becomes difficult to adopt and couples start resorting middleman/agencies further making thing vulnerable rather any rule towards adoption should aim at ultimate object of bringing family joy for the child as well as couple. 5

In 2010, Mathew Rayappa Yanmal, head of the Gurukul Godavari Balak Ashram —an orphanage that was operating in Pune available at http://www.dnaindia.com/mumbai/ report-serious-adoption-issues-came-to-the-fore-in-pune-1487096

Anomalies of Adoption Law and Child Rights in India

41

There are in place unscrupulous agencies giving result to inter country adoption by forging the documents and flouting the norms, and money plays a significant role in the adoption process6. Inter-country Adoption”, an international study by the United Nations Children’s Fund’s (UNICEF) research institute, International Child Development Centre in Florence, Italy, is one of the most extensive pieces of research on the subject. It brings into the open the “large-scale abuses of the spirit and procedures of inter-country adoptions.” According to the study: “During the adoption process, violations of the most basic rights of the child can occur. These violations are often perpetrated under the cover of the supposedly humanitarian aim of the act and `justified’ by the simplistic view that the child will somehow always be `better off ’ in a rich country. Illegal acts and malpractice involve criminal networks, intermediaries of all kinds, and couples prepared to carry out, to be accomplice to, tolerate, or simply ignore abuses in order to secure an adoption. The diversity of the methods used and the range of actors demonstrate the complexity of the task of protecting the rights of the child in inter-country adoption. The challenge is greater in that in many, if not most, cases the resulting adoption bears all the hallmarks of a perfectly legal procedure7 .” It is demanded by the activists that there should be strict monitoring of the agencies involved in adoption but that regulation should not hinder the process of adoption making it difficult for the common people to adopt child. It is suggested that jurisdiction of CARA8 should be expanded to genuinely ensure that agencies under CARA adhere to the guidelines which is lacking till date. To further rule out malpractices, online matching of the child and prospective parent can be a good measure which will eradicate maximum possibility of corruption by the adoption agencies. Though it is 6

http://www.frontline.in/static/html/fl2211/stories/20050603006700400.htm h t t p s :/ / w w w. u n ic e f -ir c . o rg / p u b lic a t io n s / p d f / u n i c e f % 2 0 b e s t % 2 0 in t e r e s t % 20document_web_re-supply.pdf 8 Central adoption resource authority 7

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Protection of Child Rights in India: An Uncertain Future

not easy to differentiate between real and false cases but at least we can evolve mechanism to minimize chances of misuse. There is universal accord, rooted in global human rights law, that the best welfare of the child should be a main thought in any decisions made about a child’s future. In the case of adoption, which represents one of the most extensive and authoritative decisions that could be made about the life of any child – the selection of their parents – international law qualifies the best interests of the child as the supreme contemplation. The results of this obligation are all the larger in the context of the inter country form of adoption, since this involves in addition the shifting of a child to a new country and, mostly, a new culture9. Technicalities of the law of adoption in India It is said that law is meant to serve common good and has come into existence to regulate human life for its betterment, but sometimes those provisions actually serve to render the process complicated making the whole exercise futile. The concept of legal adoption prevailed only with Hindus and thus only Hindu community was permitted to adopt children by law and other communities were only to act as legal guardian, this religion centred nature of law relating to adoption was very conservative step as it promoted practices that were unfair to children and also stalled the development of uniform civil code. The Hindu adoption and Maintenance Act 1956 allows adoption of Hindu children by Hindus only, as the law is not available to people of other religion including Muslims, Christians and Parsis they have to rely upon Guardians and Wards Act 1980 which only gives guardianship rights to such parents10. However sec 11 of the law does not permits a couple having a daughter to adopt a daughter, similarly having a boy render you 9

Nigel cantwell, The Best Interests of the Child in Intercountry Adoption, A report by UNICEF 10 Section 7 of the Act lays down as to who is permitted to adopt a child; Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adopti on; Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind

Anomalies of Adoption Law and Child Rights in India

43

incapable of adopting a boy, such provision was a source of misery for many couples but this was set right by the Bombay High court by a judgment that has thrown open the legal doors allowing Hindus to adopt a child of the same gender and to treat the same in law as their existing biological child11. The honourable court held that courts must harmonise personal laws with secular law and thus said that Juvenile Justice Act 2000 should prevail over Hindu Adoption Act 1956 which circumscribes adoption in India. The High Court further held that, Right to life includes rights of parents and of individuals, women and men, who wish to adopt to give meaning to their lives on the one hand and, on the other hand, is the right of abandoned children who are in need of special care and protection. The laws of adoption in India have to keep pace with time and need to be dynamic to adjust with social realities. The existing laws clearly demarcate as to who can adopt 12 Any Indian, NRI or foreign citizen can adopt a child, though the procedure for all three is different. as homosexuals are not allowed to adopt there by limiting their access to family joy as well as denying right o family to several such children who can be given in adoption to them, further live in parents are also not allowed by law to adopt as for this purpose relationship outside marriages are not recognised. Indian courts and child rights The ancient Indian society had allowed adoption. The major consideration in adoption has however, been religious. The need for a male child to perform the last rites of a person upon his death, so that he would be saved from entering hell13 earlier right to adopt was confined to only males but the passing of Hindu Adoption and Maintenance Act made the right to adoption equally available to males and females.14 Currently 11

http://www.mondaq.com/india/x/103090/Family+Law/Legal+Aspects+of+Adoptions Any male or female irrespective of their marital status is eligible to adopt. A single female can adopt a child of any gender but a single male cannot adopt a girl child. If a couple is adopting, they should have two years of stable marriage and consent of both the spouses is necessary. Age difference should not be less than 25years between the adoptive parents and the adoptive child. 13 Manu, V.138; see also. Baudhayana, 2.16.6; Vishnu, XV, 44.46; Yajnavalkya, 1, 78 14 Shripad vs. Dattaram,AIR, 1974, SC.878

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Protection of Child Rights in India: An Uncertain Future

the foreigners apply for guardianship and later adopt them in their country in accordance to their national law15thus it is shown that courts have been torchbearer in this field. Indian courts and its activism have served as tool for the protection of children from exploitation, abuse and trafficking; it has been instrumental in reminding the government in its duty towards protection of children and has supplied the motivation for dynamic laws towards child rights protection and welfare. In Lakshmikant Pandey vs. Union of India16, is a high watermark in the development of the law relating to adoption, the writ petition arose out of a letter written by a practicing advocate, on allegation of mal practices by social organisations and voluntary agencies indulged in providing child to foreign Indian couples in adoption making reference to media reports based on empirical investigation adoption is being used a tool and children are exposed to beggary and prostitution in foreign countries. The relief was sought by the petitioner restricting private agencies carrying out adoption as business abroad and demanding instruction to Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. As a result of this writ petition notices were issued to Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to answer the writ to help out the Court in laying down principles and norms which should be followed in shaping whether a child should be authorized to be adopted by foreign parents and if so, the practice to be followed for that purpose, with the aim of achieving the interests of the child. In this case the apex Court held that any adoption in contravention of or nonconformity with law, may lead adoption to be declared void and rendering person concerned to strict action including prosecution. For years, social activists have used these directions to protect children and promote desirable adoptions. The Government of India framed a national policy in this regard. And most 15 16

Jayantilal vs. Asha,AIR, 1989, Guj.152 1984 AIR 469, 1984 SCR (2) 795

Anomalies of Adoption Law and Child Rights in India

45

importantly CARA was the result of this judgement only. Cross border adoption is an area always vulnerable to several ill practices lacking constant regulation, through kidnapping and force children are moved away from the parents and even abandoned children are falsely depicted as available for adoption, with aim to earn money17. Though foreign couples are more interested in adopting children irrespective of their medical condition but strict control over agencies operating in field is required to reduce cases of child abuse. In a landmark judgement the Maharashtra High Court said18 that if a wedded couple of which one is an Indian and other being foreigner are interested in adopting a child, then for this purpose such cases will be treated as in country adoption and not a foreign adoption. The ruling by Justice V M Kanade and B P Colabawalla arose after an American woman, living in India for the past six years, and married to an Indian national moved High Court saying the central adoption agency had held up adoption procedures for her in this very reason. The court, in a first, will also set detailed guidelines so that there is no ambiguity in such cases of adoption. After the ruling, the central adoption agency sought a stay on the order but the court rejected his plea. There is another dimension as well with respect to the role of court. It is to be noted that though court have shown reluctance on interfering with family matters in which adoptions falls but the role the courts have played in restoring child rights and welfare in matters of adoption are commendable. The US courts are of the view that the autonomy of the family should not be disturbed absent some showing that the parent’s conduct places the child’s health, safety, or welfare at significant risk of harm19.

17

http://www.livemint.com/Politics/N92B5FcPp7cVp3jqD7pchN/Why-is-the-number-ofadoptions-in-India-declining.html 18 http://indianexpress.com/article/cities/mumbai/bombay-hc-gives-land-mark-ruling-inadoption/ 19 Meyer v. Nebraska,262 U.S. 390 (1923)

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Protection of Child Rights in India: An Uncertain Future

Conclusion The whole discussion was towards insuring better compliance to laws for protection of children and their welfare, though the strict adoption regulation was meant to remove all possibilities of child exploitation but they actually ended up into making the process itself intricate and thereby adoption as a whole has fallen. The misuse of the same law detrimental to interest of the child and role of money could not be removed is spite of the stringent laws therefore the purpose can not only be served by strict and time consuming laws rather the issues that have derailed the adoption process need to be strictly addressed. The role of court has been encouraging time to time but they are required be made more sensitive and aware of the malpractices and thereby come out with remedial measures.

5

Issue of Child Soldiers in India

Vijayendra Kumar Purohit & Megha Purohit

Abstract Over the past decade, the issue of child soldiers has brought the significant attention of the whole world particularly, United Nations Officials, policy makers, academicians and media. The process of child recruitment during conflicts is not something new in front of the world however continuous recruitment of children emerges as a central concern in modern warfare. Due to ongoing conflicts in various regions, the incidents of child recruitment have been on significant rise. Engaging children during the armed conflict not only destroys their individual autonomy rather it displaces the children from their homes, affects the education of such children, their safety and security which often leads to distrust and sometimes refugee crisis and political instability. Hence, this chapter is an attempt to see how children allured towards these activities and why they are being recruited by the armed groups. The scope of this chapter will outline the issues of child soldiering in India along with the international framework in order to identify the gravity of the problem.

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Protection of Child Rights in India: An Uncertain Future

Introduction “If we wish to create a long lasting peace, we must begin with children” - Mahatma Gandhi. International community defines a child soldier, or a child associated with an armed force or armed group (CAAFAG) as: “any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys, and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.”1 Child labour (ILO: 1999) is a global phenomenon that deprives children from their basic amenities and exposes them towards social, economic, mental, emotional dangers, and psychological trauma of abduction, sexual violence etc. Whereas armed conflict arises out of the repercussions of continuous and changing process of warfare, which articulates its shape in front of the society as one of the means to develop political economy of the state. The process of armed conflicts not only affects the militants and government rather it has deep and pervasive connection with the life of the civilians. Some children voluntarily opt for the recruitment in armed conflicts due to the multifarious reasons, such as, poor parental background, lack of awareness about the repercussions of such involvement or to gain monetary outcome etc. The use of children in such armed conflict is a worst form of child labour- a violation of human rights and a war crime. It involves two broad rights of the individual i.e., rights recognized under Humanitarian law and Human Rights law. Apart from this, engaging the children during the armed conflict not only destroys their individual autonomy rather it displaces the children from their homes, affects the education of such children, their safety and security which often leads to distrust and 1

Paris Principles: The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, UNICEF (2007), available at https://www.unicef.org/emerg/files/ ParisPrinciples310107English.pdf, last seen on 24/03/2017.

Issue of Child Soldiers in India 49

sometimes refugee crisis and political instability. The United Nations and the international community use the term “children and armed conflict” to capture the following six grave violations against children in situations of conflict: a. the recruitment and use of children as soldiers; b. rape and other grave sexual violence against children; c. killing and maiming of children; d. abduction of children; e. attacks against schools or hospitals; f. denial of humanitarian access for children. According to the estimates of UNICEF in 2015, “more than 300,000 child soldiers are currently exploited in situations of armed conflict and 6 million children have been severely injured or permanently disabled.”2 In India (January 2013), it was reported that the state government of Meghalaya had agreed to institute a ‘high level-inquiry’ by an Inspector General of Police to investigate the recruitment and use of children as child soldiers by armed groups.3 In Manipur, children are known to be forcibly recruited and trained as fighters by various armed opposition groups, most notably by the Revolutionary People‘s Front.4 Hence, the present chapter endeavours to present how the children allured towards the violent activities during armed conflict and to expose the issue of child soldiers in a pristine manner by inquiring into existing international legal 2

Beatriz Ciordia, Children Increasingly Becoming the Spoils of War, Inter Press Service (14/07/ 2015), available at http://www.ipsnews.net/2015/07/children-increasingly-becoming-the-spoilsof-war/, last seen on 25/03/2017 3 High level inquiry to probe ‘child soldier’ reports: NCPCR, Meghalaya Times (09/01/2013), available at: http://meghalayatimes.info/index.php/10-front-page/front-page/17581-high-levelinquiry-to-probe-child-soldierreports-ncpcr, last seen on 25/03/2017. 4 Nongmaithem B, Manipur ultras recruiting kids as soldiers, The Sunday Indian (27/04/2012), available at: http://www.thesundayindian.com/en/story/manipur-ultras-recruiting-kidsassoldiers/14/34014/, last seen on 25/03/2017.

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instruments and case-studies. The chapter will inquire into the widespread violations of the international standards in above-mentioned countries where the armed forces and groups that recruit children persistently active. Hence, it will provide a comprehensive report of the condition of India to develop the creative spirit in the community by recommending some effective measures to address the problem of child soldiers. International Law Concerning Child Soldiers Customary International Humanitarian Law Rule 136 of chapter 39, Customary IHL states that children must not be recruited in the armed conflict whether it is international or noninternational.5 Rule 137 of the same chapter proscribe the association of children in the hostilities whether it is direct or not.6 The following international conventions protect children during hostilities: International Humanitarian Law The Four Geneva Conventions adopted in the year 1949 protects the persons who do not take part in the hostilities and ensures that the civilians are not subjected to any kind of cruelty, torture or killings. However, the fourth Geneva Convention specifically states that children under 15 years of age needs special care and protection during the hostilities and accordingly state parties must ensure that they should be reunited with their family and should be provided with the educational facilities, healthcare, food and accommodation.7 5

Recruitment of Child Soldiers, International Committee of the Red Cross, available at https:// ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter39_rule136, last seen on 28/03/ 2017 6 Participation of Child Soldiers in Hostilities, International Committee of the Red Cross, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter39_rule137, last seen on 28/03/2017 7 Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949, Inter national Committee of the Red Cross, available athttps://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument, last seen on 28/03/2017

Issue of Child Soldiers in India 51

Article 77 (2) of the Additional Protocol I entail to effectuate the steps to prevent the participation of children under 15 years in the international armed conflict.8 Talking about the Additional Protocol II which exclusively deals with the non-international conflicts, also there is an article which outlawed the children’s partaking from the hostilities whether direct or indirect. However, this is only confined to those conflicts in which one party is at least a governmental organization and another one is non-state actor which belongs to same territory/state.9 International Human Rights Laws Convention on the Rights of the Child, 1989 (CRC) was adopted for the protection of the children in all types of situations. It is clearly mentioned in the Article 38 (3) of the CRC that recruitment is only done of children under 15 years age however, the CRC defines child who is under 18 years. Here lies the anomaly asking for the harmonization between these two different ages. Article 4 (1) of the Optional Protocol to the Convention on Rights of the Child on the Involvement of Children in Armed Conflict 10 also provides: “armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” It requires States Parties to take all necessary measures including legislative actions for prevention of child recruitment.11 This protocol tries 8

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 1977, International Committee of the Red Cross, available at https://www.icrc.org/ihl.nsf/INTRO/470, last seen on 28/03/2017. 9 Art. 4(3(c)), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), Office of the United Nations High Commissioner for Human Rights, available athttp://www. ohchr.org/EN/ProfessionalInterest/Pages/ProtocolII.aspx, last seen on 29/03/2017. 10 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Office of the United Nations High Commissioner for Human Rights, 2000, available athttp://www.ohchr.org/Documents/ProfessionalInterest/crcconflict.pdf, last seen on 29/03/2017 11 Ibid, art. 4.2

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to give us a picture of recruitment done by the armed groups not by the armed forces of the states of the children under 18 years. The armed groups refer to that organization which stand in dispute with the government of the state and initiates their actions through insurgency. However, the provision does not forbid the recruitment of children by armed forces of the state. Here lies the potential dilemma because on one hand we are talking about the rights of the children and on the other hand by not making specific prohibition, we are creating scope for the governmental authorities to recruit the children, hence this needs to be looked in. In 2005, the UN Security Council (UNSC) passed Resolution 1612 to set up a “monitoring, reporting and compliance mechanism” to help enforce compliance among groups using child soldiers in armed conflict.12 International Law on Child Labour Article 3 of the Convention No. 182 of International Labour Organisation (ILO) considers “forced or compulsory recruitment of children for use in armed conflict as a worst form of child labour”13. This convention was enacted to minimize the effect of child labour by prohibiting the mandatory enlistment of them. According to ILO (2002) states that: “one in every six children aged between 5 and 17 (or 246 million children) is involved in child labour. 1 Out of 246 million, about 170 million child workers were found in different hazardous works. Some 8.4 million children were caught in the worst forms of child labour including slavery, trafficking, debt bondage and other forms of forced labour, forced recruitment for armed conflict, prostitution, pornography, and other illicit activities.”

