The issue of children’s rights in India must be viewed against the widespread poverty and high levels of unemployment, together with the migrant labour system, forced removals, inadequate housing, degradation of the environment and inequitable health, education and early childhood service provision which have all taken their toll on family life and the general welfare of children. A pervasive culture of violence, which includes the escalation of child abuse, wife battering and incest, forms the everyday fabric of a great many children’s lives.
Limited social and almost non-existent psychological services have added to the general deprivation suffered by many of these children in crisis, for whom the entire purpose of life is simply to survive. Their opportunity to be fully children is amongst the first rights to fall by the wayside. That children’s rights in India have been grossly, even criminally abused, cannot be called into doubt. The question is whether anything is being done to redress the situation. Indian law does provide specific rights to children. Child marriages are not allowed. Young children are protected against liability for crimes and civil wrongs they may commit. Children are protected against abuse by their parents through various statutory and common law provisions. Employment of children below the age of 14 is prohibited. Juvenile law contains a number of provisions aimed at the protection of children under the age of 18 who are involved in criminal proceedings. Specific statutory offences have been created in the Sexual Offences Act to protect children against sexual exploitation. Inspite, of the enormous impact of law upon the development of the children; the law has great difficulty in accommodating any social change. However this sluggishness of law has led to confusion and inconsistency which needs to be examined and questioned. Moreover, this sluggishness has given rise to the rights of the child movement which have participants both by the State as well as non-state actors. But the position and direction of the child rights movement is something which demands inquiry.
Children’s Rights Movement- Where are we now? The children’s rights movement in India is a unique phenomenon among the various “rights” efforts today. Nonetheless, it shares some superficial similarities with the other anti-discrimination movements. Children’s rights, like those women and adivasi movement, concern the role of an identifiable segment of our society which has traditionally been placed at a legal and social disadvantage. The children’s rights movement also espouses the reallocation of legal power as a means to correct this perceived imbalance.’ Further, it grew out of the same social currents, first apparent in the 1950’s and 1960’s, which produced the kindred civil rights efforts. The culmination of the Convention on the Rights of the Child in 1989 provided an impetus and a global direction to the movement. But India faltered and failed to walk down the said path. But a closer examination of the children’s rights phenomenon reveals differences which are much more fundamental. Of most importance is the fact that the children’s rights movement was largely created by and remains under the control of adults, a group not directly affected by the injustices sought to be corrected. The major organizations in the country which put themselves forward as the advocates for children function without any meaningful control exercised by youth.
Conflicting Goals: A closely related factor differentiating children’s rights is the limited and mostly conflicting goals sought within the movement. None of the current child advocates has seriously suggested that children should be treated on an equal basis with adults. John Holt, perhaps the leading figure in advocating children’s “liberation” from the legal strictures of minority, would still allow children the choice of remaining within the bounds of traditional childhood. ‘Only if and to the extent chosen by individual children themselves would Holt grant them the rights of adults. On the other end of the spectrum are those who would seek to retain and even strengthen the traditional legal restraints upon children. This gross divergence of opinion and goals within the movement is not surprising. Since children themselves play no substantial role in the movement, there is no common basis of experience from which the leaders can draw to formulate their goals. Collective social experiences form the basis for all group decisions and, ultimately, for all law. While the adults within the children’s rights movement share with all of us a personal past which includes childhood, such is inadequate to the task of formulating policy responsive to the “rights” of children. It lacks the emotional immediacy and social cohesiveness necessary for effective group decision making. The reality is that children, for at least part of their childhood, are in fact incapable of independently exercising the rights of citizenship. Children are born in a largely helpless condition and are dependent upon others for most aspects of their existence. The normal process of childhood is, of course, the gradual development of adult physical and psychological characteristics and capabilities such that the infant dependencies are eventually rejected. The age of majority, now generally set at eighteen is designed to correspond with the time of life when children are prepared for adulthood.
Right- The Push and the Pull : Two logically separate issues do, however, arise from this situation. First, does the legislatively established age of majority appropriately correspond with the emotional and physiological realities of childhood? In other words, do we delay childhood or certain aspects of childhood too long such that the burdens of minority become unjust? This question does not challenge the assumption that the legal status of minority should be placed upon all children for at least some portion of their lives. The second and more fundamental issue does not question the concept of minority either, but questions who should exercise power over the child’s life during minority and in what fashion. Are parents to be given complete decision-making power over their children or should substantial decisional authority also be exercised by state officials? The first of these issues, at what age should children be “liberated” from childhood, is essentially an issue of children’s rights. The second, dealing with the allocation of parenting power, is one of children’s welfare. These two concepts, children’s rights and welfare, are most often confused and distorted in meaning in both the literature and cases. While there are an enormous number of variations of content one can give to the term “right”, its essential meaning is the power of the individual to choose in any given area of life. Many within the children’s movement do not intend to alter the child’s status of legal disability, but still state that they intend to promote children’s rights. But in the midst of the child rights movement, the silence of the state to promote the rights of the children is a contempt. The unfettered power enjoyed by the State has miserably failed to give direction to the rights of the children. Today if we wish to promote children’s rights, we should make sure that children gain greater, not less, power over their lives.
(Jitamanyu Sahoo is currently working as a Research Associate at Centre for ComparativeLaw at National Law University, Delhi and Syed Mujtaba is lawyer at CNC IMHANS-K . Views are their own)
