Child Rights Protection In India: Issues and Challenges By - Barry Thukral

Child Rights Protection In India: Issues and Challenges

Authored By - Barry Thukral

Abstract    
  The essay aims to provide a brief overview of the commitments which India has made to safeguard the rights of children.  India’s uniqueness in terms of its demography, human resources, planning & governance, legislations and policies should be appropriately studied and understood, to fathom the challenges and carve the way ahead. As India aspires to be a superpower, it has a mountain to climb in terms of ensuring the care and protection of its most vulnerable segment which is the children.  The essay, in the initial segment, briefly attempt to dwell on the concept of ‘child’, child rights in India, the scenario of child rights in India, as also, the framework in place which seeks to protect child rights.  In the latter segment, the essay highlights the challenges on the way to realise child rights, as also a few key way-ahead.
 
Introduction
 The Republic of India, in its attempt to ensure the material, economic, societal and material wherewithal of all its citizens, has certainly made historical grounds, however, there looms a big challenge in terms of responding to the myriad complexities intricately linked to the overall development and wellbeing of all segments of the society.
There is a requirement of a strong and holistic functional framework for the protection, promotion and pursuit of the human rights of children through implementable policies, effective law and proactive actions. We should aim to look at child protection  in an integrated manner where every child's rights are recognised and promoted without discrimination

By being young, physically weaker, small and inexperienced, children require support and care from elders to function and develop. They are dependent on their parents, relatives or other institutions (government/non-government) for nutrition, clothing, shelter, education and health needs. 
Children, as universally accepted or mostly agreed upon, have claimed over those resources and services which would enable their care and protection.  Most children are not aware of their rights, and elders and other supporting institutions must not only ensure that the children exercise their rights, but also put robust efforts to create awareness in children about the same
Despite several child protection and care mechanisms such as policies, programmes, legislation and institutions, the condition of a large chunk of the children population in India remains vulnerable to exploitation, human trafficking, severe malnourishment, abuse, homelessness etc.,  which necessitates evangelism  of child rights and to raise awareness 

Child Rights
These are the rights granted to the children by the state in which the child resides as its citizen.  These are entitlements that are guaranteed by the state, as it has the responsibility or obligation, as also, the capacity to sustain them.  The function of these rights is to ensure the overall development and protection of a child. 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.

Historically, child rights were not understood or articulated separately from Human Rights. The 1948 United Nations Declaration of Human Rights (of the UNHR) was a pioneering effort to universalise the concept of human rights, with children technically included in the same cohort as adults.  As several nations gained independence, the political, economic and societal situation needed manifold improvement, and this provided an impetus for a shift in the governance model, wherein, there was a gradual shift from ‘survival’ to ‘development’ model– and it was simultaneously realised that children have a specific set of needs for protection and care and that a different approach for the protection and care was needed.  

Despite 30 articles, many of the specific needs of children for care, protection and dignity were not getting addressed by the UNHR. It was only during the 1970s and 1980s that the concept of child rights emerged. This shift came because children were no longer being looked at as properties of parents, but individuals who came with their life forces.  There was a recognition that children have interests, requirements, needs and perhaps even rights that should be considered distinctly and separately from those of their parents and adults. (Chopra, 2015).
The United Nations Convention on the Rights of the Child is an international human rights treaty that sets out the civil, political, economic, social, health and cultural rights of children.  The Convention defines a child as any human being under the age of eighteen unless the age of majority is attained earlier under national legislation. (The Office of the High Commissioner for Human Rights n.d.) Nations, via this convention, agreed to give rights and privileges to children across the world. The convention sets a benchmark to which the nations must aspire vis-a-vis child rights.   The 1989 UN Convention on the Rights of the Child (UNCRC) was ratified by 192 nations.  India ratified it on the 11th of  December 1992

The convention has several articles focusing primarily on protection, provision and participation. The convention mandates protection of children from cruelty, abuse, neglect and delinquency and further appeals to the states to fulfil the health, nutrition, shelter, nationality (identity) needs.
           