12

U.N. Security Council, Security Council resolution 1612 (2005) [on children in armed conflict], 26 July 2005, S/RES/1612 (2005), available at http://www.refworld.org/docid/43f308d6c.html, last seen on 30/03/2017 13 C182-Worst Forms of Child Labour Convention, 1999 (No. 182), International Labour Organisation, available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB: 12100:0::NO: :P12100_ILO_CODE:C182, last seen on 30/03/2017

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This depicts the critical state of affairs of the children who are encompassed with the hostilities. They not only engage in recruitment rather they are being used as a sexual objects by the armed groups which totally destroys the mental well-being of the child. International Criminal Law Article 8 of the Rome Statute for an International Criminal Court defines “conscription or enlisting children under the age of 15 years into the national armed forces or using them to participate actively in hostilities” as a war crime, whether the conflict is international or not. This article has been enacted so as to bind the state parties of the ICC Statute from this legal obligation and proscribe children under 15 years from inducted into both types of armed conflicts by declaring it as a war crime. Here, we see the ICC Statute describes such engagement in a wide manner including both types of conflicts applicable on national armed forces so that their mitigating factors can be introduced at national level by considering the rights of the child. However, the main concern here is that every state is not the party of the ICC Statute, so in order to curb the problem we must create awareness to request the states to ratify the statute so that individual criminal liability can be ascertained in violation of the provision which would have deterrent effect. Causes of Child Recruitment 1. Poverty is one of the main factors of child recruitment. If a child is brought up into a poor family background and is exposed to the harsh life at an early age to earn the bread for the family then it’s very easy for him to go to the wrong path and the easy way of making money because he don’t have a control and the proper guidance of the family. Thus, financial necessity becomes an important aspect. 2. Also the lack of education whether because of poor family background of any other reason if children don’t get the proper education then they will not be able to understand the right or wrong

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consequences as education plays a key role in the upbringing of a child. 3. ‘Food insecurity’ is another root cause which forces children to enter into the fight. Children are driven by the ‘greed’ factor as the groups associated in warfare or conflict provide them salary for their work and expose them to loot anyone. 4. Children get ready to offer themselves on cheap rates also; hence they are more susceptible to get recruited. 5. Most children join such groups because they are forced to enter into joining; sometimes they are abducted for the same. 6. Sometimes, children observes the large number of killings, cases of kidnapping, theft etc. during the process of transfer from one place to another as a part of discrimination policy on the grounds of race, religion, ethnicity, which pushes them to join the groups in order to take retaliation with the others. Child Soldiers in India According to the Annual Report 2002-03 of India’s Home Ministry, 14 out of 28 States are affected adversely by internal armed conflicts14. India has been facing multifarious conflicts in different parts of the country which affects the lives of the citizens miserably. These conflicts have witnessed growing number of child recruitment cases. The violation of the human rights of large number of children is supervised by security forces and the armed opposition groups in India. Thus, before going into the depth of the issue, it is pertinent to know some of the established facts about child soldiers in India. It becomes difficult in India, particularly in rural areas to obtain the organized data related to birth registration for verifying the ages of children. 14

The Status of Children in India: A Submission to the UN Committee on the Rights of the Child, (CRC/C/93/Add.5), Asian Centre for Human Rights, available at http:// www.childlineindia.org.in/CP-CR-Downloads/ACHR%20India%20Children%20Report.pdf, last seen on 01/04/2017

Issue of Child Soldiers in India 55

It further creates the possibility about the participation of the children under the age of 18 years who are participating actively in antagonism. There were active recruitment drives targeting ‘youths’, particularly in the Kashmir valley.15 Another attributed reason behind the alarming issue of child soldiering in India is that the Indian Army is not in the arms of the general provisions of law. Even the procedural laws are somewhat complex in case of armed forces which made the situation unfavourable for obtaining the reliable evidence as to the number of the child soldiers and the persons responsible for it. The Government of India provides immunity to persons of armed forces under Section 19716 of the Criminal Procedure Code, 1973 and Section 6 of the Armed Forces Special Powers Act, 1958.17 The armed forces are kept out of the purview of the National Human Rights Commission under section 19 of the Human Rights Protection Act, 1993, which implies that they cannot be directly held responsible for the violation of human rights.18 Despite the fact that the armed forces are primarily responsible for the internal armed conflict, these kinds of immunities are, sometimes, lead to ferocious atmosphere in the country. Another reason behind the problem of child soldiering is that the distinction between the law enforcement personnel and the armed opposition groups has become softened. It follows that some of the non-state armed groups in the name of government armed forces operate and validitate their existence. In Manipur, it was ostensible that the system and other necessary steps established and initiated under the Juvenile Justice Act 2000 was non15

Child Soldiers International, Child Soldiers Global Report 2008- India (20/05/2008), available at http://www.refworld.org/docid/486cb108c.html, last seen on 01/04/2017 16 Previous Sanction of the Central and the State Governments is necessary for the prosecution of Judges and public servants. 17 Section 6: Protection to Persons acting under Act – “No persecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” 18 The Status of Children in India: A Submission to the UN Committee on the Rights of the Child, (CRC/C/93/Add.5), Asian Centre for Human Rights, available at http:// www.childlineindia.org.in/CP-CR-Downloads/ACHR%20India%20Children%20Report.pdf, last seen on 02/04/2017

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working due to insufficient resources as no home for adolescents had been established till now, which requires serious consideration. Due to this problem, it was seen that the security forces who took into custody the children in subordinate operations were reportedly alleging them to be of more than 18 years. Resultantly, they make their places in the police station that is for adults exclusively. Another problem which the state faces is that the absence of birth certificates to prove their accurate age obstructed Human rights organizations attempting to direct individual cases of detained children on behalf of their parents. Decades of conflict resulted into a culture of ferocity/violence in Manipur, was said to be boosting the wants of children to handle weapons and join armed groups in the state to fight with the situation of ongoing conflict. In Chhattisgarh, a human rights organization during its visit in Dantewada district of March 2006 discovered that the children, including nine girls aged between 14 and 16, being recruited as SPOs. The girls mentioned that they were being given training in fighting tactics, as well as shooting techniques, and they were used as collaborator.19 The Union Home Ministry eventually issued directions that persons below 18 years old were not to be recruited. The Maoists claimed, ‘Bal Mandal’ their children’s division was not directly employed in armed conflict or warfare but that children were availed for other purposes, such as, messengers and informers. Nevertheless, they acknowledged that the military training was provided to prepare them for any situation.20 It was reported by Asian Centre for Human Rights in March 2006 on enlistment of children that: Adivasis people are the primary sufferers of the Salwa Judum Campaign21 (anti-insurgent operation). 19

The Adivasis of Chhattisgarh: Victims of Naxalite Movement and Salwa Judum Campaign, Asian Centre for Human Rights, available at https://www.achrweb.org/Review/2006/11706.htm, last seen on 03/04/2017 20 Anuj Chopra, Maoist rebels spread across rural India, Christian Science Monitor (22/08/ 2006), available at http://www.csmonitor.com/2006/0822/p06s01-wosc.html, last seen on 03/04/2017. 21 The Adivasis of Chhattisgarh: Victims of Naxalite Movement and Salwa Judum Campaign, Asian Centre for Human Rights, available at https://www.achrweb.org/Review/2006/11706.htm, last seen on 03/04/2017.

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Government of Chhattisgarh initiated this movement against Naxalites and it engaged many civilians including children in militia. The ongoing hostilities in Jammu and Kashmir have attracted serious concerns. It was alleged by the police authorities that around 200 children are missing, since the year 2004. Further, it was revealed by the authorities that most of these were children from poor and illiterate families who had been recruited by militants. Pakistan-based armed groups including the Jaishe-Mohammed and Harkat-ul-Mujahideen as well as the Hizbul Mujahideen are active in the state of J & K.22 Children in Jammu and Kashmir were said to be being brainwashed and recruited from schools and mosques. The major factors in the recruitment of children by armed groups were said to be lack of education and employment opportunities for the young. Report of the Secretary-General to the Security Council (A/69/ 926–S/2015/409) issued on 5 June 201523 The report highlighted the numerous instances concerning the child recruitment by naxalites. The cases of recruitment have been seen frequent in the regions of Bihar, Jharkhand, Odisha and Chhattisgarh. Report further stated that in Lakhisarai district of Bihar, Naxalites they ended up hiring 100 girls and boys, between 10 and 15 years of age. Similarly, in West Singhbhum district of Jharkhand also, there were the cases of child recruitment of 11 children. Thus, it can be contended that in India the government security forces, Naxalites and Maoists are enlisting the children during the conflict and exploiting them by depriving from their essential human rights. 22

Child Soldiers International, Child Soldiers Global Report 2008 - India (20/05/2008), available at: http://www.refworld.org/docid/486cb108c.html, last seen on 04/04/2017. 23 Report of the Secretary-General on Children and Armed Conflict, General Assembly, Sess. 70, U.N. Document A/70/836, 30, (20/04/2016) available at https://www.un.org/ga/search/ view_doc.asp?symbol=S/2016/360&referer=/english/&Lang=E, last seen on 04/04/ 2017.available at https://www.achrweb.org/reports/india/JJ-IndiasChildSoldiers2013.pdf, last seen on 05/04/2017

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Government of India Report, 2011 The Government of India submitted in its first report of 2011 on Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. In its periodic report, government specifically denied the cases of child recruitment in India by arguing that India does not face international or non-international armed conflict. In its periodic report to the UN Committee on the Rights of the Child, India stated: The minimum age for recruitment into the Armed Forces of India is 16½ years but this is relevant for training services. However, they are sent to operational field when they attain the age of 18 years but not before that.24 India’s Child Soldiers, Asian Centre for Human Rights, (2013), Also, the Government of India has also denied the applicability of some of the provisions of Optional Protocol on Rights of the Child, regarding forced recruitment and enlistment of children, the government in its periodic report denied the fact that there is forced recruitment in India. Government states that recruitment process to the armed forces (army, navy and air force) is voluntary; hence Article 2 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts25 does not apply in the Indian context.26 The eligible age of recruitment for becoming a jawan in the army is 18-42 years27 and thus, there is no case of child recruitment in the armed forces. However, the practical situation depicts something else. There are laws in India which permit the recruitment under the age of 18 years. In Madhya Pradesh Police Regulation, the recruitment of children is allowed as ‘byorderlies’28 under the age of 18 years and it has been provided under

24

India’s Child Soldiers, Asian Centre for Human Rights, (2013), available at https:// www.achrweb.org/reports/india/JJ-IndiasChildSoldiers2013.pdf, last seen on 05/04/2017 25 "States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.” 26 Supra 25 27 Ibid. 28 Madhya Pradesh Police Regulations, available at http://mppolice.gov.in/Static/HTML/ MPPRthree.htm, last seen on 21/04/2017.

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Section 60 of the said regulation29. On the same ground appointments have been made in the state of Chhattisgarh in the name of “Balarakshaks”. Although, this issue has been raised and complaint has been filed against such law before NCPCR but no action has been taken till now. On this complaint, the Government of Chhattisgarh alleged that such youths are working on behalf of their parents after their death due to illness or attacks by Maoists or persons having criminal background. It implies from the above provisions that the Government is also somehow practicing the policy of recruiting the children in jobs that is clearly in flagrant contravention of the supreme law of the land i.e., the Constitution of India, 1950 and other acts like Child Labour Act, 1986 and other international conventions on rights of the child. The Government of India also reported that the India is not facing with any kind of problems such as international and non-international armed conflict and the present statutes are sufficient to provide child care and protection during armed conflict. However, this statement is not correct because the internal armed conflict can easily be seen in the north-east states such as Manipur, Assam, Meghalaya and in Chhattisgarh, J&K, Jharkhand, and West Bengal. The shadow report presented by the ACHR in 2013 clearly reveals that the Government of India, despite knowing the ground reality, tried to escape from it at the international forum. On this issue, Mr. Suhas Chakma, Director of ACHR said, “This position of the Government of India is not only bizarre but also a case where the Government is actually defending the records of the armed groups on recruitment of child soldiers before the UN Committee on the Rights of the Child. India effectively protected the officially designated terror groups from condemnation of the UN Committee on the Rights of the Child for the recruitment of child soldiers, a war crime under the international law.” 29

"Superintendents may give a certain number of appointments as constables to boys under the age of 18. They are known as “orderlies”, and receive half the pay of an ordinary constable. In making these appointments preference should always be given to sons or relatives of police officers, or of men who have rendered good service to Government. As soon as a boy- orderly satisfies the conditions laid down in the first vacancy that occurs.”

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He further stated that the problem of child recruitment is pervasive in some parts of India and at least 3,000 children are involved in armed conflict.30 In April 2012, the Police arrested three suspected member of the People’s Revolutionary Party of Kangleipak (PREPAK) among others for recruiting one Aheibam Johnson, 16 years, son of Late A Ebochou of Takyel Kolom Leikai, Manipur and handing him over to an armed group for training.31 The ground realities as well as available data on the basis of the above reports depicts the idea that the children are primary victims during the internal armed conflict in some of the states of India where they sent for military tactics, warfare techniques etc. as they can be easily propagandized for any purpose on the basis of high pay. Looking Forward “Curb the illicit flow of small arms and light weapons and protect children from landmines, unexploded ordnances, and other war material that victimize them…” A World Fit for Children, section 44, paragraph 26 Generic Guidelines to end the practice of “Child Soldiers”: 1. It is recommended that the domestic laws of the nations should provide for permanent monitoring authorities in every state. 2. It is suggested that Section 60 of the Madhya Pradesh Police Regulation and similar provision in Chhattisgarh which provides for Boy-orderlies should be struck down. 32 Furthermore, the law exempting the applicability of the Human Rights Act should be modified by including the action of armed forces so that human rights of the civilians cannot be subject to infringement. Furthermore, the necessity of obtaining the permission of government for criminal 30

Bijay Sankar Bora, India’s shame: 3,000 child soldiers involved in armed conflicts, The Tribune (15/05/2013), available at http://www.tribuneindia.com/2013/20130517/main6.htm, last seen on 08/04/2017. 31 India’s Child Soldiers, Asian Centre for Human Rights (2013), available at https:// www.achrweb.org/reports/india/JJ-IndiasChildSoldiers2013.pdf, last seen on 08/04/2017 32 Ibid.

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prosecutions against armed force members should be abolished in order to align with the provisions of international human rights and humanitarian law. 3. In order to criminalize the enlistment and recruitment of children, government along with the NGOs should organize the awareness campaign for the citizen of its nation. 4. Often, children take the recruitment in armed groups on a positive remark, hence it is necessary to unmask the idea that it is not like other profession. 5. The rehabilitation policies to provide for disarmament, demobilization and reintegration of the child soldiers should be developed in a modified way so as to adopt the changing factors of the society. 6. Nation should establish the means of physical, psychological and moral rehabilitation to child, especially in post-conflict situations.

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Concluding Observations Issue of child soldiering has gained the impetus worldwide. It has raised drastic issues of non-implementation of the international conventions related to the rights of the child and violation of international human rights and humanitarian law. However, the conditions show that problems of territorial dominion and terrorism in India are rampant. Consequently, the recruitment of children in these areas becomes a major concern which reveals that the legal support is not in alignment with the provisions of the international conventions. The attributed reason behind child soldiering is that the governments fail to punish those who recruit the child in the absence of strong laws and policies. The countries, where ongoing conflicts, either international or internal, are continue, children are remain to be voiceless and prime victims due to lack of political will, awareness, resources and poor education system, poverty, which demands special concern for monitoring and assessment. The child soldiers have captured the horrors of war in many countries; hence only through international cooperation and effective implementation of laws and policies, children can be safeguarded from the consequences of war. However, it is to be noted that the present study may be relevant for providing blue print to the policy recommendations. The intercession by formulating the policy on the issue is the need of an hour by taking into consideration the situation and recommendations of the present study. While formulating the scheme, one must take into account the re-integration and rehabilitation plans and gauging factors for creating the ministration.

6

Child Pornography: A Socio Legal Perspective with a Special Focus on India Upasana Pandey and Debarpita Pande

Abstract Child pornography has always remained as a hush-hush topic in the Indian society. The social stigma associated with it makes the situation worse. It is no less than a social disaster which is ruining the physiological as well as psychological condition of children throughout the globe and hence various international measures were instrumented to curb this which has been discussed by the authors in brief as these provisions have been instrumental in bringing about a change in the Indian legal scenario. India being the second largest populated nation in the world harbours this menace called child pornography at rampant .This paper has made an endeavour to throw light on the rapid spread of child sexual abuse through child pornography in India and has critically analysed the various laws of this country which have been enacted in the past few years to check the spread of the same. Indian laws like the Information Technology Act, 2000 which has been amended in 2008 and the Protection of Children from Sexual Offences Act, 2012 have came as a messiah for the exploited children groping in the dark but still they have some shortcomings within them. This article mainly analyses the present situation in India with regard to child pornography and has also tried its best to establish the link between child pornography and child sex abuse.

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Protection of Child Rights in India: An Uncertain Future

Introduction There has been a much-needed growth of awareness regarding the sexual exploitation of the children in the last two or three decades and it has gained significant government and media attention. Time and again the term “child pornography” has come across us and the relation of sexual abuse and molestation cannot be denied with it.1 Interpol has given the definition of child pornography as– ‘…. any means of depicting or promoting the sexual exploitation of a child, including written or audio material, which focuses on the child’s sexual behaviour or genitals’.2 This definition clearly includes materials which are non-images within the ambit of child pornography. So, keeping this definition in mind we can say that three forms of child pornographic materials are available which includes visual representation, written representation and audio representation.3 With the advent of the internet the spread of child pornographic videos and images has received a tremendous boost as the internet has acted as an interface through which child pornography can be accessed. The term child pornography is an oxymoron and is very controversial. It has been argued that child pornography is actually not pornography at all but is rather a representation of exploitation, rape, abuse and agony of children. Consent is the most important aspect in modern pornography and consensual activity is presupposed in it.4 But one of the most crucial and innate characteristics of child pornography is the disparity of power between the child and the adult who produces the pornographic material. This leads us to believe that exploitation of the child has happened and usage of the term child pornography is not correct.5 However, in many cases it has been seen that the image of a child has been digitally blended with that of an adult or has been put within a sexualized context. In these kinds of 1

Alisdair A. Gillespie,Child Pornography Law and Policy (1 stedn, Routledge 2011) 2 John Carr, ‘Theme paper on child pornography for the 2nd World Congress on Commercial Sexual ExploitationofChildren’ accessed 15 January 2017. 3 Gillespie (n 1) 19 4 Gillespie (n 1) 2 5 Max Taylor and Ethel Quayle, Child Pornography: An Internet Crime (1 stedn, BrunnerRoutledge 2003) 2. 2

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cases it will not be correct to assert that the child in question has been abused literally. Instead of that it is more practical to say that the child has been exploited in those pictures. So it can be put forward that instead of using the term ‘child pornography’, the term ‘child exploitive material’ can be used. However in this article the authors will use the term ‘child pornography’ as it is the most frequently used term and many of the national and international legal instruments use this term only for convenience. In India the Information Technology Act, 2000 (hereinafter referred to as “IT Act”) which has been amended in 2008 and the Protection of Children from Sexual Offences Act, 2012(hereinafter referred to as “POCSO Act”) deals with the issue of child pornography particularly and they define child as an individual who has not completed 18 years of age.6 Thus these Acts are in consonance with Article 1 of the United Nations Convention on the Rights of the Child (hereinafter referred to as “UNCRC”) which states that a child is someone who is below the age of 18 years. This article has mainly focused on the concept that is child pornography and has analysed how this evil has been tackled by the international provisions as well as by the various legal provisions of India. International Provisions Related to Child Pornography Child pornography, sexual abuse of children and sexual exploitation of children are problems which need international attention. By using the medium of internet and also through cables and satellites these problems have affected each and every level of our society and have reached almost every nook and corner of the world. The problem of child pornography specially has posed itself as a huge threat to the young innocent children who should be in school and who should be studying so that they can contribute to our society in the future. In a way, it can be said that these problems have the capability to ruin the future of the children of this world by polluting their young impressionable minds in the worst way possible. Incidents of recording sexual activities with a child for commercial sale 6