‘Child’ and Child Rights in Indian Context
It is important, and also interesting,  to understand the concept, or rather, the legal definition of ‘Child’ in the Indian Context. The term ‘child’ has been defined (and hence, understood) differently in different acts. The Constitution of India and Child Labour (Prohibition and Regulation) Act 1986 defines a ‘child’ is defined as a person below 14 years of age. The census of India defines a child as a person under the age of 14 years. The recently amended Juvenile Justice Act 2015 states that children (16-18 years) may be treated as adults if they commit heinous crimes such as rape, acid attack, murder, etc.  The National Plan of action for children 2005 describes all persons under the age of 18 years as children. It would be fair to argue that the general view is that since India has ratified the UNCRC, it should maintain the definition of a child as an individual under 18 years of age
Approximately 40 per cent of India’s population is under 18 years of age, which is higher than any other nation in this world. Article 39 (f) of the Indian Constitution states that “children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and material abandonment”. India has signed several international agreements in respect to its commitment to the protection of child rights. The government has made several attempts via laws, policies and programmes to safeguard the interest of children, however, millions are denied their rights due to structural gaps and insufficient outreaches.  ‘
 
Despite several efforts, the performance of India internationally in respect to the situation of children has remained dismal.  India has repeatedly ranked poor on several key counts. Human Development Index (HDI) measures the achievement of countries on three basic dimensions of human development: a long and healthy life, knowledge and decent standard of living. It includes indicators about children like the IMR, status of education and child labour.  As per the 2020 rankings, India ranks 131 out of 187 on the HDI.
The Child Rights scenario in India faces several challenges due to overpopulation, lop-sidedness in terms of their distribution, scanty nature of service’s availability, illiteracy, poverty etc.  The overall or the collective hierarchy of need often finds the child right protection at a much lower level.
 
Children in Difficult Circumstances or ‘CIDS’ as a term refers to those children who are subjected to several physical and mental health risks for a certain duration of in their lives, facing a dearth of care and protection which often pushes them outside the mainstream society (UNESCAP, 2008) 
In the Indian scenario, the number of children in CIDS, as can be anticipated, is quite sizable.  A whopping 12 crore children are working as child labour, while those working in hazardous conditions are around 8 crores (ILO, UNICEF, JUNE 2021).  Back in 2009, an estimate was made that around 1 crore children were trafficked around the world for prostitution, slavery and pornography. (ECPAT, 2009). Approximately 40 per cent of the prostitutes are under 18 years of age (Childline India, N.D).
 
India’s draft National Plan of Action for Children 2016, recognises and highlights the nation's duty and dedication to ensure care and protection of the rights of its children and the Children in Difficult Circumstances (CIDC) are the primary targets.

As per an estimate, nearly 40 per cent of the children in India are facing difficult circumstances, wherein they deal with vulnerabilities associated with living without the support of their families, having to do forced labour, being abused or trafficked, living on the streets, involved in substance and drug abuse, or affected by natural or manmade calamities.  The crucial requirement is ensuring that their survival, nurturing and protection is ensured. These children require support and care via all mediums. (Ministry of Women and Child Development 2011)
 
Provisions in the Indian Constitutions in respect to the protection of child rights
The Constitution of India has, so far, played a crucial role in, at least, creating a framework that promises to safeguard the interests of its children.  While there exist several articles which ensure the welfare and protection of each citizen’s (including children) interests, some of them specifically deal with the care and protection of children.
Article 15(3) of the Indian constitution states that while the State shall not discriminate against any citizen, nothing stops it from making any special provision for women and children.   Article 21A mandates free and compulsory education to all children of the age of 6–14 years, which the State must fulfil.  Article 23 emphasises the role of the Constitution in prohibiting trafficking in human beings.  Article 24 seeks to abolish child labour, wherein it specifically mentions that no one under 14 years of age to be employed in factory/minefields or any other hazardous employment.   Article 39(f), as part of the Directive Principle, instructs policy to be formulated in such a manner that it facilitates opportunities and facilities for children to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and material abandonment.  Article 45, again, instructs the State shall provide early childhood care and education for all children until they complete the age of 6 years.

Legislation and Policy Frameworks to Protect
 the Child Rights
All Children, while having the same rights, are certainly not in the same set of situations.  Several laws and policies have been put into place to address children in various age groups and circumstances or categories.  A brief overview of some of the key legislation  is as follows:
The Protection of Children from Sexual Offences Act: This act brought into the picture, a strong legal mechanism to address the offence against children which are sexual in nature. The act primarily provides for the safeguard of the child’s interests during every stage of the legal proceedings along with the speedy trials via special courts.
 
 The Child Labour (Prohibition and Regulation) Act:  This act defines a child as a person under 14 years of age, and seeks to protect them from being employed. It does allow children to help their families in occupations that are non-hazardous. 
 
Juvenile Justice (Care and Protection of Children) Act: This is the main legal framework which not only deals with ‘children in direct conflict with law’, but also with those children who are in need of care and protection. It provides for comprehensive mechanisms for the attainment of care, protection and rehabilitation. The recent amendment to this act has now enabled the trial of persons in the age group of 16-18, who have committed heinous crimes, as adults.  The decision, whether the trial would be conducted in the adult category, would be taken by the Juvenile Justice Board which, besides having the presiding magistrate, would also comprise a social worker and psychologists, one of them would have to be a woman.

The Right to Education Act: Mandates not only free and compulsory education for children aged between 6-14 years but also elaborates on the modalities to be followed to enable appropriate accessibility of education to each child (up to 14 years). It also lays guidelines for private institutions to incorporate 25 per cent of students from economically marginalised backgrounds. The act also emphasises improving the overall quality of education via., trained staff, adequate infrastructure and standard practices.
The Prohibition of Child Marriage Act: The main purpose behind the enactment of this act is to categorically abolish child marriage from society. Child marriages increase not only the health risk associated with early pregnancy, premature birth, but also often deprived individuals of education opportunities and social integration. 

Some other important legislations/policy frameworks are: The Guardian and Wards Act,  The Factories Act,  Hindu Adoption and Maintenance Act, The Orphanage and Other Charitable Homes (Supervision and Control), Immoral Traffic Prevention Act, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, The Prenatal Diagnostic Technique (Regulation, Prevention and Misuse)  Act, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act.

Integrated Child Protection Scheme, popularly known as ICPS has been launched by the Government of India as a comprehensive and centrally sponsored scheme that aims at providing a safe and secure environment for the children of the country. The ICPS draws under its umbrella several existing child protection programmes and also initiates new interventions.  This scheme would function around the partnership of the government and civil societies. This scheme uses the already present machinery for children needing protection such as the CHILDLINE Services, the shelter and rehabilitation institutions created or functioning under the JJ act. Institutions such as the adoption agencies, crèches, aftercare organisations will be enhanced and empowered. Sponsorship would be given to marginalised families. Within the purview of the ICPS, initiatives such as counselling, training, research and capacity building will also be promoted.
 
The National Plan of Action for Children or NPAC was released by The Ministry of Women and Child Development released 24th January 2017. The Plan covers four priority areas of child rights; (i) survival, health and nutrition; (ii) education and development; (iii) protection and (iv) participation. It takes a sustainable, multi-sectoral, integrated and inclusive approach and focuses on strengthening the initiatives so that they can protect the rights of the children. The plan also highlights new and emerging concerns for children such as online child abuse, children affected by natural and man-made disasters and climate change, etc.
 