The Information Technology (Amendment) Act 2008, s 67B; the Protection of Children from Sexual Offences Act 2012, s 2(d)

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can traumatize the child and can do irreparable damage to his or her health and mental state. Often children trafficked for sex slavery in the developing countries end up being the victims of child pornography and a large number of them also try to end their lives voluntarily. As the problem of child pornography, child sexual abuse and exploitation has become an international concern, the solution must also be an international one.7Sexual abuse of children should in no way be tolerated in any part of the world under any condition. Each and every child is a human being and that too a young one who needs special care and protection. They have every right to be treated with respect and dignity. After the devastating effect of the Second World War when the idea of human rights was on the verge of extinction the United Nations was established in the year 1945 which played a huge role in the reinstating man’s faith in humanity. But the problem of child pornography did not get prominence on the international agendas till the 1990s.8 The United Nations played a pivotal role in curbing the spread of child pornography across the world. UNCRC is the first international document concerning child rights which is legally binding and it has been almost universally ratified. This convention came up with Article 34 which became the ship to be sailed for curbing this menace of child pornography. Article 34 (c) of UNCRC being binding mandates the member states to take propitious expedient actions both nationally and internationally to prohibit the exploitation and abuse of children in the cruel hands of pornographic activities and substances as it violates the holistic idea of child rights. The severity of child pornography is in no way lesser than the severity of child sexual abuse and maltreatment and the relation of child sexual abuse and child pornography cannot be denied. This dreadful phenomenon of child pornography is also a sheer violation of every right enshrined in the Article 32 (1) of the UNCRC which incorporates a safeguard to the child’s health and it is again attacked by the use of children in pornographic enterprises 7

UNESCO Experts meeting on: Sexual Abuse of Children, Child Pornography and Paedophilia on the Internet: an International Challenge (18-19 January 1999) CII-98/ CONF. 605/l (E). 8 Gillespie (n 1) 287

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wherein misusing children before their sexual maturity may lead to serious health issues. A child’s mental health is also kept at stake when he or she is used as a sexual object. Moral and social pressure is also built on them where they are condemned and ostracized by the society leading to a void educational future. Involvement of children in pornographic activities leads to atrocious behaviour towards them demeaning their primary dignity and liberty hence deviating from the core aims and ideas expressed in Articles 37(a), 37(b) and 37(c) of the UNCRC. UNCRC’s prime provision which is of relevance here is Article 34 which has been mentioned above. But Article 34 of UNCRC is limited to certain circumstances. Article 34 lists the circumstances as follows: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials. Even though the term child pornography is explicitly mentioned in UNCRC, it does not give a precise definition of it. For instance, in Article 34(c) there is a prerequisite of ‘exploitive use’ of children but a proper definition of the word ‘exploitive’ is not given in this context.9 Over the time need was felt for a new instrument and in the year 2000 the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (herein after referred to as “Optional Protocol”) was adopted and opened for ratification. One of the major differences between the Optional Protocol and UNCRC is the definitions which are much more detailed than the ones in UNCRC.10 The Optional Protocol not only gives a precise definition of child pornography but it also gives directions to the member states to perform various types

9

Gillespie (n 1) 290 ibid.

10

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of actions so that children are not exploited. For example, Article 6 of the Optional Protocol mandates that the states must cooperate with each other in investigations and should facilitate extradition. Furthermore, Article 7 of the Optional Protocol also provides that goods and substances which are used to commit or encourage offences under the Optional Protocol should be forfeited. This article can be very beneficial in the context of child pornography as it can prevent re victimization of the child. Child pornography should not be dealt in isolation and should be deliberated upon by taking into consideration the social and economic conditions of a country. Poverty, unemployment, illiteracy, inequality of opportunities and failure of the justice delivery system to provide justice to the economically weaker section of the society promote child pornography by forcing the child to fend for himself or herself and in most of the cases the child gets trapped in the vicious cycle of sexual abuse, sexual exploitation and pornography from which he or she cannot come out. Article 10 of the Optional Protocol thus makes it essential for the member states to foster international cooperation so that the root causes of ‘.... sale of children, child prostitution, child pornography and child sex tourism’ can be addressed and eliminated. Relation between Child Pornography and Child Sex Abuse The debate concerning the relation between child sex abuse crimes and child pornography is never ending. The prime reason of the debate is the inability of the researchers to conduct the research in a proper laboratory where scientific methods can be used to yield proper statistically correct results. The possession of child pornography by the child molesters is not uncommon.11 Some social scientists and researchers believe that a conclusion cannot be drawn that viewing or watching can result into sexual exploitation and abuse of children. Others are of the view that child pornography exposure and sexual aggressiveness is correlated. In 2007, a new study of the US 11

Margaret A Healy, ‘Child pornography: an international perspective’ (2004) < http:// www.crime-research.org/articles/536 > accessed 22 January 2017.

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Government suggested that 85% of the men who view and download child pornographic materials were sexual abusers of minors. The Federal Bureau of Prison ordered that the paper where the study was discussed should be withdrawn from the academic journal where it was published.12However it will be impractical to say that all individuals who collect or possess child pornography can be categorized as paedophiles and all paedophiles that keep and view child pornography go around molesting children. Sometimes the generalization of various researches which are conducted on limited number of individuals may lead to incorrect conclusions and it will be unwise to regard the results as a paradigm for the overall population of the world.13 Child Pornography: The Situation in India Child pornography is one of the most acute and pressing problems in present- day India. One of the earliest accounts of child pornography in India was highlighted in the year 1991 when Freddy Peats who used to run a child pornography racket in Goa through his orphanage was arrested.14Among many other things he was convicted for possession of 2305 child pornographic images, for prostituting children and for exploiting them sexually. Unearthing this case should have tipped off the officials that a well constructed system existed but they disregarded the importance of the case by calling it an aberration.15 The National Crime Records Bureau (hereinafter referred to as “NCRB”) which is the national reservoir of crime data has started furnishing 12

Julian Sherand Benedict Carey, ‘Debate on Child Pornography’s Link to Molesting’ The New York Times (United States, 19 July 2007) < http://www.nytimes.com/20 07/07/19/us/19sex.html > accessed 22 January 2017 13 ibid. 14 Kiran Tare, ‘Act on Paedophilia’ India Today (6 April 2011) accessed 24 January 2017. 15 ‘Child Pornography and Tourism’ (2010) Working Paper Series 2009-2010 accessed 25 January 2017

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POCSO Act- related data from the year 2014 only.16In the year 2015, 14913 cases were registered under the POCSO Act as per NCRB which is about 6009 more cases than what was recorded under NCRB in 2014. These comprise cases of sexual assault, child pornography, forced sexual intercourse and sexual harassment.17 In 2015 a 140 percent rise in reports of children being exploited through child sex abuse imagery on the internet was recorded by NCRB. 18Most of the time, the street children or the children from families who are not well off become victims of child pornography. These vulnerable children often become the victims of foul play by foreigners who show them dreams of a better life and allure them into the world of pornography. With the advent of the internet and the frequent use of the web in India the child pornography world has seen an explosion like never before.19 Nowadays internet can be accessed through various electronic devices like smart phones, laptops, computers etc. Easy accessibility of pornographic materials, especially the ones which involve children, through these devices has the potential of demolishing the very fabric of our society by affecting the pliable young minds of our nation in a negative way. Depression, isolation from the society, gradual loss of interest in career, decreased productivity is some of the common effects of pornography. Children have a knack of imitating actions which they see on the television or on some videos or images over the internet. The possibility of them imitating actions which they see in the form of child pornography on the internet cannot be ruled out and these can affect their mental as well as physical health in the worst way possible. Child 16

Devanik Saha, ‘Why have child rapes soared 151% In 5 years ‘The News Minute (22 August 2015) accessed 26 January 2017. 17 Monalisa Das, ‘95 % offenders accused of child rape know their victims: NCRB’ The News Minute (31 August 2016) < http://www.thenew sminute.com/article/95-offendersaccused-child-rape-know-their-victims-ncrb-49153 > accessed 26 January 2017. 18 Harish V Nair, ‘Government ropes in Interpol to help crackdown on child pornography’ India Today (New Delhi, 15 December 2016) < http://indiatoday.intoday.in/story/child pornography-sexual-abuse-internet-interpol-crackdown/1/834815.html > accessed 27 January 2017. 19 Enakshi GangulyThukral (ed), Children in Globalising India: Challenging Our Conscience (1 stedn, HAQ: Centre for Child Rights 2002) 253.

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pornography is becoming a serious threat in present-day India which can no longer be ignored as it has the potential to destroy the country’s social fibre. In December 2016, the Indian Railways with Google’s partnership finished providing free Wi-Fi in 100 stations of the country. It has also planned to equip 400 important stations with free Wi-Fi by the end of 2017.20 But this facility is being misused throughout India by downloading explicit content from the porn sites. A survey by RailTel, the Government of India venture for providing Virtual Private Network and broadband facilities, revealed that Patna Junction holds the topmost position for porn site searches through the internet.21According to government data Amritsar emerged as the top city in India among the ten worst cities sharing child pornographic materials by sharing more than 4.3 lakhs of the same from July 1, 2016 to January 15, 2017. The capital of India, Delhi was second in the list and Lucknow occupied the third position.22However, recently India saw a small ray of hope after it got its first hotline to tackle and put a check on the sexual exploitation and abuse of children and to eradicate the plague of online child pornography. This hotline will help any individual to report images and videos of child sexual abuse in an anonymous manner and will thus pave the way for a safe and secure online environment for the children of India.23

20

PTI, ‘Free Wi-Fi service now available at 100 railway stations across India, 400 stations to be covered next year ‘Economic Times (New Delhi, 27 December 2016) accessed 28 January 2017. 21 TNN, ‘After Topping India In Watching Porn Over Free Wi-Fi, Porn Sites Blocked From Patna Junction ‘India Times (26 October 2016) accessed 28 January 2017. 22 Himanshi Dhawan, ‘After Drug Menace In Punjab, Now Amritsar Becomes India’s Lead er In Sharing Child Porn’ India Times (22 January 2017) accessed 28 January 2017. 23 ‘Hotline to curb child pornography’ The Hindu (New Delhi, 14 September 2016) accessed 28 January 2017

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Child Pornography and the Indian Legal Scenario Each and every child born in India is by birth a citizen of India and the Indian Constitution guarantees basic human rights to each of its citizens. India has signed and ratified the UNCRC in the year 1992 and the Indian Constitution incorporates some of the rights included in the UNCRC as the Directive Principles of State Policy and Fundamental Rights. India has also signed and ratified the Optional Protocol to UNCRC on the sale of children, child prostitution and child pornography.24 The matter of child pornography did not receive the amount of attention as was required in the Indian legal Scenario until recently. The Indecent Representation of Women’s (Prohibition) Act, 1986, The Indian Post Office Act, 1898 and the Indian Penal Code, 1860(hereinafter referred to as “IPC”) have been used for dealing with cases which involved obscene materials in India. These legislations are not at all at par with the international law and fall short on their effectiveness as they do not include audio materials and digitally morphed images into their purview.25 Moreover, the IPC which is the prime criminal statute of the country does not differentiate between an adult and a child victim. Another act which deserves mention here is The Young Persons (Harmful Publications) Act, 1956. This act addresses the issue of materials which are pornographic and which affect and involve children. Article 2 of this act give the definition of ‘harmful publication’ and states that it can mean ‘any book, magazine, pamphlet, leaflet, newspaper or other like publication which consists of stories told with the aid of pictures or without the aid of pictures or wholly in pictures, being stories portraying wholly or mainly-(i) the commission of offences; or (ii) acts of violence or cruelty; or (iii) incidents of a repulsive or horrible nature.’ However, this act has lost its relevance now as according to section 2(c) of this act a ‘young person’ is someone who is under the age of 20 years and this is inconsistent with various other legislations in India which define the age of majority. Also, the enactment of the POCSO Act has diminished 24

Enakshi Ganguly Thukral and Parul Thukral, India Child Rights Index (1 stedn, HAQ: Centre for Child Rights 2011) 23-24. 25 ‘Child Pornography and Tourism’ (n 12) 60

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the value of The Young Persons (Harmful Publications) Act, 1956 as the POCSO Act protects children from analogous harmful publications. The Lok Sabha has recently introduced the Repealing and Amending Bill 2017 which plans to repeal The Young Persons (Harmful Publications) Act, 1956 along with 104 other Acts of India which have lost their relevance.26 To further the objectives of UNCRC in India after its ratification many of the crucial legislations of this nation was amended with a focus of the children of the country.27 To tame the massive cyber world the IT Act was passed and section 67 of the Act made publication and transmission of obscene information punishable if it is in an electronic form. This act is similar in approach with section 292 of the IPC while defining ‘Obscenity’. But unfortunately the word “child pornography” was not mentioned specifically in this Act. In the year 2004, the nation was shocked when an MMS containing pornographic contents of two school children of DPS R. K. Puram surfaced and it infamously became known as the DPS MMS Scandal by the media. This case highlighted the lacuna of the IT Act and an urgent need for its amendment was felt.28 India’s cyber sphere saw a positive change in the year 2009 when the Information Technology (Amendment) Act, 2008 became operational and it included section 67B in the IT Act which dealt with punishment for publication or transmission of any material portraying children involved in sexually explicit act in the electronic firm. Section 67B not only prohibits creation, promotion, transmission, collection, exchange and advertisement of child pornographic material but explicitly states that browsing, downloading and distributing of the same are also illegal. Therefore making an MMS containing child pornography and distributing the same through cell phones and other forms of electronic medium automatically comes under the purview of this Act. But this section does not cover any material in electronic form used just for public good or for the advancement and interest for the education. 26

‘Cabinet approves introduction of Bill to repeal redundant laws’ The Hindu Business Line (New Delhi, 18January2017) accessed 20 January 2017. 27 Thukral and Thukral (n 18) 28 Avnish Bajaj vs. State (NCT) Of Delhi (2005) 3 CompLJ 364 (Del)

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Also bona fide heritage materials and materials used for religious purposes are exempted from section 67, 67A and 67B of the amended IT Act. Under section 67B of the amended IT Act if someone is convicted for the first time then that person may be imprisoned up to a term of five years and may be fined up to ten lakhs. If the person is convicted second time then the imprisonment term may extend up to seven years and also a fine of ten lakhs can be levied. The Information Technology (Amendment) Act, 2008 considers that a child is someone who is below eighteen years of age under section 67B. This act is in congruence with UNCRC regarding the age of the child. Intermediary liability in case of obscene and objectionable content on the internet surfaced as an important issue in India with the case of Avnish Bajaj vs. State29 which dealt with the “DPS MMS Scandal”. The case involved selling of a video clip which contains sexual acts by two seventeen year old children of the DPS School of R. K. Puram, Delhi. This clip was listed up for sale on baazee.com which was a website owned by EBay. Baazee.com was an online platform which facilitated buying and selling of product. A person named Ravi Raj who was responsible for the listing of the video for sale was arrested along with the managing director of baazee.com Avnish Bajaj. This case prompted the amendment of the IT Act where the liability of the intermediary was limited.30In the Report of the Expert Committee on ‘Proposed Amendments to Information Technology Act, 2000’ it is mentioned that EU directives on E-commerce is the guiding light for the intermediary liability policy of India. After the amendment intermediaries were protected from the liability under the IT Act as well as under ‘any law for the time being in force’.31 Before the amendment the intermediaries were protected from the liability only under the IT Act32 and not any other law in India. But it has also been provided under section 79 (2) (c) of the amended IT Act that the intermediary must observe ‘‘due diligence while carrying its duties’’. Section 79 (3) (b) of the amended IT Act is of 29

ibid. ibid. 31 The Information Technology (Amendment) Act 2008, s 79 (1) 32 The Information Technology Act 2000, s 79 30

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paramount importance from the point of view of prevention of child pornography as it has been clearly mentioned in the section that if the intermediary fails to remove or disable the objectionable material even after having actual knowledge or even after being notified by the Government then it cannot escape liability. Intermediaries have to observe ‘due diligence’ means that intermediaries have to remove any kind of content which is grossly harmful, obscene, blasphemous, defamatory, pornographic, paedophilic and illegal from its system within a span of thirty six hours of receiving knowledge of the same.33 There has been a huge hue and cry regarding the Information Technology (Intermediaries guidelines) Rules, 2011 because according to many it is contrary to the ‘Right to Freedom Expression’.34 But as far as prevention of child pornography is concerned these rules have been a huge relief. After the amendment of the IT Act, the POCSO Act further strengthened the barrier against child pornography in India. One of the most praiseworthy features of the POCSO Act is its gender neutrality. This Act provides harsh punishment to any individual who uses a child for the purpose of pornography in any type or form of media, irrespective of whether it is for personal use or distribution.35 In case of first conviction the person is liable for both fine and an imprisonment which may extend to five years. In case of second conviction the imprisonment can extend to seven years and the individual can also be fined.36This Act also provides punishment if any individual abets or attempts to commit an offence which is described in it.37 Even storing child pornographic material for commercial purposes is punishable under it.38 POCSO Act’s provision for formation of special courts to ensure speedy justice provides a great solace to the child victim who in many cases is the only witness who is available. These special courts formed by the POCSO Act are entitled to try offences related 33

Information Technology (Intermediaries guidelines) Rules 2011, ss 3 (2) (b) and 3 (4) Constitution of India 1950, art 19 (1) (a) 35 The Protection of Children from Sexual Offences Act 2012, s 13 36 The Protection of Children from Sexual Offences Act 2012, s 14 37 The Protection of Children from Sexual Offences Act 2012, ss 17 and 18 38 The Protection of Children from Sexual Offences Act 2012, s 15 34

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to 67 B of the IT Act. One year is the maximum time from the date of taking cognizance of the offence within which a case of child sexual abuse should be disposed of in the special court according to this Act.39 Other than this special credit can be given to this Act for incorporating various child-friendly procedures during the various stages of trial of the offences. In 2015-2016 the capital of India i.e., Delhi had only 25% of its registered child sexual abuse cases disposed. 40According to Delhi State Legal Services Authority conviction rate in Delhi in the year 2015 was merely 19.65%.41Recently, in the month of January the news of Sunil Rastogi who has sexually assaulted around 500 minor girls during the last 10 years shook the whole nation and highlighted yet again the flaws in the laws of this country.42 Following the arrest of Rastogi the Government is considering the idea of setting up a National Sex Offenders’ Registry which will provide all the information of the offender like address, fingerprint, photo, DNA samples etc. But this is not a solution to the issue of child sexual assault in India as the conviction rate in India is truly poor and the National Offenders’ Registry will only feature a name of a person if he or she has been convicted at least once.43 Another notable case with regard to child pornography in India is the case of James Kirk Jones who is a U.S. citizen resident in Hyderabad. The police in January 2017 retrieved from his laptop around 29288 files containing child sexual abuse materials 39