Challenges on the way
It wouldn’t be unfair to say that the childhood of millions of children in India is under acute threat! Millions being employed in various work set-ups (including hazardous ones), large scale migration of rural population to urban for finding livelihood, children living under open sky due to poverty induced homelessness, unhygienic surrounding due to ghettoization, trafficking, prostitution, petty (and often heinous) crimes, and even slavery in many cases are the reasons to believe so.  Bleak conditions in which these children are growing, which reflects in the several indicators related to children, are big challenges which we face as a society.  Earlier this year, a report published in the HINDU newspaper released the response of the Women and Child Development Ministry, to an RTI from the Press Trust of India, which stated that in India, at least 9.2 lakh (almost a million) children living in the country were ‘severely acute malnourished’. Most of these children were from the northern belt (UP and Bihar mostly).  The data also highlighted the concern around the ongoing pandemic, which can play a huge role in deteriorating the situation with respect to nutrition and the overall health of the economically marginalised section of the poor.  It wouldn’t be incorrect to assume that this data is underreported, as the data collection was done by the Anganwadi centres under the directives of the state governments. Under-reporting of data has been a structural challenge and it is often not based on independent surveys.
Similarly, most of the cases in respect to sexual offences and child labour are not reported due to fears such as social stigma, ostracisation and even violence. Data plays an important role in not only charting out the scale and intensity of the problems, but also the strategy development, resource and service distribution for addressing the issue appropriately.

Lack of adequate funding for child Care and Protection framework: The Indian Government has often emphasised that it is dedicated and committed in respect to the protection of the rights and welfare of the children, however, the scale of grants for social security provisions for children hasn’t quite corroborated the promises. The government has launched many schemes such as Mid-Day Meal Scheme, Integrated Child Development Services (ICDS), Integrated Child Protection Scheme (ICPS), ‘BetiBachaoBetiPadhao’ campaign, SABLA, SAKSHAM etc. Without adequate fund infusion, most schemes and provisions will have a sub-optimal impact.   There has been a reduction in the budget allocation for children’s welfare or inadequate allocations.  In the union budget presented this year, the centre has allocated INR 2,700 crore for the nutrition of children and women, which is 27 per cent less than the budget estimates of INR 3,700 crore on nutrition in the last fiscal year of 2020-21. (Gupta, Shivani, Feb 2021, Gaonconnection). Similarly, there is a reduction for education by 6 per cent, whereby the grant to the MHRD has been reduced to INR 93,223 crore from IN 99,311 crores, as per the budgetary proposals. (The Economic Times, Feb 2021)
Another challenge on the same line is the non-attractive or mediocre salaries offered to support staff such as social workers, caregivers, Asha and Anganwari workers. Compared to other sectors, the pay is generally low and hence often doesn’t appeal to their passion. Often, this sector witnesses a higher attrition rate of highly skilled workers.   It is important to invest in quality professionals so that they carry out their roles effectively.
 

Low quality of services: The poor quality of education provided by government schools has often been criticised, which is one of the main reasons why the middle class and upper-class segment of the society usually opt for private schools for educating their wards. With the number of educated unemployed youth skyrocketing, the value of quality education is at the highest.  Often, harsh or unwelcoming attitude the educators, not up-to-date curricula, lack of teaching resources, etc., dissuades children, especially from economically deprived families from going to these schools (Anker and Melkas 1996). Often the limited budget precludes the school’s ability to conduct community outreach, hiring of staff, infrastructural development, modernisation in terms of IT environment etc. Appointment related frauds have often surfaced in the news.  Often appointments are mismanaged due to political pressures.

Exclusion: Unfortunately not all children, who need care and protection, end up receiving the requisite support due to circumstances or lack of resources at their disposal.  It is very difficult to get the children living on the streets, or those engaged in labour, to support their families, to attend schools. Often children find themselves in difficult circumstances due to their parent, or relative’s situation or actions.  According to the World Health Organisation, around 15 crores girls and around 7 crores boys have been subjected to forced sexual intercourse or other forms of sexual violence. It is difficult to get even a broad estimation due to the sensitive nature of this violence. Most of such violence is carried out by family members, relatives, or persons who are known to the child. (Ministry of Women and Child Development, 2007)

Towards a better scenario
None of the rights can exist in isolation, and they work best at optimum synergy and higher interoperability and hence they need to feed into one another. 