The Protection of Children from Sexual Offences Act 2012, s 35 Siddhanta Mishra, ‘Sex in the city: Paedophiles on the rise’ The Indian Express (22 January 2017) accessed 26 January 2017. 41 Aneesha Mathur, ‘Delhi: Many POCSO cases pending due to infrastructure defic iencies, say judges’ The Ind ian Express (New Delhi, 25 October 2016) < http:// in dianexpress. com/article/cities/delhi/delh i-m an y-pocso-cases-pen din g-due-toinfrastructure-deficiencies-say-judges-3101421/> accessed 27 January 2017. 42 Amit Bhardwaj, ‘Is India ready for A Sex Offender Registry?’ News Laundry (24 January 2017) accessed 27 January 2017. 43 Puja Marwaha, ‘A sex offenders’ registry can only work with proper filing of cases of child abuse’ Hind u stan Times (2 0 J anuary 201 7) < http:// www.hindustantimes.com/analysis/a-sex-offenders-registry-can-only-work-with-properfiling-of-cases-of-child-abuse/story-f6smNRPwuPOPTwlIeLUppL.html > accessed 27 January 2017. 40

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and also found around 490 Giga Tribe profiles and 24 profiles in Twitter through which he used to share these kinds of materials. He became the first individual in India who was put behind bars by using 67A and 67B of the amended IT Act, 2000.44 But this was not the first instance in India where section 67B of the IT Act, 2000 was invoked. On November 6, 2009, the first FIR under section 67B of the IT Act was lodged. But the accused was granted bail on Feb 9, 2010 as the police failed to file the charge sheet within the prescribed time.45 and again the failure of the officials to evaluate the severity of the situation in India with regard to child pornography has yielded its fruit as the James Kirk Jones case, the Sunil Rastogi case and has encouraged many other cases like this to strengthen their foothold in India. The irony of the fact is that it took India nine years even after the amendment of the IT Act in 2008 to put someone behind the bars by using it. The Ban Story In July, 2015 while dealing with a Public Interest Litigation filed by advocate Kamlesh Vaswani which propounded the idea of blocking all pornography websites in India, the then Chief Justice of India H. L. Dattu said that banning of viewing pornographic content inside one’s room is a violation of Article 21 of the Indian Constitution which talks about right to life and right to personal liberty. He also said that the issue was a serious one and he was keen to see the steps which the Centre would take regarding this matter. So, after Supreme Court’s (hereinafter referred to as “SC”) denial to put a ban on pornographic websites, on August, 2015 the Government of India banned access to 857 websites which according to the government were pornographic. A huge hue and cry all over the country on the ground that government cannot meddle in individual choice forced the Indian government to lift the ban partially the next day. However, 44

‘US citizen in dock for sharing child porn’ The Indian Express (22 March 2017) accessed 26 March 2017. 45 Vakul Sharma, Information Technology Law and Practice (3 rdedn, Universal Law Publishing Co 2011) 220

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Government ordered the Internet Service Providers (hereinafter referred to as “ISP”) to block only those pornographic websites which promote child pornography but the real problem was with the fact that ISPs do not have the technology or mechanism which is needed to segregate and filter out child pornography from other forms of pornography.46The SC said that liberty47 and freedom of speech and expression48were absolutely unjustified when the situation involved innocent children falling prey to child pornography.49 The National Democratic Alliance government acting as per the SC orders of January 2016 has collaborated with Interpol to control the child pornography massacre in India. The Interpol has been given the work by United Nations General Assembly in 2009 of maintaining and dispersing a global list of Uniform Resource Locators (herein referred to as “URL”) which accommodate websites that post the worst form child pornographic materials. The Interpol is going to provide to the Department of Telecommunications lists maintained by it which contain domain names of those websites which host child pornography contents in its worst form possible. After that the ISPs will be ordered to immediately disable and remove those.50 But even after all these steps the problem of tackling child pornography successfully remains a problem as it is impossible to track every URL containing child pornography. Also, it is not possible to keep a track of all the sub-links of the URLs which are available in different names. Moreover, if 1 crore child pornography sites are blocked, 1crore more will pop up. Lacunas of the Indian Laws with regard to Child Pornography Child pornography is very much connected with child prostitution, child 46

Leo Mirani, ‘India has lifted its online porn ban—but ISPs are going to keep blocking it anyway’ Quartz India (5 August 2015) accessed 23 January 2017. 47 Constitution of India 1950, art 21 48 Constitution of India 1950, art 19 (1) (a) 49 ‘SC asks Centre to suggest measures to ban child pornography’ The News Minute (26 February 2016) accessed 23 January 2017. 50 Nair (n 13)

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trafficking and child sex tourism.51 Sex tourism specifically has become a major concern all over the world and India still lacks the infrastructure and administrative support to tackle it.52 Images of child sexual abuse are used, produced, exchanged and collected by the child sex tourists very often. In most of the cases, the adult sex tourist records the video of the child where the sexual abuse of the child is shown at the tourist’s destination. These videos are then shared for other child pornography customers or kept for personal viewing.53 In this way, sex tourism facilitates the production and consumption of child pornography. Unfortunately, India still does not have a specific law on the issue of sexual exploitation of the children through tourism. The Goa Children’s Act, 2003 which was amended in 2005 can be a model for India in this regard. The Goa Children’s Act, 2003 was the first legislation in India that acknowledged that tourism can a play a part in the exploitation of the children and advocated to protect the children of Goa by keeping their best interests in mind.54Also the visa rules of India do not make it mandatory to declare the past criminal records of individuals who are entering India. On top of this, 2014 saw India initiating the Visa-on-arrival Scheme which had no regard for the past criminal records of the person. India can take a cue in this regard from Philippines which do not allow registered sex offenders to enter their territory.55 Moreover, the POCSO Act does not deal with any preventive measure with regard to the protection of the child against child pornography and it only talks about protection of the child once the offence has been 51

UNCHR, ‘The Report by Special Rapporteur Juan Miguel Petit 2005/78’ (2004) UN Doc E/CN.4/2005/78 52 Geetika Mantri, ‘Maneka is right a bout visa regulation for child sex offenders, and MEA should listen’The News Minute (25 January 2017) accessed 31 January 2017. 53 Combating Child Sex Tourism (1 stedn, ECPAT International 2008) 21. 54 Rights of the Child in the Context of Tourism-A Compilation (2 nd edn, EQUATIONS 2008) 26 55 Mantri (n 33)

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committed. Also, not much attention is given by this act on the collaboration which should be there between agencies which are specialised to maintain law and order in the society and the social organisations to prevent traumatisation of the victimized child. Inspiration can be drawn in this regard from18 U.S. Code § 3509 of United States Federal Legislation which provides provisions for collaboration between these two during the process of trial and investigation, so that the child can be saved from retraumatisation throughout the entire process. Unfortunately the fight against child pornography still has a long way to go due to the fact that the amended IT Act which deals with online child pornography does not contain the term ‘child pornography’ as was suggested by an Expert Committee and in the final draft of Information Technology (Amendment) Bill 2007 the term ‘child pornography’ was replaced with the words ‘sexually explicit act’.56Thus the scope of the particular section was curtailed.57 It is really disheartening to see that even after the ratification of the United Nations Convention on the Rights of the Child, 1989 India has taken almost two decades to form proper laws which can curb this epidemic called child pornography. The various loopholes which are present in the legislations of India which deals with child pornography should be taken care of without any further delay as each and every day is vital when the question of the safety of our nation’s children is concerned. Conclusion In this chapter the authors have tried to analyse the different laws which are present in India to curb this evil called child pornography and have thrown the spotlight on the different international provisions which are acting as a barrier against it. Further the authors have also tried to analyse the present situation in India with regard to child pornography and have discussed briefly whether child pornography plays any part in the commission of child sex abuse crimes or not.

56

The Information Technology (Amendment) Act 2008, s 67B Unholy Nexus - Male Child Sexual Exploitation in Pilgrim Tourism Sites in India (1 st edn, Equations 2008) 31.

57

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The problem of child pornography has been there for thousands of years but law has begun to give importance to it only in the last 30 years. The advent of the internet has helped similar kind of people to come together easily and this has facilitated the proliferation of child pornographic materials. It is fairly easy nowadays to upload and share a video on the internet and within seconds it can spread like forest fire in different platforms like social media, websites etc. The process is much quicker than before as almost all the smart phones have inbuilt high quality cameras and a high level of computer processing power. Every other day we read about reports of crimes related to child pornography in the newspaper even after the fact that law enforcement agencies with the help of law and technology are constantly fighting against it.58 However, blocking access to websites which contain pornographic content by ISPs and other Electronic Service Providers has improved the situation to some extent. But the technology of blocking cannot act as a real obstacle to the person who is hell bent to download, view or share child pornographic materials. For instance, a person who has a flair for technological technicalities can easily use the overseas server by logging onto it or can effortlessly share photographs through peer-to-peer networks and closed groups. Nonetheless, it cannot be denied that blocking plays a vital role to prevent the regular domestic user from child pornography exposure.59 To fight child pornography the law enforcement agencies in India must remain a step ahead of the paedophiles by deploying advanced technologies and should collaborate extensively with national and international research organisations to develop new technologies which can detect child pornography and eliminate it. In this regard India can take a cue from European Union’s Safer Internet Programme which has given funds for the two year I-Dash programme which is developing a set of tools that have the capability to recognise child pornography by filtering out irrelevant and unnecessary materials. It is basically a set of integrated tools which can handle thousand hours of 58 59

Gillespie (n 1) 361 John Carr and Zoe Hilton, ‘Combating Child Abuse Images on the Internet: international perspectives’ in Julia Davidson and Petter Gottschalk (eds), Internet Child Abuse: Current Research and Policy (Routledge 2011) 67-68.

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child pornographic videos. The I-Dash programme is establishing a database that will contain video fingerprints of previously known child pornography and in this way help the investigating agencies to segregate and filter out data.60 The issue of child pornography can only be controlled effectively if all the nations collectively take a stand against it and cooperate with each other in the technological and legal field. One important fact which should be kept in mind is that many people who indulge in child pornography are the intelligentsia of the society and they include the lawyers, doctors, engineers and the politicians themselves. The government and the international organisations should always remain a step ahead of these people as these people have the capability to predict the next move of the government and can strategize their own moves accordingly. Moreover, the social stigma attached with the topic of child pornography and child abuse in India poses a huge threat as it hinders the proper protection of the child and creates an environment which is detrimental to the psychology of the child. The mere act of enacting laws is not enough at all. Proper implementation of an act is equally important if any positive result is expected. The low reportage of crimes related with child pornography coupled with poor sensitization of the law enforcement agencies has made India a hub for sexual crimes involving children. Awareness is the soul of change in a society. Awareness in the grassroots level is abysmal and it is the duty of the government to take initiatives regarding this. The downtrodden children are targeted for exploitation and hence their awareness should be the motive. NGOs, Legal Aid Camps should be organised to aware them in the language that they understand. One of the biggest drawbacks of our awareness programmes is the overuse of legal jargons which the common mass fails to comprehend and the essence of the message is lost till the time it reaches the target audience. Inclusion of sex education in the curriculum of all educational institutions is extremely important and children of the primary schools should be the main focus. Sex education should not be confined in the shackles of elitism and should be universal where even the child studying in a village school should have 60

ibid 64

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access to it. Eliminating child pornography is a huge challenge but a challenge which must be taken as the children who are the lifeline of this society deserve a healthy and positive environment where the dark alleys of the child pornographic world do not exist.

7

Social Aspects of Child Labour in India

Diksha Dubey

Abstract Child labour is one of the biggest problems of the Indian society. ILO report on child labour in south Asia revealed that India has maximum child labour in the entire region. This research paper tries to study the concept of child labour under the light of social aspects. The current definition of child labour according to various legislations is seen, while revisiting the definition of child labour in pre-industrial and ancient times. An attempt is made to offer a better interpretation of child labour. Sociological reasons for the existence of child labour are explained and sociological perspective has been used to study the policies of the government and to suggest such changes which can make the policies effective.

Social Construction of Childhood The problem while making any legislation against child labour is that it is very difficult to define child labour. This is because to define child labour one has to deal with the issues of work and childhood. It is difficult to understand where the process of socialisation through work ends and where it begins.1 The concept of childhood varies from society to society. There 1

Augendra Bhukuth, Defining Child Labour – A Controversial Debate, 18, Development in Practice,385(2008)

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is no one single definition of childhood which applies throughout the world. Adults make and sustain the concept of childhood. This concept is made in a way that it is according to the political, social and economic conditions of the place.2 But for making policies for protection of children at the current time, child can be viewed as an individual who is vulnerable and should be given special rights for protection from the adult world. It also should be understood that a child deserves happiness and proper care.3 In order to ascertain the meaning of labour, Gerry Rodgers and Guy Standings categorised different activities performed by a child. These activities included education, work for wage, leisure and small jobs etc. They explained that whether these activities would be classified as child labour or not depend on the culture of the society in which they are performed.4 In India girls are expected to do the domestic chores and boys are required to do different jobs like waiters, domestic work etc. which are generally performed outside home but in Britain the job of girl as waiter is accepted by people. This shows how culture affects our understanding of work but everything that is present in society or is a part of culture need not be good. Thus in order to abolish this practice of child labour it is necessary to understand the issue from the view point of a neutral person.. United Nations Convention for Child Rights was adopted on 20th November, 1989 and since then it has been adapted by 195 countries. Only US and South Sudan have not accepted it. 5 The wide acceptance of the treaty shows that most of the countries view the terms of treaty as ideal. The document thus helps in providing a global construction of childhood. The Article 1 of the convention says that every individual under the age of 18 is a child.6 The article recognises that children evolve and there can be various stages under the term childhood but the age limit for childhood remains 18.7 No country in the world has expressed 2

Loraine Abernethie, Child Labour in Contemporary Society: Why Do We Care, 6 Int’l J. Child. Rights 90 (1998) 3 Ibid 4 Ibid. 5 UN Lauds Somalia, http://www.un.org/apps/news/story.asp?NewsID=49845#.V9wAZk197IU 6 Article 1, Convention on Rights of Children 7 Article 12, Convention on Rights of Children

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reservation against this. This shows that countries all over the world accept that limiting age for childhood should be 18.8 The definition of childhood came after a lot of debate. The convention took help from various international instruments and NGOs to arrive at the definition still many countries have not specified 18 as minimum age of childhood. CRC provides ideal rules but the problem with it is that the rules which it provides are not backed with legal sanctions. Thus countries have not followed it sincerely. Child Labour – Meaning and History ILO has tried to define child labour as, “work that deprives children of their childhood, potential and their dignity, and is harmful to physical and mental development.”9 This definition can be used to understand the concept of child labour. Thus it can be said that any activity which affects childhood and affects children can be regarded as child labour. It is not necessary that the activity should be hazardous. The scope of this definition is wide and thus it is more beneficial for children. In India there are different statues which have been designed to abolish child labour. They don’t give the definition of the term child labour but mention the kind of work which children of particular age category should not engage in. The Factories Act of 1948 says that, “No child who has not completed fourteenth year shall be required or allowed to work in any factory.”10 The Child Labour Prohibition and Regulation Act, 1986 defines child as, “Person who has not completed fourteenth year of his age.”11This act prevents children from engaging in certain categories of occupation only. The Juvenile Justice Act 2000 defines child as any person under 18 years of age. 12 It also prescribes a 3 year punishment and fine for employing a child in hazardous work.13 Indian constitution also talks about child labour. The Article 24 says that, “no child below the age of 8

Naila Kabeer,Child Labour and the Right to Education in South Asia, 51(2002) What is Child Labour (3 September 2016, 5.15pm), http://www.ilo.org/ipec/facts/lang—en/ index.htm. 10 Section 67, Factories Act 1948 11 Section 2, Child Labour Prohibition and Regulation Act 1986 12 Section 2, Juvenile Justice Act 2000 13 Section 26, Juvenile Justice Act 2000 9

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fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous work.”14 The study of past explains how child labour evolved in India. Evolutionary perspective of sociology helps in understanding how child labour emerged in the society. It helps in understanding causes and effects of child labour and the ways to abolish it. Prior to industrial revolution child labour was a part of work which was required for survival in the society. It was seen also as an activity which prepares children for future. In pre-industrial society in India children worked with their family members in agriculture. They worked under the supervision of elders. The work they did was simple and non-hazardous.15 In ancient India children were made slaves. Children of age even less than eight years were bought to do various works. These slaves were treated as movable property. Children were slaves on the basis of their birth.16Kautilya was only ancient philosopher who spoke against child labour. He made it illegal to purchase children below 8 years of age. The parents had complete right over child. Also if the parents of children were slaves then they also had to work under the master of their parents.17 In the modern India the form of child labour has changed, people started migrating to cities in search of work and they got separated from their families in villages. They started working as wage labourers and had to put their children into labour in order to survive in cities. The work which the children needed to do then was hazardous and complicated, unlike the pre-industrial time.18 In the modern time people started talking about issues like child labour and gender discrimination. Education made people understand various social evils. After industrial revolution the work became complicated. It was necessary to protect children from getting injured while working. With industrialisation, people saw various alternatives to agriculture, the education of children became really important. Thus the society advanced and with it the law also needed to be developed. Government made various legislations against child labour. 14

Article 24, Constitution of India N Mitra, Slave Children of Mandsaur, 8, Sunday 12 (19th Dec.1980) 16 JC Kulshreshtha, Child Labour in India, Delhi, 48(1978) 17 Choudhary, Radhakrishna, Economic history of ancient India, 1, Janaki Prakashan 48 (1982). 18 Elias Mendelievitt, Child Labour, 8, International Labour Review, 212(1979) 15

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Thus on studying various legislations and the history of child labour, it can be seen that in India legislators have not taken into consideration the social factors while making legislations against child labour. Most of the legislations have specified 14 as the limiting age and they are made only to protect children against exploitations of specific forms. In India, child labour is a part of society, people have been practicing it since decades and it is not limited to some industry or factory. If the definition of ILO or global construction of the term child labour is taken into consideration, then it can be said that child labour exists everywhere in this nation. It is not only the industries which deprive children of their childhood. The work which the girl child does in home or the business training given to male child may affect the child in a negative manner and deprive him of his right to have a normal childhood. Social Factors Influencing Child Labour and Defects in Government Policies Poverty has been seen as the major cause of child labour, but social factors contribute to child labour more than the economic factors. This can be seen from the fact that many of the countries which are developed solved the problem of child labour much before they became economically strong. In many developing countries child labour has been eradicated. Policy makers need to understand it.19 There is also a concept of wealth paradox. It has been found by various studies that wealth is not the only factor which influences child labour. Families which have very less income require their children to work but the families which have large livestock or big farms also employ their children in order to maintain these properties.20 These examples show that child labour is not dependent only on economic factors. Thus in order to frame an effective policy the evolution of child labour in India and social factors for the prevalence of child labour need to be understood.