If India, as a welfare state, aims to create a strong ecosystem of support, nurturing and protection for its children, it has to start from the most marginalised section of the society.
Child labour abolishment cannot be successful if we are unable to, parallel, come up with a plan which would rehabilitate the child and create circumstances for their families to sustain themselves.

At the legislation front, some serious rethinking needs to be carried out to ensure that laws are not toothless. Often these acts have several loopholes which eventually paves the path for impunities for the offenders. For instance, The Child Labour act does not categorically ban child labour. This notwithstanding, it is not sufficient to carry out the legal reforms alone. The effective measure is to spread awareness to sensitize the family, schools, workplaces and society in general.

There still exists a huge gap in terms of advocacy for the rationale behind several legislations and programmes developed for children. For instance, despite having legislation that completely bans child marriage, millions of girls are still married by their family members at a tender age, which is supported and sanctioned by their relative’s localities, and villages. While knowing the laws, they choose to turn a blind eye and go along with the ‘customs’, which are harmful to the child. This is primarily due to the fact that a large section of the population isn’t convinced enough to be able to make a breakthrough. Often the fear of stigma clouds their judgements. Often the awareness at the grass-root level itself is missing, and the social norms dictate terms. 
 
A robust advocacy framework needs to be created to gradually create a shift in the thought process. Mass awareness drives along with training and capacity development initiatives need to be launched.  The role of non-government organisations working at the grass-root level is very important in this regard. How these NGOs are functioning, often enables them to be better service providers than the government bodies. The NGOs work with a higher degree of independence and have better monitoring mechanisms. They primarily work on raising awareness in the community, networking and building capacity. Many join their workforce with a voluntary and passionate spirit which often adds great value to the efforts.

Another important way-ahead would be to maximise the joint-ness or partnership between all kinds of public agencies all across to enhance database management, fast-paced intervention, collaboration to reduce workloads, non-overlapping of services etc. Unfortunately, there exists a tendency to not work in a partnership unless and until mandated by higher government bodies or legislation.
 
The great Nelson Mandela has rightly said that a society is judged based on how its children are treated. India as a nation will never be a power centre unless every child residing in its land is provided with an opportunity to exercise his or her rights. The journey towards the protection of child rights will be a long one and can be best lived with synergies developed by everyone’s contribution.

References
1.                  Anker, R., & Melkas, H. (1996). Economic incentives for children and families to eliminate or reduce child labour
2. Chopra, Geeta. (2015) Child Rights in India: Challenges and Social Action
3. ESCAP (2008)
URL: https://www.unescap.org/resources/economic-and-social-survey-asia-and-pacific-2008
4. Gupta, Shivani. (2 Feb 2021), GaonConnection. Article titled Union Budget 2021: 27% drop in funds for nutrition of children and women. Every third child, under the age of 5, is malnourished in India
(URL: https://en.gaonconnection.com/union-budget-2021-27-drop-in-funds-for-nutrition-of-children-and-women-every-third-child-under-the-age-of-5-is-malnourished-in-india/)
  5. Ministry of Women and Child Development, Government of India. (2007). A study on Child Abuse: India 2007
6. Press Trust of India. (06 June2021), The Hindu Newspaper.
(URL: https://www.thehindu.com/news/national/927-lakh-severely-acute-malnourished-children-identified-till-november-last-year-rti/article34743642.ece )
7. UNICEF. (10 June 2021), Press Release. Child labour rises to 160 million – first increase in two decades
(URL: https://www.unicef.org/india/press-releases/child-labour-rises-160-million-first-increase-two-decades )
8. The Economic Times (02 Feb 2021) Budget 2021: 6% cut in allocation for education sector
(URL: https://economictimes.indiatimes.com/industry/services/education/budget-2021-6-cut-in-allocation-for-education-sector/articleshow/80640500.cms )