19

Kiran Bhatty, Child Labour- Breaking the Vicious Cycle, 31, Economic and Political Weekly, 384 (Feb 17, 1996). 20 Ellen Webink, Hidden Child Labour,Nijmegen Centre for Economics.

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People still have mind-set that work trains kids for future and that children should be productive. This thinking motivates people to engage children in various activities. These activities can range from small household work to hazardous work in industries. Gender discrimination regarding work still exists in both developed and developing countries. There are schools which admit only girls and their curriculum is designed such that it trains girls for their future roles as wives and mothers.21 In order to fulfil their needs people migrate to cities. Seasonal migration is a practice in which people migrate to the area of work for a particular time period. They engage in works like agriculture or constructing brick kilns. Children also migrate along with the family. The areas of work are generally not near schools and other facilities. Such children are vulnerable to child labour. According to a study, 4 to 6 million children migrate in India.22 The other type of migration is child migration. In this children migrate to cities alone. There are various cultural reasons for this migration. Children migrate to factories due to peer pressure. Their friends migrate to cities for work and they under this social pressure chose to follow their friends. It has also been found by various studies that the child migration is higher in areas where there is high adult migration. In such areas migration is seen as way of growth and development from childhood to adulthood.23 The result of this migration is not good for children. Such children have more risk of getting abused and exploited. Children may start migration voluntarily but they may get trapped in child labour. People might do sexual harassment with girls. Maximum children work in unorganised sector and thus their work cannot be regulated. Children get work with the help from adults and thus they remain dependent on these adults. They can be exploited by them. UN General Assembly declared that the children who migrate are more vulnerable to be exposed to worst forms of child labour. In India girls are 21

David M. Smolin, Conflict and Ideology in the International Campaign against Child Labour, 16 Hofstra Lab. & Emp. L. J. 383, 452 (1999). 22 MigrationandChildLabour,(4 th September2016, 21.32) www.ilo.org/ipecinfo/product/ download.do 23 Ibid

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not allowed to get education. Parents believe that a girl has to leave the family and settle into a new one. They teach her various household works from a very small age. The girls are trapped inside the house and are not allowed to play and travel like boys.24 The degree of engagement of children in household work depends on various factors related to urbanisation and development. In cities the transportation system is better and there is a pressure on parents to educate their children. In rural area people are not aware of the importance of education and prefer that the children help them in their agricultural works. Policies made by government have not performed well. Children still have to work in order to pay the debts of their family. According to a survey by ILO there were 10 million bounded child labourers in the country in the year 2000.25 Another survey by CRY exposed that child labour decrease at the rate of 2.2% per year. At this rate it will take more than hundred years for the end of child labour. Only 33 percent children complete higher secondary education in the country. This is a serious problem. Indian government has tried to make various legislations to fight child labour, but these legislations have not been effective. The basic problem is with the meaning of child labour is limited by various laws in India. According to most of the legislations, the term child includes only individuals below 14 years of age. The Article 1 of convention of child rights, describes children as individuals under 18 years of age. It also says that countries which have lesser age should increase the age to 18. 26 Other problem is with the way labour is viewed. ILO has given a very broad definition of labour. According to it labour includes any work which stops children from enjoying their childhood. The definition includes both emotional and physical aspects. The work done should not affect dignity of the child.27 This definition is wider and more effective for 24

Neera Burra, Cultural Stereotype and Household Behaviour- Girl Child Labour in India, 36, Economic and Poltical Weekly 383 (16th Feb, 2001). 25 Child Labour in India, http://www.childlineindia.org.in/child-labour-india.html 26 Article 1, Child Rights Convention 27 What is Child Labour (3 September 2016, 5.15pm), http://www.ilo.org/ipec/facts/lang—en/ index.html

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protection of children. In India children are engaged in various works which are not visible for example, girl child is asked to do the household works and male child is made to learn the family business. These practices are a part of culture and they are prevalent even in the economically strong areas. Thus the ILO definition is the best way to view child labour in India. Article 24 of the constitution of India says that, “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”.28This article seeks to prevent child labour. But the problem with this is that the term hazardous used in it is very wide. The scope of the term is not explained. Also it included only certain kinds of activities under the term labour. It completely ignored the fact that gender discrimination also leads to child labour. In India girls are made to do household jobs and are thus deprived of education and leisure. The article does not address this issue. The main problem with the legislations against child labour in India is that they are area specific. Mines act, factories act etc deal with child labour in particular industries.29 These legislations are made in the manner because in them child labour is seen only as an economic phenomena. But this is not true; there are various social reasons for child labour like gender and caste discrimination. The legislations thus are weak it protects only a small section of children from child labour. Three decades after the Child Labour Prohibition and Regulation Act an amendment was formulated. The Child Labour Prohibition and Regulation Bill Amendment was expected to act as a strong measure to prevent child labour, but it did not stand up to the expectations. The problem with this amendment is that it merely tries to somehow follow the international norms. It tries to fulfil the requirement of ILO Convention 138 and 182. Convention 138 makes education compulsory till age 15. But it relaxes the criterion by 1 year for developing countries. The convention 182 is to protect children from worst forms of labour.30 The amendment is 28

Article 24, Constitution of India Rajani Kanta Das, Child Labour in India: I, 28 Int’l Lab. Rev. 796, 832 (1933) 30 Child Labour by Other Means, http://www.thehindu.com/opinion/editorial/child-labour-byother-means/article8929306.ece. 29

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weak because it allows children less than 14 years of age to help in family business. It also limits the scope of term hazardous by giving a list of occupations which can be termed such. The problem of child labour is a very serious one if children will be allowed to engage in family works, then the number of drop outs will increase, children within their families can be employed in such activities which may affect their health. Government has given an argument that children learn useful skills when they are engaged in family work. This argument is flawed; children cannot be left at the mercy of their family.31 Earlier Act classified 18 processes and 66 occupations as hazardous. But this amendment classifies only certain processes under the Factories Act 1948 as hazardous. According to this domestic work is not hazardous. The amendment does not include acts which affect the emotions of children.32 The problem with this amendment and the other child labour prevention policies made by the government is that it doesn’t take into consideration the social factors. The first error which the legislations make is in determining the meaning of childhood and labour. In most of the legislation child is defined as an individual under 14 years of age. But this sort of limit is not helpful for children. As stated before child is an individual who needs special protection from corrupt adult world and nurturing. According to this even the individuals between 14 to 18 years of age can fall under the category of children. All the legislations only include hazardous activities under the term labour. Activities like domestic work are excluded from this category in the present act. The problem with this is that the laxity in the law can be used against children. Children in this country are employed in various jobs because of culture and tradition. Working with parents in the agriculture field is socially acceptable in rural India, these are not categorised as hazardous by the laws. Problem with this is that some kinds of work may have bad effect on physical and mental development of children. These works deprive them of their childhood. In Indian culture girls are trained 31

Komal Ganotra, Flawed Child Labour Law Amendment, 51, Economic and Political Weekly (27th Aug, 2016) 32 Ibid.

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from early age for their future married lives. Their mothers teach them various household works like cooking, cleaning etc. They are burdened with household jobs and thus might lose interest in education. No law tries to protect girls from this thing. This shows that the policy makers ignored the sociological aspects like gender discrimination, welfare and concept of childhood etc while drafting policy. When cultural patterns of the society are studied it can be seen that children help their parents in agriculture and small scale industries. Government has ignored this fact while drafting legislations against child labour. The work done in unorganised sector is not regulated by laws. So children are found to engage in various works like agriculture, carpet weaving etc due to cultural or economic reasons. The child labour is also cheap and thus it helps small scale industries to fight with big companies. 33 Any legislation for the prevention of child labour would be effective only if it takes into consideration the best interests of children. The term, best interest for children has been used in various conventions. The convention on Rights of Child has identified the situations where best interest of the child should be seen. It has been said that the child shall not be separated from parents against his will. Parents have responsibility to care for their children. In the case where a child is deprived of his family, officials should help him. The liberty of children should not be curtailed. In order to do welfare of children, it is necessary to take best interests of children into account. Three factors affect the welfare of children; first is the degree of parental influence in their lives; second is their right to have their own choice and third is the role of govt and NGOs to balance above factors.34 When these factors are there and they work for welfare of children then the child labour will get reduced. Every child needs a family. Adults teach children various things which will help them in future. But the role of adults should be that of the facilitator. Adults should help children and not use them for their own benefit. The conception that child is a subject of rights 33

Umesh Sahoo, Child Labour and Legislation, 25, Economic and Political Weekly, 2551(1990) Walton Ronald. “The Best Interests of the Child” The British Journal of Social Work 6.3 (1976): 308-309.

34

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should be changed. Children should be seen as right holders. The choice of a child if is not harmful to him should be valued. The question that arises is that who will see that work is done in the best interests of children. The answer to this is that the NGOS and state agencies can ensure that children are not harassed. They should see whether the rules are being followed properly. Analysing Child Labour In Indian society children are taught to respect elders and they are not allowed to question the ideas of adults. Children are treated as subjects of rights and not holder of rights. They don’t have their own voice. They are dependent on adults. Adults decide the choices which children have to make. They decide the types of life which they will live. These choices depend upon both economic and social factors. An example of this is the Sindhi community of Bhopal; most of them have their shops and small businesses and they teach their children their skills. Children are taken to shop from very young age, they study till primary and then most of them start working for full time in shops; if they don’t work for full time, even then they spend most of their energy and time in shop. The social attitude of people is such that they don’t recognise this activity as something bad. Also this is a part of their tradition and is not much related to wealth. This is a form of child labour. Children are deprived of their childhood. They cannot take proper education and their lives are limited to shop and home. They also have less time for leisure. A more striking example of child labour is that of girls of lower middle class families; in these families, the parents are not educated enough, they think that girl child is not a permanent member of the family and they discriminate against her and this discrimination is regarded as training of girls for future by parents. Girls are made to do various house hold works, they are not sent to school. Thus, they engage in a form of child labour but their work is ignored by the society. In Indian society people expect girls to know cooking, cleaning etc., the work which girls do is not seen as important contribution. This is reflected in policies of the government also. No legislation talks about work done by female child in home.

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The informal work force in India contributes to 90 percent of total employment. Most of the workers in this sector are children. In 2000, NSSO did a survey on place of work. The outcome of the survey showed that almost one fourth of the agricultural workers worked inside their homes. Half of the females worked in home and only one fifth of the males worked in home. Most of the activities which women do are limited to their homes.35 This difference is due to the culture and tradition of India. In India girls are not encouraged to go out and work. In villages women practice purdah system and restrict themselves from moving outside the home. Also the work which they do is not given much importance. Children help their mothers in the work; mother teaches the girl child different works which she does. According to the Indian legislations these girl child workers are invisible, but still they amount to a large amount of work force. Even the implementation of the present legislation against child labour has not been done properly. In India children are not even protected from hazardous works. There are various factors which hinder the implementation of the law. Firstly, the labour inspectors are very less in number. They form agreement with the employers. The industrialists who employ children are supported by politicians. This arrangement is like a spider’s web. Secondly, if police try to do a raid against the industries, parents do out of court settlement with the industrialists. Thirdly, parents make fake age certificates for children. Lastly, a new trend has been observed in which children are made to do work inside homes. Also the work is shifted to far off villages where inspection is not done.36 In India every sector of economy has child labour. People, who engage their children in child labour, defend themselves by saying that it is a part of their tradition. Child labour is most prevalent in socially and economically disadvantaged communities. Children of rich and socially respected workers 35

36

Crusading for Children in Indias Informal Economy, http://mvfindia.in/wp-content/uploads/ 2014/07/Neera-Burra-Crusading-for-Children-in-Indias-Informal-Economy-EconomicPolitical-Weekly-December-3-2005.pdf Crusading for Children in Indias Informal Economy, http://mvfindia.in/wp-content/uploads/ 2014/07/Neera-Burra-Crusading-for-Children-in-Indias-Informal-Economy-EconomicPolitical-Weekly-December-3-2005.pdf

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might be engaged in labour but they also get a chance to go to school. Children of poor or socially disadvantaged people are sold as labourers and they are made to do work for whole day. The children of weaker sections thus don’t get education. This continues like a cycle of discrimination. The children without education remain weak and oppressed in the future.37 People don’t understand the importance of education. They still follow old and meaningless tradition. Gender and caste discrimination are prevalent. In India the number of temples is more than that of educational institution. In the previous chapter researcher has explained how social factors influence child labour and how the legislations made by government are not efficient. These legislations don’t offer required protection to children. The concept of best interests of child was also explained. But no legislation against child labour can be effective unless society accepts it. Child labour in India is a part of tradition. It would be extremely difficult to prevent it because it is almost invisible. Parents engage children in agricultural fields and in their family businesses. Girl child is asked to do household work. All these activities are a part of our culture. People don’t see these activities as wrong because they are deeply embedded in our society. In order to ensure the welfare of children this attitude has to be changed. People need to be taught the importance of education. Government cannot monitor each and every house in this country. People of this country should play an active role in preventing child labour. People who engage their children in work should be explained the importance of education. Panchayats in village can play an important role in this. They should teach their villagers and should keep a watch on children. If a family engages children in work then the whole village should tell it that it is wrong. In cities people should at least try to abolish child labour in their locality. NGOs should work to prevent child labour. They should start research work on various laws made by government against child labour and the defects in these laws.

37

Naila Kabeer, Child Labour and the Right to Education in South Asia, 91(2002)

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Conclusion Children in India are deprived of their childhood due to work. Poverty is not the only reason because of which child labour exists. Culture also influences child labour. Firstly, the term child labour has been defined, the meaning conferred to the terms childhood and labour by various legislations in India is studied. It came out that most of the legislations had fixed minimum age as 14 and the term labour referred only to hazardous activities. The problem with the definition is that it does not take social factors into consideration. When factors like gender discrimination and caste bias are studied, it can be seen that children are pushed into child labour because of these factors. Girls are trained with household work from small age, they are required to do various jobs and because of this they get deprived of normal childhood. People migrate to cities in search of work and they take with themselves their children. Due to lack of resources, children have to engage in child labour. Children also migrate individually to cities. They get involved in child labour there and they mostly work under unorganised sector, thus their work cannot be regulated. The other case is that of family business. Due to tradition, children are encouraged to join family business. In rural areas poverty forces people to employ children in agriculture. Thus, the term child labour in Indian legislations does not include the above examples. According to Indian legislations the work must be hazardous. Thus the household work done by girls is not considered as child labour; children helping in family business are also not seen as labourers; the work done by children in unorganised industries is not even looked at. This definition of child labour is thus not beneficial for children. The government has passed various legislations to prevent child labour. The problem with these legislations is that they are area specific. They deal with child labour in mines, factories etc. They don’t connect social factors like gender discrimination, culture and caste with child labour. The new amendment bill to child labour prohibition and regulation has various flaws in it. These policies should be designed while keeping the best interests of children in mind. Child labour is deeply embedded in society. People ignore child labour and are not aware of importance of education. The child labour laws can work well when the

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social attitude regarding child labour changes and people take steps to abolish child labour. References Augendra Bhukuth, Defining Child Labour – A Controversial Debate, 18, Development in Practice, 385(2008). Child Labour in India, http://www.childlineindia.org.in/child-labour-india.htm Choudhary, Radhakrishna, Economic history of ancient India, 1, Janaki Prakashan 48 (1982). Crusading for Children in Indias Informal Economy, http://mvfindia.in/wp-content/uploads/ 2014/07/Neera-Burra-Crusading-for-Children-in-Indias-Informal-Economy-EconomicPolitical-Weekly-December-3-2005. David M. Smolin, Conflict and Ideology in the International Campaign against Child Labour, 16 Hofstra Lab. & Emp. L. J. 383, 452 (1999). Elias Mendelievitt, Child Labour, 8, International Labour Review, 212(1979). JC Kulshreshtha, Child Labour in India, Delhi, 48(1978). Komal Ganotra, Flawed Child Labour Law Amendment, 51, economic and Political Weekly. Loraine Abernethie, Child Labour in Contemporary Society: Why Do We Care, 6 Int’l J. Child. Rts. 90 (1998). MigrationandChildLabour,(4thSeptember2016,21.32)www.ilo.org/ipecinfo/product/download.do Naila Kabeer, Child Labour and the Right to Education in South Asia, 51(2002). Neera Burra, Cultural Stereotype and Household Behaviour- Girl Child Labour in India, 36, Economic and Poltical Weekly 383 (16th Feb, 2001). Rajani Kanta Das, Child Labour in India: I, 28 Int’l Lab. Rev. 796, 832 (1933) Umesh Sahoo, Child Labour and Legislation, 25, Economic and Political Weekly, 2551(1990). Walton Ronald. “The Best Interests of the Child.” The British Journal of Social Work 6.3 (1976): 308-309.

8

Education for All: Issues and Challenges for RTE in India

Sopan Shinde

Education has been thought to be instrumental in bringing about national integration of a culturally and socio-economically diverse country like India. In the post-independence period, it was important for the country to adopt policies that would increase the quality of education and to bring its human resource to the level for optimum economic advantage to its economy. India was governed by princely states followed by the British and thus the feeling of nationalism was a new phenomenon for major population of the country. Education is only a means for India to bring about awareness among the population and slowly induce the national pride among the masses. It is largely through education and spreading the knowledge of historical heritage, present progress and the future ambitions of the country that a pride of nationalism could be sustained. Besides, the British had impoverished this big country and for India to regain economic strength, the population needed to be educated adequately and properly.1 Therefore, India emphasised reconstruction of education system with innovation and expansion in the first Education Policy of 1968. India adopted 10+2+3 pattern as a structure of education. Elementary education was considered to be of primary importance in order to achieve literacy and in 1

http://www.ncert.nic.in/oth_anoun/npe86.pdf accessed on 15/03/2017

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order to boost education of science and technology, setting up of science and engineering institute at national level was considered to be an important step. Language policy was central to the educational integration plan with emphasis on a regional language, Hindi as national and English as international language, thereby bringing about three language formula in the policy. Indian constitution propagates a fundamental concept of ‘education for all’ irrespective of caste, creed, and gender with equal opportunities. There is directive principle under article 45 for free and compulsory education up to the age of 14 years. In the new education policy, the 1985 NPE embarked on ‘Operation Blackboard’ in order to improve primary education in the country and took significant steps to strengthen inclusiveness. The Rajiv Gandhi government then came up with schemes to lure the parents to send their children to schools regularly. There was an adventurous drive to increase the number of primary school in the country and particularly in the rural areas. This general emphasis on education had to escalate and establish something specific and concrete in term of ‘education for all’ in the light these policy developments over a long period of time and it happened at the change of the century. Rightly so, in 2002 Article 21-A was inserted in the constitution of India to provide ‘free and compulsory’ education to the children of the age between six and fourteen. This would mean every Indian child to have right to full time elementary education. Free education means that the child or parents do not need to pay fees for elementary education. And it is a compulsion on parents, local administration and the government to provide opportunity for the child to get elementary education. In this way, with the RTE Act that came into force in 2010, education became a fundamental right of every child in the country as a significant step towards human development and allocation of economic resources for all round development of the country, bringing in social and educational equality. As per the MHRD’s Department of School Education and Literacy following provisions are made. 1. Children to get free education within their geographical reach: in their neighbourhood.

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2. It implies compulsory admission, regular attendance in school and completion of elementary education. 3. There are provisions for those students not going to school to be admitted to age-suitable classes. 4. The responsibility to provide free and compulsory education lies with respective state governments, local authorities and parents. 5. There is a strict prohibition of physical punishment and mental harassment of children. 6. There is also a prohibition of entrance or screening tests of children. 7. In private schools, 25% seats have been reserved to be filled in under the RTE (reserved for weaker sections of the society) and a fixed amount of fees has to be reimbursed by the local government directly to the schools.2 This is how India has perceived education as fundamental right or ‘education for all’. However, what is perceived and resolved through legislation is only a first step. There are many factors that play their role in the arena at the grassroots and four major stakeholders are schools (aided and unaided), parents, local administration and respective state governments. There are serious issues and challenges that need attention and stakeholders have so far pushed the ball in each other’s court rather than coming together and taking responsibility of executing the act effectively. It is more than six years since the enactment of the RTE, yet there seems to a long way for India to meet the issues and challenges. Pre-Primary Education: Since the number of English medium schools has increased very significantly over the last couple of decades, pre-primary education has also gained importance; there are pre-primary schools in colonies of big cities growing like mushroom. All unaided schools run their pre-primary sections which with three year courses, namely Nursery, Lower Kindergarten (LKG) and Upper Kindergarten (UKG). However, The Right to Education 2

http://mhrd.gov.in/rte accessed on 15/3/2017

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Act does not cover pre-primary age group of year three to six. That means the students between age group of 3 and 6 from economically weaker sections of the country would not get any reimbursement of fees from respective state governments. These students would be readmitted to the school when they reach class one. There was confusion over this in several states. The government of Maharashtra gave admissions to pre-primary under the RTE provisions but refused to make payments to unaided school. The Bombay High court’s intervention, the state government changed its stance and the entry point of class one has been accepted, whereas the parents have to pay for the preprimary years of education.3 This situation poses a serious challenge in actual implementation of the RTE. First, many parents cannot afford the fees of pre-primary section so they have to let go off the seats reserved for them and try getting their child admitted directly at the age of six into class one. Second, the unaided schools keep complaining that the child not having attended pre-primary school lack in literacy and numeracy skills which other students having done pre-primary do have. According to schools, this leaves a considerable gap among the students. The option the parents are left with, is to arrange schooling of their children from some other government pre-primary school (anganwadi). Third, even if a child goes to government anganwadi or pre-school, the unaided schools keep complaining about the academic gap between the so called RTE and Non-RTE admissions. This scenario also leaves unaided schools complaining that if the seats are to be kept reserved for RTE in class one, there is a loss of three years of fees for those schools as the seats are left empty. Therefore, the entry point under RTE has left many real issues which the local governments and other stakeholders have to address. Education and Equality: We have a history of inequality in education. Education in our society was a right of higher classes and particularly the Brahmins. Women were also assigned household chores and were not suppose take part in learning languages and scriptures. With affirmative action’s, India has tried to battle of caste and gender based inequalities in education to a 3

http://bombayhighcourt.nic.in accessed on 15/3/2017

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greater extent, but real awareness about education is a matter of concern. There are very few parents who are actually aware about the provisions of elementary education as a fundamental right and that under RTE; their children’s education has actually been secured. Unfortunately, a mere law does not bring equality; its execution is even more important. The parents for whose children these provisions have been made are busy finding employment for themselves and many of them are actually the labourers on move, for example, the construction labourers or the sugar cane farm labourers of Maharashtra. Even if these parents are made aware about such provisions, they would hardly find time to get their children to schools. This leaves the local government schools with a larger responsibility of identifying these students and bringing them to the main-stream education.4 Those parents who are aware of the provisions do also have a tough time particularly getting admissions done in unaided schools. Schools are generally reluctant to pass on the information and if out of local administration’s pressure they do display the notice on the board in English and local vernacular language, it is mostly for the sake of taking photographs and maintaining records to be displayed to state government officials. These parents, who are merely literate and not worldly educated, find it difficult to take follow up of unaided schools and mostly give up; after all, most important issue for them is earning daily wages to survive. Corruption and Favouritism: Corruption is our major problem in implementing any policy, scheme or law in our country. Local administration that has the responsibility of implementing the Right to Education act implements some of the personal privileges alongside the RTE. These privileges included making easy admissions of relatives and friends or forge deals for admissions under the RTE. Allegedly; the RTE legislation has become a tool for education officers of respective state departments to hatch lucrative deals for themselves. There are number of cases which are lately be in news whereby an education officer was arrested for allegedly demanding and accepting the bribe of just Rs. 20000 for blocking a seat in one of the unaided schools under his area. 4

http://ihds.info/sites/default/files/publications/papers/EducationGenderInequalityinIndia.pdf

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Several unaided school organizations have raised the issues of harassment by the local education departments since the enactment of the RTE act. The state education departments have a big responsibility in implementing the RTE by ensuring the procedures that are well within the comprehension of the parents. This means spreading awareness among the people about the provisions and controlling the admission procedure in aided as well as unaided schools. However, the local educations offices do not go more than a step to react media hypes during each admission season around the months of April to June. Commercialization of Education: With a right to education, there is also a right to give education i.e., the state has to make the arrangement for the provision of elementary education which it may do by allowing state-recognized private schools. Students are provided admission under the Constitution of India either in state-owned or in state recognized schools. State-recognized or private schools earlier referred to as unaided schools charge capitation fees and sell education. This gives educational institutions or the act of running such institutions an occupational status. Though private organizations, name it as a charitable activity, it is not a secret in India that education is actually a business mainly for the politicians and big business firms. The main rule of business is to make profit, and business of education is no exception to this fundamental vision of business. Our unaided institutes have done everything to turn education system into a profit making machines and there are positive as well as negative outcomes of the same. As a positive outcome, privatization of school educations, we have better infrastructure, though only the economically advantaged groups have the advantage to utilize those facilities. Institutes invest huge amounts in brining high class facilities, erecting sports complexes, shooting ranges and swimming pools etc., but the expenses are curbed when it comes to providing good salaries and working conditions to teachers which must be a priority if quality education is to be put to forefront. However, what comes as a harassment of children (violation of the RTE) is the curriculum overburden on students apart from economic overburden on parents. Private schools introduce extra subjects and activities in the name of quality education and such practices are commonly introduced

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into order to make extra petty cash. There are schools selling uniforms, stationery and other school related materials in well framed kits. There are a number of competitive examinations such as Olympiad, NTSE and NSTSE which private schools implement as compulsory components. Schools get their own percentage on fees in executing these examinations, but it increases economic burden on the parents. More importantly, on the one hand our policies target to eliminate the examinations from elementary education and bringing in Comprehensive Curriculum Evaluation and on the other hand private schools continuously replace it by such extra examinations. One of the major factors mushrooming such practices is the parents who have good earnings and they want their children to compete from the time they are born. The RTE is not merely about the admissions and opportunity to learn. There is a provision to eliminate corporal punishment too. As a result, there is a minimization in actually whacking children, slapping them or caning, but it has to a large extent taken either the form of psychological torture or adopting pleasing policies towards children and their parents. Teachers will tell all good and tall stories about the children to their parents, to the dismay of the parents; they come to know of the real academic issues with their wards only when they reach class nine where failure or detaining to the same class has been incepted. Thus, the pleasing policy comes as a disaster one day. As far as psychological pressure on students is concerned, it is basically the retreat to threats from physical punishment in reality. All in all, with commercialization, school education has made the process and delivery of education more mechanical than a gradual psychological process of learning. The focus is more on doing more and more things than the learning outcome. Teachers are given all responsibilities including teaching, tutorials, remedial, activities and getting more admissions by doing surveys in the neighbouring areas. This overburdens the teachers and they can’t really focus on teaching as a learning process but do more of what one would suitably call tick in the box. The institutes want to project students as transformed superstar students to parents as that are the best way to attract more customers and teachers are used as the means of executing the show. This process brings more emphasis on marks on tests and activity performances but ignores the

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quality learning. Unfortunately, the parents want the same and the private schools are reading it rightly to offer what is in demand. Medium of Education: Within last two decades, there is more and more shift towards English medium education. It is obvious that the students do not learn their subjects in mother tongue. However, what comes as a setback on the three language formula of Indian policy is that the mother tongue has been kept in English medium schools only for the sake of formality. Students are left in the limbo having no clear mastery over either English or their mother tongue. It is easier for children to learn any subject in their own mother tongue, but that factor has been completely ignored in the era of the English medium schools. Government Funded or Aided Schools: There are serious problems of infrastructure and very basic facilities like toilet and drinking water are not available. The quality of teaching itself is questionable as the students are not at their level of literacy and numeracy. Children from rural areas mostly dependent on government aided schools. Even in the urban areas, children from the economically disadvantaged section of society attend these schools. In this regard, there is a lack of equality; students going to private schools have much better facilitates compared to these aided schools. Teachers from these schools are also given extra administrative duties by state government keeping them engaged in activities other than imparting education. In addition, in rural areas children are pulled out of school by their parents for the work they want them to do. Comprehensive Curriculum Evaluation (CCE): The RTE carries this provision of Comprehensive Curriculum Evaluation. Students taking elementary education in the RTE age group would not be detained to the same class or failed. Test or examinations are not the only measure of child’s progress. Neither the education departments of respective state governments nor the private schools have a clear understanding of the CCE. Private schools have developed own understating of the CCE pattern: they execute this component through projects and these projects are mostly left for parents to do at home. There are lots of extra stationary items needed in completing these projects for which parents have to go shopping. In whatever situations, students are passed to the higher grades.

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Improvement in the RTE implementation: From increasing accountability of all stakeholders to offering incentives, several steps could be taken in order to improve implementation of the RTE. 1. Policy on Pre-primary Education: Besides unaided schools running their pre-primary sections, there are several other market players running independent pre-primary or early education centres. These schools are not anywhere on government record because no formal registrations are required to be met. This induces several educational inequalities among the new generation that enters school education which has been discussed in the issues and concerns earlier in the paper. Policymakers need to take a consensus of this and make provisions to eliminate the educational inequalities. The policy could either include pre-primary education under the RTE or stop private preprimary centres that bring in the inequality in the first place. The prior in this case seems more appropriate an option, and if that is to be done, state governments need to improve the government pre-primary or anganwadi considerably. Governments need to fix the minimum age of schooling in order to battle off the activity of admitting students from the age of two years. Since the modern nuclear families have both parents working, the early entry age suits them keeping their children engaged, but mushrooming of unmonitored centres is not good for children at large. 2. Teacher Training Programme: As the Comprehensive Curriculum Evaluation (CCE) has not been understood and implemented with a common philosophy at all levels. Besides bring this common ground for implementation of CCE, teacher training could act as the backbone of Right to Education implementation in the real sense. Untrained or unmotivated teachers can mar any program, no matter how ambitious it is. Creating a standard training program to train and generate quality teachers is crucial for the RTE Act to produce meaningful results. 3. Social Audit: Implementing any nationwide policies and schemes in demographically wide and diverse country like India is a cumbersome activity. There are several elements like will or desire of local governance agents, corruption, and economic classes that undermine the ideals of social equality targeted by such schemes and policies. This phenomenon affects not only the

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implementation of RTE but all such social welfare policies and schemes. ‘Social Audit’ is “a public assembly where all the details of the project are scrutinized”. It is “a way of measuring, understanding, reporting and ultimately improving an organization’s social and ethical performance” as per the National Institute of Rural Development (NIRD). Social audit assists in verifying the social performance claims of these government schemes and revolves around the principles of equity, social responsibility, trust, accountability, transparency, inclusiveness and community benefit. In order to eliminate the loopholes in implementation of the RTE, concerned state governments must bring it under social audit. Such a move has already the State Government ofAndhra Pradesh. It helps in bridging the gap between what people really need and what the government is arranging to provide from the centre. There are several nongovernmental organizations (NGOs) that could play a significant role in social audit of educational sector. It may not involve the financial audit, but the operations audit in terms of quality education.5 4. Spreading Awareness: India is witnessing explosion of Information and Communication Technologies and rural areas have also seen a considerable growth in use of mobile phones in the recent past. This technological exploitation could be strongly used to spread awareness about the RTE and importance of education at large among the Indian masses. There needs to be an awareness programme using all means possible to accomplish the vision of educational policy of India. 5. Modification of Schemes: All states are running schemes on the line of Mid-Day Meal in order to attract drop out students from lower or disadvantaged sections of society. There are several problems with this scheme. The focus is only on having this scheme implemented and the quality as well as of quantity of food is not taken into consideration. There have been several occasions of food poison caused due to negligence about quality control and corruption. There is hardly any consideration for the nutritional value of the food being provided. There is a difference between food on paper records and actual food provided owing to the corruption that is rampant in these 5

http://www.isca.in/IJSS/Archive/v2/i11/9.ISCA-IRJSS-2013-157.pdf

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areas as well. Therefore, the Mid-Day Meal scheme as such needs to be reconsidered and may be brought under Social Audit. Conclusion India has been viewed as a country with powerful human resource and constant economic growth. The economic growth has to reach all sections of society and governments constantly modify the central policies in order to achieve the socio-economic balance. The country’s visions and aspirations could only be fulfilled if the new generations get quality education. Therefore, the enactment of the Right to Education Act is a significant move towards acquiring such standard in education taking entire population a step further towards higher quality human resource. However, policies, schemes and laws need stronger mechanisms to implement to the desired effect. Therefore, the RTE implementation needs to be reviewed and reformed to achieve the goals. There are several steps such as modification of existing schemes, teacher training programmes, social audit and awareness programme that could make the implementation really effective.

9

Zero Tolerance’ on Child Begging: A Bitter Truth

Sumant Kumar

Abstract Beggary is an accepted way of life for a large section of orphan, destitute and neglected children in our society. India in recently initiated zero tolerance on Child begging, which is really a big task for government authorities to implement in Indian societies. We Indian are strongly bounded with our religious sentiment which promotes charity and welfare within the society. In which charity is easy methods to get rid of our sin. Indian society to avoid problems they believes in cash charity in temple, masque, Gurudwara, Churches or give to the beggar. Because of our generosity beggars’ numbers is increasing. But we forget this thing that, beggar not only a curse for Indian society but also for India. Involvement of children in the begging industry violates the rights of children. These gangs knows that children are unable to stands for their rights and society as well as government authorities are also want to avoid this issue. Mafia involvement in begging industry has increased in recent years as lack of uniformity in laws also it differ from state to state. Though, they easily target children for begging business. Child beggary is one of the heinous crimes as it includes; drugged, beaten, kidnapping, abduction, trafficking, chopping of organ and many more other criminal activity. Child

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begging in recent year increased at mountain level, around three lakh children are forced to beg in India and the ratio is increasing every year.

Indian economy is one of the fastest growing economies in the world. However, poverty, health, unemployment, illiteracy, food scarcity etc. are still major concern for India. India is developing country, were large population are still living in rural areas where government and its policies have not reached even after the 67 years of independence. Poverty is one of the major issues in India. Due to poverty, people do not have other choice than begging. Our religious ideology promotes charity and welfare activity which is indirectly promoting beggary in Indian society. Though, it is common to see in most of the cities that beggars are begging in road junction, inside railways coaches, temples, churches, mosques, tourist places, railway station, bus stand etc.1 Beggar have adopted beggary as their profession, it has changed its form in the modern period and the problem has become a colossal one. Beggars do nothing, except begging and leading a life of horrible moral corruption. Moreover due to less productivity and all-round backwardness beggary is growing at alarming rate. In which, child begging is one of the significant issue.2 In begging industries child were easy victim and deprived from their right to live a decent life. Beggary is not only curse but one of the most serious social problems for India. India is emerging as economic growing countries. However, economic growth in not tackling the poverty issue, which leads to increasing, numbers of beggars. It is also noticed that, since last decade large numbers of beggar are also coming from Bangladesh. There are several reasons for begging as few beggars in India who beg because they are old, handicapped, and unable to work due to leprosy, blind and other diseases or really need money for basic needs. It is also noticed that, children often beg because their parents/guardians want or unable to feed them. However in few cases children are willing to beg because of parents/child addiction of drug, cigarette, ganja, gambling etc. 1 2

Sithannan V. (2007), Immoral Traffic - Prostitution in India, Chennai: Jeywin Publisher, pp.86. Iqbal, Rubina (2013), Begging: A Growing Menace in India, International Journal of Advance Research in Management and Social Science, Vol. 2, No. 8, August. pp. 36-62.

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Furthermore in many cases children were force to beg as they were kidnapped or abducted. Child beggary is one of the heinous crimes as it includes; being drugged, beaten, kidnapping, abduction, trafficking, chopping of organ and other criminal activity. “Poverty and handicap are an ideal combination for children to put in begging field as it is belief that, the handicap will induce sympathy in the giver. This belief puts the child beggar at serious risk of being deliberately maimed in order to increase his or her earning potential. Children are mostly vulnerable to raise their voice for their rights.”3 The Delhi Social Welfare Department pointed that, people who give money to beggars are guilty of traffic delay. In an advertisement of blitz, national newspapers claimed that those who give beggars “alms may cause traffic jams, accidents, illiteracy, inconvenience, unemployment, biri, cigarette, alcohol, bhang, ganja, charas, heroin… mandrax, robbery, rape, sex, theft, murder, prostitution, handicapped, assault, hooliganism” and then even more darkly “slums, poverty, debt, ignorance, aggression, encroachment, molestation, mugging…”4 It is very difficult to find out in between real beggar and the trained one, because their looks are very deceptive. Even the small children with their dirty cloths and faces with importunate looks confused people and police. We Indian always have a soft feeling for poor and the needy one as our heart melts when we see any young woman holding her tiny baby and begging on the streets, traffic signals, near hospitals and asking for help to buy milk or medical treatment or medicines. In most cases, the baby is found sleeping, because either beggar who looks like mother, borrowed baby for a day or maybe kidnapped. They drugged the baby, so sleeping baby will never create attention among people and easy to believes that baby is sick. Some beggars are highly trained and constantly approach you until you give them some money. Rich people and foreigner gives money just only to get rid from them or because

3

Thukral, Enakshi Ganguly (2002), Children in Globalising India: Challenging Our Conscience (ed.), Shahpur: Centre for Child Rights 4 The Hindu (2010), The war against begging, available at URL: http://www.thehindu.com/ todays-paper/tp-features/tp-sundaymagazine/The-war-against-begging/article15941116.ece

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of fear and do not knows how to react or what to do in such situation. We Indians are very orthodox in nature and also believe in God and also fear from God. These entire belief trained beggars know very well so as per schedule prayer of God, they bring god posture or sculpture according to that, such as Tuesday (Hanuman Bhagwan) and Saturday (Sani Bhagwan) so this bound God believers to donate money as charity. Legal Provisions There is no central law which penalises for begging in India. The offence of begging comes under Prevention of Begging Act 1959, but it differs state to state. The Child Labour (Prohibition and Regulation) Amendment Bill, was amended in 2016, but again is not sufficient to protect rights of the child. Though it bans complete employment of children below the age of 14 years, an exception has been made for children working in family enterprises. This new act is based on the premise that education and work for children can go hand in hand. This argument goes against the spirit of the Right to Free and Compulsory Education (RTE) 2009. Indian National Human Rights Commission estimated that, up to 40,000 children are abducted in India every year, of which at least 11,000 remain untraced. Anita Kanaiya, CEO of The Freedom Project India working on child trafficking asserted that, “The police don’t think begging is an issue because they assume that the adult with the child is either family or a known person,” India’s child labour law, until the recent amendments passed by Parliament, barred child works until 14 years only in officially designated hazardous employment. Section 363A of the Indian Penal Code, for instance, specifically deals with the kidnapping and maiming of children for begging. There was no bar on the employment of children between 14 and 18 years. The criminalising of begging is a relatively recent colonial construction. Traditional societies have been much more tolerant of people who live by begging, and some traditions like Buddhism in fact valorise begging by holy men because it is believed to teach them humility, and enables them to break away from all forms of material bondage. It was in the 1920s that begging was first declared a crime in British India, and the law was updated as the Bombay Prevention of Begging Act in 1959, and extended to 18 States including Delhi.

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Under this act, a child is defined as a boy who has not completed 16 years of age and a girl who has not completed 18 years of age. According to this act beggars found guilty by a court of law were sentence to a minimum of one year and a maximum of three years in Beggar’s Home (Certified institution). The detainment is for not just for the beggar but also the beggar’s dependents, unless the dependent is a child. The child will be sent to courts under the Children Act 1960 to be handled as per the provisions of that law. In the case the child is found to be guilty of begging and is below the age of five, he/she is forwarded to the courts under the Children Act, 1960, unless the child is below the age of five and has a mother who is being detained and can take care of him/her. The act also has provisions that allow officers to detain people because they are leprosy patients or lunatics. This law provides for the jailing up to three years in special “beggars’ courts” of all people caught in begging, penalties can be extended to 10 years in case of second and repeated “offences”. The definition under this law of beggars includes not just seeking of alms, but also traditional artists, as “singing, dancing, fortune-telling, performing or offering any article for sale”, all of which are deemed as offences under this Act. The definition of begging even includes simply “having no visible means of subsistence”. In other words, it makes destitution a crime, punishable by incarceration. Since many beggars suffer from leprosy and mental illness, it implicitly criminalises these ailments as well. The Ministry of Social Justice and Empowerment has asked the States and Union Territories to inform the Centre about schemes and welfare measures taken by them to check beggary. “Although various State governments and Union Territories have enacted anti-beggary legislations or adopted measures through executive orders, not much information regarding the status of their implementation is available,” wrote the Ministry to the States. Begging is considered a crime in India under the Bombay Prevention of Begging Act, 1959, rather than a social issue. An individual found begging can be sent to a begging shelter home or even jail without a trial. Several States have adopted

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this Act.5However the fact as has been declared by the Government of India is that in 2011, around 3.7 lakh beggars are living in India, the data was earlier double in 2001 census with 6.3 lakh figure; in which average is 53.13% were male beggars and 46.87% are female beggars; for Muslims, the ratio is 43.61% male beggars and 56.38% female. “Destitution is the outcome of the failure of government programmes to provide a safety net to its citizens. This number is evidence of how certain groups in society have lesser access to services and government programmes and are pushed to being destitute,” stated by Mohammed Tarique, coordinator of Koshish, a Tata Institute of Social Sciences Field Action Project on Homelessness and Destitution.6 As per the World Bank estimate, India has highest number of people living below poverty line. In 2012, the Indian government stated that around 22% of its population is living under the below poverty limit. In 2011, the World Bank stated that data on 2005’s PPPs International Comparison Program, which estimated that, about 23.6% of Indian population, or about 276 million people, lives below $1.25 per day on purchasing power parity. There are many others who also lives far below the poverty line and bound to choose begging for their livelihood. But poverty related fact may divert the begging issue as poverty is real in India but not begging because trained beggar are in large numbers than the actual one. Begging in India surviving because gangs regulate the begging industry, each gang have their own territory and leaders. It is responsibilities of leaders to allot duty to each beggar and shared earned money among them. The gang leader keeps the larger share as sometime they have to face challenges from police, traffic police and NGOs. It’s strange to believe that some of these beggars earn in thousands as monthly basic, much more than a daily wages worker. India occupied top position in terms of child population in the world i.e. comprise with 19 percent of the world’s child population. Indian constitution 5

Dhar, Aarti (2016), Centre asks States for data on beggars, online available at URL: http:// www.thehindu.com/news/national/centre-asks-states-for-data-on-beggars/article5646175.ece 6 Shaikh, Zeeshan (2016), Every 4th person categorised as ‘beggar’ in India is Muslim (Indian Express News), available at URL: http://indianexpress.com/article/explained/muslimspolpulation-in-india-muslims-beggar-unemployment-census-data-muslim-economic-survey2941228/

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is the safeguard for their security, protection, development and participation with several constitutional provisions. However, situation of children has gained special attraction as millions of children were targeted by the criminal group for begging, prostitution, trafficking, for domestic help and millions of them are dying due to poverty, health, illegal work activity etc. On an average, more than 40,000 children go missing every year in India, of these, 12,000 are never found.7 At least 300,000 children across India are drugged, beaten and forced to beg every day, in what has become a multi million rupees industries controlled by human trafficking cartels, police and trafficking as experts said.8 Due to poverty and forced labour, large numbers of children have to spend their childhood in begging. The children in begging are categorised in three broad groups: boys, girls and children with their parents/guardian. Nearby metropolitan areas, it is regular scheduled of father to move to cities with their families in which male member generally work in factories or as daily wages worker and the rest female members and children beg near traffic signals. Similarly, there are group of children itself who beg nearby railway station and bus stands for their own interest. In reality these children were begging for their drugs addictions and to play gamble. Some of them have school dropout children, they were begging because of poverty or to fulfil father’s drinking habits. Normally child beggar earned 75-100 rupees everyday through begging. As report covered by the Hindu newspaper with a survey in Gurgaon found that beggar population growing in numbers. Families prefer to send their children to beg rather than to school. Survey highlighted that around 95 per cent of the children had never been to any school, 80 per cent were residing under bridges and near traffic signals and 20 per cent came from Khandsa village near Gurgaon. The survey said the average income of each child was nearly Rs.5, 000 a month and many of them earned over Rs.12, 000. Children too preferred begging than to go school.9 Begging is a business without any investment. 7

Das, Arun Kumar (2006), Thousands missing ... and still counting, available on URL:http:// timesofindia.indiatimes.com/home/sunday-times/deep-focus/Thousands-missing-and-stillcounting/articleshow/411279.cms?null 8 Reuters (2016), Traffickers in India force 300,000 children to beg in streets - police, available on URL:http://in.reuters.com/article/india-trafficking-children-beggars-idINKCN0YN4VJ 9 The Hindu (2016), Child beggars on the rise in Gurgaon, available at URL: http:// www.thehindu.com/news/national/other-states/child-beggars-on-the-rise-in-gurgaon/ article5715365.ece

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Millions of rupees illegally earned through child begging. This is possible because we show sympathy towards child beggar. Because of which, it encourages beggar mafias and gangs, to abduct more and more children, cut off their limbs and blind them and forcibly push into begging. International Concern for the Protection of Child Rights In 1924 the League of Nations adopted the Geneva Declaration of the Rights of the Child at International Level, which established children’s rights as means for material, moral and spiritual development; special help when hungry, sick, disabled or orphaned; first call on relief when in distress; freedom from economic exploitation; and an upbringing that in stills a sense of social responsibility. Later in 1948 the United Nations General Assembly adopted Universal Declaration of Human Rights, in which article 25 emphasis for childhood: “entitled to special care and assistance.” Another achievement was when the UN General Assembly adopted the Declaration of the Rights of the Child in 1959, which recognized rights such as freedom from discrimination and the right to a name and a nationality including children’s rights to education, health, care and special protection. 1979 was celebrated as the International Year of the Child. In 1989 the UN General Assembly unanimously approved the Convention on the Rights of the Child, which entered into force the following year. In 1990 the World Summit for Children was held in New York where the representatives of the countries signed the World Declaration on the Survival, Protection and Development of Children as well as a Plan of Action for implementing the Declaration, setting goals to be achieved by the year 2000. In 1999 the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour was adopted. In 2000 the UN Millennium Development Goals incorporated specific targets related to child including sale of children, child prostitution and child pornography. In 2002 the UN General Assembly held a Special Session on Children, meeting for the first time to specifically discuss children’s issues. Similarly, Article 14, 18, 23 and 24 of International Covenant on Civil and Political Rights ensure about the signatories of the States Parties shall take appropriate steps to guarantee “equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall

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be made for the necessary protection of any children”. Including all these Article 24 of the covenant make sure that child shall not face any discrimination on behalf of “race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State and every child has the right to acquire a nationality”10 Article 10, 12 and 13 International Covenant on Economic, Social and Cultural Rights also emphasis for the special protection, development and participation of child. And “special measures of protection and assistance should be taken on behalf of all children and young people without any discrimination for reasons of parentage or other conditions. Children and young people should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law”.11 Including provision related to reduction of the birth-rate and of infant mortality and for the healthy development of the child. Respect for the liberty of parents/ legal guardians to choose children’s schools and confirm for minimum standards education level may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. However, all theses international covenant, treaties and provision are mere words if not implemented in the constitutional provisions. India is a signatory to the all these document but at ground level not ratified. Thus, this entire document which deals rights of the child, has not received legal status in India.

10

International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49 available at URL:http:/ /www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx 11 International Covenant on Economic, Social and Cultural Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966entry into force 3 January 1976, in accordance with article 27, available at URL:http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

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Government Response There are several steps has been taken by the authorities to tackle begging issues but laws were never adopted at national level or full fledge by the state authorities. During the Commonwealth Games in 2010, Delhi High Court agreed that beggars should be removed from Delhi as they “obstruct the smooth flow of traffic”. “The Delhi government exhausted every possible tool to eradicate beggary during the run-up to the Games. A special team was formed by the Provisions and Logistics unit of Delhi Police to relocate beggars from certain areas till Commonwealth Games. In 2011, Bengaluru police launched “Operation Rakshan” (“To Save”). In coordination with various government departments and charities, they drew up a blueprint to help children forced into begging. Months before carrying out a series of rescues, they spread out across the city, taking pictures of children on the street, documenting their daily activities and shadowing them back to their homes. “When we started, we had nothing to prove the connection between begging and trafficking. But we went about meticulously recording any signs of forced labour on the streets of the city,” Kanaiya said. According to inspector general of police, Pronob Mohanty, who spearheaded the operation, teams of police and health workers rescued 300 children on a single day across the city. The traffickers were arrested and later imprisoned. “Operation Rakshane is meant to be templates which can be replicated as a model of inter agency cooperation,” Mohanty said in the handbook, which includes suggestions for surveillance, data collection and rehabilitation, as well as listing relevant laws. Kanaiya said: “We are now initiating a planned campaign to take the book to every police headquarters in the country and follow it up with a workshop on child (begging) and rescue operations for policemen.”12 Similarly, two-day operations “Operation Smile” runs by the police officials in Kalaburagi, in which the police have rescued 44 beggars on first day and second day team rescued 20 beggars from railway station, bus stops, temples and other public places on the first day. 12

DNA India (2016), 3.00,000 Children Across India are Forced to Beg by Cartels: Report, online available on URL:http://www.dnaindia.com/india/report-300000-children-across-indiaare-forced-to-beg-by-cartels-report-2218856

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Union Women and Child Development Minister Maneka Gandhi on the issues of child begging in India pitched for “zero tolerance”. “We have decided to come down heavily on children begging. I am planning a meeting with the Commissioner of Police and say zero tolerance (sic). I am not against begging but there should be no children on the street for begging,” Gandhi said at a conclave hosted by FICCI Ladies Organisation. The National Commission for Protection of Child Rights (NCPCR) - the apex body for children under the Women and Child Development Ministry- had recently released its ‘Standard Operating Procedure (SOP) for Children in Street Situations’. The SOP lays down a sequence of actions to be taken for restoration and rehabilitation of street children. It has assigned NGO ‘Child line’ to be “the first point of contact” for rescuing street children. Children recovered by the NGO will next be produced Save the Children, an NGO which helped NCPCR formulate these guidelines, had also announced last month that they plan to provide Aadhaar cards to all 50,000 street children in Delhi in the next six months before a Child Welfare Committee (CWC).13 After a complaint filed by Satyanarayana Gola, secretary of the NGO Jaibharat Organisation, and newspaper reports, the State Commission for Protection of Child Rights (SCPCR), issued directions to the authorities shut down forced begging by children in the city, and submit a report within a month’s time. The Commission has asked the Commissioners of Police of Hyderabad and Cyberabad respectively, the GHMC Commissioner, Commissioner of Labour, and the Principal Secretary of Education, to take necessary steps to curb ‘child begging’ and submit the Action Taken Report. The commission has noted that children painted in toxic colours were being used for begging near traffic signals, temples and more recently, Ganesh pandals. The paints may lead to chronic diseases in the long run, and it would be a serious violation of child rights, members of the Commission noted in a press briefing here on Wednesday. Further, children are being forced to beg at traffic junctions, probably at the behest of child trafficking mafia, Mamatha Raghuveer, 13

The Indian Express (2017), Maneka Gandhi calls for‘zero tolerance’ on child begging, online available at URL: http://indianexpress.com/article/india/maneka-gandhi-calls-for-zerotolerance-on-child-begging-4552918/

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one of the members, noted. Needing more attention are the children rented out to beggars, she said, and urged people not to give alms to such persons.14Another PIL was filed by Ajay Gautam in Delhi High Court to ensure rehabilitation for children and eliminate child beggary. Chief Justice G Rohini and Justice P S Teji posted the child begging for further consideration. As bench said that “the issue of child begging is already seized by the Supreme Court and it was already monitoring the same. We will keep the matter pending,” The PIL, sought directions to identifying exact number of destitute children who are involved in begging and to review the steps taken to solve this problem. “The Delhi government exhausted every possible tool to eradicate beggary during the run-up to the Games. However, immediately after the games, the situation became the same,” the plea claimed. It contends that though Delhi State Commission for Protection of Child Rights was formed on 7 July, 2008, to eradicate child beggary in the city, it has failed in its task. “While the Centre has enacted variety of legislation for children, it has failed to ensure that children do not beg,” the plea said.15 Conclusion As we know that, there are not sufficient laws and uniform approach made by the government officials to eradicate child begging from India. However, time to time government has made little effort and rescued few hundreds of children out of 40,000 in a year. Still begging industry is running illegally by the mafias without any regret. Because, we Indian living in a society less society. People in generally criticised child begging but they give them money. Our orthodox approach, religious mindset encourages donating charity to the beggars, which is the main reason for increase in numbers of beggar in the country. The government and responsible authorities claimed that many efforts have been taken to abolish begging but it has failed to abolish nationwide. But the 14

The Hindu (2014), Crack down on forced begging by children, authorities told, available at URL: http://www.thehindu.com/news/cities/Hyderabad/crack-down-on-forced-begging-bychildren-authorities-told/article6397933.ece 15 Mathur, Aneesha (2014),Plea in HC to eradicate begging by children, available at URL: http:/ /indianexpress.com/article/cities/delhi/plea-in-hc-to-eradicate-begging-by-children/

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trend of begging still continues. Sometimes as citizen of India we realize that, it is our moral responsibility to stop this menace and the best way is to stop giving alms. It might seem that we are very heartless if not gives money to a little child beggar, but this is first and essential step that we can take to end begging. If more and more people come out and take a pledge that they will not going to give a single penny to any child beggar, irrespective of their need, I am sure, child beggary will then be completely uprooted from India. To control this problem, all the State government and authorities should enforce entire ban on child begging. Enforcement of strict laws and punishment will creates fear among mafia and also penalty who gives money to the beggar. The Government should also take more effective measures to crush gangs which thrive on begging in an organised manner. Provision should be made to open more beggars’ homes where training in various crafts and trade provided to earn money. Such an effort will help the inhabitants to lead an honourable life. Instead of offering money to beggars, people should encourage them to work and thereby help them earn their living. From time to time operation such as “Operation Smile” “Operation Rakshane” (“To Save) should be operated by the police officials to rescue children. It is the responsibility of both; the Indian society as well as the government official to fight with child begging and provide a dignified life to our future generation. Thus we can say that, zero tolerance policy on child begging is far from the goal but still there is hope. References Central Bureau of Correctional Services, (1971), Begging by Children: How Many of Them are kidnapped? Central Bureau of Correctional Services. Central Bureau of Correctional Services, (1971), Begging by Children: How Many of Them are Kidnapped?, Central Bureau of Correctional Services. Iqbal, Rubina (2013), Begging: A Growing Menace in India, International Journal of Advance Research in Management and Social Science, Vol. 2, No. 8, August. pp. 36-62. Thukral, Enakshi Ganguly (2002), Children in Globalising India: Challenging Our Conscience (ed.), Shahpur: Centre for Child Rights. Weiner, Myron (1991), The Child and the State in India: Child Labor and Education Policy in Comparative Perspective, Oxford: Princeton University Press Malik, Mehak (2012), Street Begging in Delhi: A Study of Anti-Begging Act and Institutional Arrangements for Homeless People, New Delhi: Centre for Civil Society. Kaushik Anupma (2014), Rights of Children: A Case Study of Child Beggars at Public Places in India, Journal of Social Welfare and Human Rights, March 2014, Vol. 2, No. 1, pp. 01–16 Chopra, Geeta (2015), Child Rights in India: Challenges and Social Action, Delhi: Springer. Thukral, Enakshi Ganguly and Thukral, Parul (2011), India Child Rights Index, New Delhi: Centre for Child Rights

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Parental Expectation: An Intrusion to a Child’s Right to Life Ranjeeta Mukherjee

Abstract Child, the most precious gift of one’s life, not a single parent can ever even think to hurt or to create suffocation for their child, their thought is always pious they want their child to lead a happy and prosperous life but sometimes their over protectiveness or to some extent their expectations intrudes the child’s right to life creating stress and anxiety for the child. In this chapter an effort has been made to introspect within the psycho legal aspect of a child’s development and protectiveness of the parents in the era of stress and competition and how it is officious to the right to life of a child.

“Sorry papa I let you down, I couldn’t fulfill your expectations” This is an excerpt from a suicidal note written by an adolescent in the neighborhood, only child of his parents, and a student of std. XII, who has ended his life just a day before his result was declared. Relationship is vital for everyone’s life, our life revolves around the relationship may it be relation between spouses, friends, siblings, cousins or between parent and child but, in the contemporary world there arise a question that what has happened that the values of relationship are detoriating in fast pace, why there exist a bitterness in the relationship?

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Relation may be of many a kind personal relationship or professional relationship and as the life proceeds there emerges more relationship like relation between friends, between neighbours and so on. But there arises a question that what has happened in today’s world that we are going away from one another though with the advancement of technology the entire world seems to be shriveled, people are now closer to one another, communication becomes faster, still psychologically we are going far from one another. The relation between parent and child is said to be the most beautiful and sanctimonious of all kind of relationship that exist in this world. But now a days there exists qualm over this relationship as well. A universal fact is that the mankind cannot survive without children, thus out of the basic instinct of self preservation there leads to have a child. Child is the most precious gift of one’s life. Each and every individual longs to have a child in their life. It is said that one’s life completes a circle when they are blessed with a child. The child during the early years of their life are most dependent, they are in need of care, protection and guidance and these are normally been provided by parents and care givers and with the emergence of new abilities and capacities, the nature of their vulnerability changes from infancy through adolescence but at each stage the need for attention and guidance remains the same. It is the key responsibility of the parents and that of the communities to protect the children and have care for them and to instill the culturally relevant skills, stance and outlook within them. The term children or childhood has got no universal definition. It cannot be considered only as a stage of physical and psychological development of a human being rather it is a social and cultural edifice. Article 1 of the Convention on the Rights of the Child states that “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”1 1

Committee on the Rights of the Child, General comment No. 20 (2016) on the implementation of the rights of the child during adolescence

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The word “child” got varied definitions in terms of age both in international and national legal paradigm and as such various provisions for the overall development of a child also varies as per there age group. The definition given by Convention on the Rights of the Child is considered as a point of common reference as far as international organizations are concerned though NGOs and government’s operational definitions in the field may differ. There are different age groups of children taken into consideration in different provisions of the Constitution of India itself for example for free and compulsory education the age group of 6 to 14 years has been considered as children2, in the directives given to the states to provide early childhood care and education the children below the age of 6 years are considered3 while providing duty towards parents and guardians for providing opportunities for education the age group considered is between 6 to 144. Apart from this the various legislations pertaining to children and their rights considered varied ages for defining the term child somewhere it is 14 or 15 whereas in the other completion of 18 years of age has been taken as a benchmark for a person to be considered as a child. The Child Labour (Prohibition and Regulation) Act, 1986: “a child as a person who has not completed fourteenth years of age”5 Similarly a person who has not completed fourteen years of age are considered as a “child” under the and the Beedi And Cigar Workers (Conditions Of Employment) Act, 19666, here in this Act the word adolescent has not been used rather the word young person7 has been used which is having the definition similar to that of adolescent in other 2

Article 21(A): all children between the ages of six to fourteen should be provided with free and compulsory education. 3 Article 45: the state should provide early childhood care and education to all children below the age of six. 4 Article 51(k) states the parents/guardians of the children between the ages of six and fourteen should provide them with opportunities for education. 5 Section 2(ii)”child” means a person who has not completed his fourteenth year of age 6 Section 2(b):”child” means a person who has not completed fourteen years of age. 7 Section 2(q): “young person” means a person who has completed fourteen years of age but has not completed eighteen years of age

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Acts. According to the Factories Act, 1948, Motor Transport Workers Act 19618 and Plantation Labour Act 19519 a person who has not completed the fifteen years of age is considered as a child and who has completed fifteen years of age but has not completed eighteen years of age are termed as adolescent. The word child has not been defined in the Mines Ac, 1952 here only the word adult has been defined as a person who has completed the eighteen years of age as such it can be considered that those who has not completed the eighteen years of age is a child. Again though the word child has not been defined in the Merchant Shipping Act 1958 and Apprentices Act 1961 but a prohibition has been made for a child below fourteen to work in occupations of the act. Now as far as criminal liability is concerned since criminality depends on status of mind as such the concept of doli incapax is applicable in criminal law of the land and no child below the age of seven10 may be held criminally responsible for an action under the Indian Penal Code, 1860 and where the child is having lack of ability to comprehend the consequences of the action committed the age of the criminal delicacy is been raised to twelve years.11 While regarding the sexual consent a girl is eligible to give consent only if she has completed the sixteen years of age if she is unmarried and if she is married she can give consent if she has completed the fifteen years of age and so far as protection against kidnapping, abduction and related offenses are concerned the given age for boys is sixteen for boys while for girls is eighteen. The latest law enacted which is to a large extent considered an umbrella act of child rights and protection defines child as a 8

Section 2(c):”child” means a person who has not completed his fifteenth yearSection 2(a): “adolescent” means a person who has completed his fifteenth year but has not completed his eighteenth year 9 Section 2(c):”child” means a person who has not completed his fifteenth year Section 2(a): “adolescent” means a person who has completed his fifteenth year but has not completed his eighteenth year 10 Section 82: Act of a child under seven years of age.”Nothing is an offence which is done by a child under seven years of age.” 11 Section 83: Act of a child above seven and under twelve of immature understanding.”Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”

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person who has not completed eighteen years of age. Further regarding the marriage, adoption, guardianship or maintenance the age of majority is eighteen years except the Prohibition of Child Marriage Act, 2006 which upholds twenty one years as an age of majority for a male and eighteen years for a female. Though the definition of child varies from one Act to other and to every Act the definition is based on age of the person but the motive behind all is to ensure the rights embodied to each child without discrimination of any kind and also to recognize that according to the legal dome the definition of child varies and according to the need the implementation of rights should take account of overall development of the children and their embryonic competence. But as per the societal norms the definition of child depends on their dependence upon their parents or guardians and thereby also there is a differentiation according to stages i.e., infants, child and adolescents. The adolescence is the age when a child undergoes radical psychological and physical changes and to ensure the realization of their rights the approaches adopted differs significantly from those adopted for younger children. This is the stage of life which can be exemplified by sprouting prospects, competence, aspiration, vigor and inventiveness, but also considerable vulnerability. Many of them are somewhere stuck amid the peer pressure, digital world and social media environment as all these plays a central role in their education culture and social networks and hold imminent in terms of political rendezvous and keeping an eye on answerability. Relation between a parent and child starts since the day fetus comes to the mother’s womb. In the today’s fast paced life child bearing, giving birth to a child and bringing up the child is not so natural as it was just a decade back. Today’s generation is more efficient and well to do than the forerunners are both intellectually as well as financially. It has been found that now a days would be parent are attending classes regarding bringing up of the children that is to say now a day’s everything is planned like what to eat, how to behave, what to do and not to do during pregnancy and post pregnancy and even what quality of life one is going to give their child

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is been planned and the motive behind this is very pious, everyone wants to give best to their child, everyone wants their child to be the most successful in their life, they have the desire that what they have not achieved but have dreamed of must be achieved by their child. There is nothing wrong in these thoughts rather these are commendable but as soon as the dream of parent goes to such an extent that it starts creating suffocation to the child it’s become worrisome and that is what is happening in the today’s world, stress becomes a part and parcel of everyone’s life and it takes toll by creating a vacuum between the relations. It is said that the generations’ children are getting emotionally weaker as compared to their previous generation. There is a thought prevailing amid the parents that their child is an extension of themselves and as such they don’t consider a child as a separate human being. Though children and adolescents are treated as short adults but in practical parlance they are different qualitatively and to enable their healthy growth and development, they have different emotional, physical and societal needs. During the early years when the children are most dependent they are in need of care, protection and guidance which is basically provided by the parents or guardians and this need of attention and guidance remains though from infancy through adolescence the nature of vulnerability changes due to their promising talents and competence. It is the primary responsibility of the communities in general and parents in particular to protect and care the children and at same time inculcate the culturally relevant skills, attitudes and ways of thinking. While doing this the methods adopted are sometime nagging by the parents, chiding and even sometime corporal punishment to the child. In home application of corporal punishment is not unlawful rather to some extent law provides legal

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defence12 for the use of corporal punishment in the child rearing though the defence is subject to certain exceptions. Even the National Charter for Children 2003 makes a provision whereby corporal punishment or any kind of punishment which is having impact over the child’s physical, emotional or psychological health is required by the state to prohibit.13Even there are certain principles which are literally been incorporated in the

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Act done in good faith for benefit of child or insane person, by or by consent of guardian.— Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provisos—Provided—(First)— That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;(Secondly)—That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; (Thirdly)— That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or griev­ous hurt, or the curing of any grievous disease or infirmity; (Fourthly)—That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. Illustration A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a surgeon. Knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death A is within the excep­tion, inasmuch as his object was the cure of the child. 13 Article 8(f) of the National Charter for Children, 2003: The State shall ensure that school discipline and matters related thereto do not result in physical, mental, psychological harm or trauma to the child or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver. (x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. (xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process. (xii) Principle of institutionalization as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry. (xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest. (xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances. (xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole. (xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.

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Juvenile Justice (Care and Protection of Children) Act 201514 Section 3:General principles to be followed in administration of Act: The Central 14

Section 3:General principles to be followed in administration of Act: The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:– (i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years. (ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights. (iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child’s views shall be taken into consideration with due regard to the age and maturity of the child. (iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. (v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be (vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter (vii) Positive measures: All resources are to be mobilized including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act (viii) Principle of non-stigmatizing semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child. (ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver. (x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. (xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process. (xii) Principle of institutionalization as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry. (xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest. (xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances. (xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole. (xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.

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Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:–– (i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years. (ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights. (iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child’s views shall be taken into consideration with due regard to the age and maturity of the child. (iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. (v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be (vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter (vii) Positive measures: All resources are to be mobilized including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act (viii) Principle of non-stigmatizing semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child. (ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the whereby it has clearly been mentioned that

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whatever may be the condition a child shall be treated with equal dignity and rights, all decisions shall be made taking into consideration that they are in the best interest of the child and shall be helpful to develop the child to its full potential, it is also been mentioned that a child safety should be ensured but whatever may be the provisions inculcated in the Indian legal regime, the provisions against child abuse are not interpreted in such terms as the corporal punishment in child rearing can be prohibited even in the National Policy for Children, 2013 which was adopted in April 2013 whereby provisions are been made to protection to children against all forms of violence but there also corporal punishment in connection to education is taken into consideration. The period of growing up starts from the day a child takes birth each day is a learning day for the child till the age of two a child learns of their own by observing the things happening around them, as the parent have not started teaching anything but gradually one starts teaching the child specially they are been taught what is right and what is wrong for them. But since the child is too small, during this period whatever they do or speak appears very pretty for the parents and the family and the child remains as a point of attraction of the entire family. Gradually the child got habituated with this attention being given to it and its mind start, most often and so, generating a deep rooted belief system. But as the child grows and specifically when a child enters to his/her adolescence the entire scenario start changing gradually as the child got his wings now and wants to fly creating a whole new insecurity for the parents, a new conflict begins between the child and the parent, the parent think he is still a child and is unable to differentiate between right and wrong and the child thinks that parents are overprotective, they are not trying to understand his desires and are imposing their thought over him. Actually in the initial stages of life the child is only under the influence of his parents and does exactly what his parent wants him to do giving the parents a view that child is under their control but as the child grew up there a lot many thing which influences the child it might be his peer group or his teachers or even media and there begins the conflict. There are certain kids who revolts but there are others

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too who can’t and they often become introvert, tries to avoid sharing his views, they snuggle within a self created shield. Here the parent’s perspective can’t also be blamed since whatever they are doing the intention behind it is very pious, they want their child to have everything what they couldn’t have. Moreover it is a view prevailing in the society that a child is just an extension of their parents and being a creator the parents have all right to do anything to make their creation flawless and that is what happening in today’s world. Now a day’s everyone wants their child to be perfect in all aspects of life be it in academics or sports or some extracurricular activities or in the social life, a parent want his child to be the best. In today’s society everyone is running to be in the zenith, some reaches and some doesn’t but in both the situation the desire to reach the pinnacle remains within the person and those who have achieved wants their child to be like them and to be the achiever like them or even to go beyond them and at the same time the person who has not been so much successful, as they think so, the force over the child is much higher as they want their child to achieve those things from which they are lagged behind. In most of the cases while doing so the parents think that they are doing nothing wrong, they are securing the future of the child and if a question been raised what about the desire of the child, in most of the cases it is been answered that we are not the foe of our own child whatever we are doing is for the better life of the child, they are immature how can they be allowed to take decision of their own, we cannot leave their life at stake. The most paradoxical is that when a parent is been asked that whether they are imposing their thought over the child, the answer is always that no, we never have imposed anything over the child he/ she is free to do what they want to do at least so far as career selection is concerned but the fact is that yes, the child is given the opportunity to voice their desire and if the desire of the child differs from that what their parent has decided is right for them, most often or not, the parent tries to make understand the child and to convince that nothing can be more perfect than what they are planning for him/her but still if the child wants to continue with his/ her plans then the parents tell the child move ahead with whatever you want to do but remember you solely will be responsible for your

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decision, we will not be there with you. Now what will be the mental status of the child who is just in a stage of his growing up and in most of the cases the child got scared of what if he/ she won’t be able to handle the outcome and consequently gives up and start treading the path shown by their parents. Sometimes, even though they are excelling in all aspects of their life making their parents proud but since they are not living their dream, there remain something missing in their life and even in many a cases a shadow of depression follows the child and that is the reason why from last one decade the need of a child psychologist or counselor has increased to a large extent. Not only this suicide has emerged as a problem affecting globally and in India there is an alarming rate of increase of suicide cases per year. It is a personal tragedy whereby the life of an individual is taken away prematurely and has a ripple affect over the lives of families, friends and communities. Every year, more than 1,00,000 people commit suicide in our country due to various causes like professional/career problems, discrimination, sense of isolation, abuse, violence, family problems, mental disorders, addiction to alcohol, financial loss, chronic pain etc. There is a increase from 1.8% in 2014 to 2.0% in 2015 in suicide rates due to academic failure, 13.8% of total suicides committed by students were reported in Maharashtra (1,230 suicides) followed by 10.7% in Tamil Nadu (955 suicides), 7.6% in West Bengal (676 suicides), 7.0% in Madhya Pradesh (625 suicides) and 6.7% in Karnataka (597 suicides).15 Every other day one incidence of suicide or other get its place in the headlines of the newspaper and the number is more towards the higher side when result of board examinations are declared or when the result of competitive entrance examinations are declared. The reasons might be psychological, socio-cultural, neurological or cognitive process even if one goes through the excerpts from the suicidal notes from the youngsters like “Papa please forgives me, now I don’t want to live more.” “Gold medal nahi to mai bhi nahi.,”Mai apke ke liye kuch na kar saki, mujhe maaf karna.” it can be perceived that most of the suicide committed by a 15

Report on Accidental Deaths and Suicide in India, 2015, NCRB available on http:// ncrb.gov.in accessed on 25/05/2017

Parental Expectation: An Intrusion to a Child’s Right to Life

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child not because they got fail in examination rather the main reason of committing suicide is that they are not come up to the expectation of their parent and they have let down their parent. Parent, teacher, councilor or mass media can play a vital role to prevent suicides at individual level, family level, community level, and religious level. It is high time to that the teachers and psychologists must come up immediately for intervention in sensitive cases, not only this the parent should be sensitized enough to understand the psychology of a child, to respect the inner spirit of the child and to realize the fact that every child is unique within themselves, so neither they should be compared nor should be compelled to do the things which they don’t wish to do. We are in the high end to have a vital need for edification, guidance and focused modus operandi to deal with suicidal clients. Undeniably suicide is a very severe public and psychological health problem, whereby urgent intercession or action is needed. There are certain model such as “cry of pain” to discern into the suicidal behavior as an effort to flee from a feeling of entrapment as in most of the cases these individuals have a view that escaping from an external state of affairs or from their own inner commotion is near to impossible and they are left with no prospect of rescue16 and ultimately the only way out left to them is to end their life. It is difficult to ascertain the authentic data on attempted suicides as a lot of attempts are depicted as accidental in order to avoid entanglement with police, courts and media. Conclusion Everyone around us claims to have a right to life as a fundamental right vested by the apex law of the land i.e., the constitution of India but what about the right to life of a child, when asked from the parents or guardians the answer is always that whatever they are doing are for the betterment of the child, this is one perspective but when viewed from the child’s perspective sometime and somehow this over protectiveness of the parents is creating suffocation for the child, they are choking while fulfilling the 16

Modi Ritu, Abha Singh, Suicides in India and Its Preventions, Shodh Sanchayan,Vol. 3, Issue - 2, 2012, available at www.shodh.net, accessed on 24/05/2017.

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expectations and desires of their caregivers and that is the reason why the dynamics underlying suicidal behavior involves more than hostility, feeling of abandonment, helplessness as well as the emotional states of guilt, rage, anxiety and dependency. More than one fourth of total suicides committed in India is been committed by those students for nonattainment of expectations and amid the adolescents the foremost reasons are failure in examination, parental pressures, high expectations of school and colleges, disappointment in love and conflicts. Now this is the high time that we, the grownups should start considering child as an individual being as once they are considered as an individual accepting that they too have a “right to life” will not be difficult and moreover this right is not a singular right rather it contains a bundles of rights within itself. Not a single parent can ever even think to hurt or to create suffocation for their child, their thought is always pious they want their child to lead a happy and prosperous life but the only shortcoming is that the path adopted to reach the goal and now if both parent and child can sit and have a dialogue regarding their respective line of thinking, provided both are willing to have a dialogue in clean mind with a mind set to accept the best one of the two without having any prejudged notion, then obviously they will come up with a way out and if this happens rather if this is made to happen then a parent would never need to carry the corpse of the apple of their eyes.