Safeguarding child rights

Excerpts from Prof. Savitri Goonesekere's responses to Asha Krishnakumar's questions on child rights:

What is the difference between child rights and child welfare?

It is big. Originally we had the child welfare concept, which we have in our local traditions also. But our legal and social policy ethos has been powerfully influenced by 19th century Britain. Our laws are protection-oriented. Then there is the idea of giving hand-outs to children - a home, basic needs ... a sort of a soup kitchen idea. That is part of the welfare approach.

Like the poor law approach of Britain, we too have poverty laws. Under the English common law, you were not even obliged to support your families. Poverty was a failure, in a sense, and social intervention was preventive and became a burden on the community. This is very different from our tradition, but we have absorbed it.

Consequently, even NGOs (non-governmental organisations) worked to provide mid-day meals or to humanise working conditions for child labourers, but not to address the structural problems of the violation of childhood. This is a welfare approach and is all-pervasive.

Under the rights approach, you still have protection - from exploitation, from adults making decisions and so on. But it also comes with the recognition of the right to childhood - education and health for instance, and the right to make decisions in matters that affect the child as he grows into adulthood (such as marriage, career and so on).

Crucial is when you move from welfare to rights - you include the traditional welfare approaches, refashion them, and also add on the rights of development, participation and so on, to it. That is a very important focus, which the NGOs in particular must relate to. I am glad to see that the Indian Council of Child Welfare has already done that.

What does the Convention on the Rights of the Child (CRC) say? And, what does it mean to the country that ratifies it?

The Convention on the Rights of the Child encompasses several rights. The first are the "protection" rights. Then you have a group of rights for "survival and development", which are for health, education and so on. Then there are the "participation" rights, though this does not mean two- and three-year-olds need to be consulted on everything. The idea is that the child must grow to recognise its own voice and to respect those of others. This right of participation is also grafted in child's rights.

The CRC's definition of child rights is a complex agenda. By ratifying the CRC, countries commit themselves to achieving the range of rights.

Then, of course, it has the core right of non-discrimination - all rights for all children. That is, removal of all disparities - ethnic, cultural, gender and so on.

Then it has the rounded concept of the best interest of the child. Some people may argue that if a child is raped, then she has no future and so the best way out is to marry her off to the rapist as it is culturally good for the child. But, under child rights, this is totally unacceptable as it violates all other rights. So, the best interest of the child must not be seen in a narrow concept of that of the community, but in relation to all the rights.

Are enforcement strategies built into the CRC?

The CRC is the only convention that has the concept of people's participation in the assertion of rights. It is the only one that says that the state has an obligation to disseminate information. Also, it is the only convention that specifically gives NGOs the right to participate in hearings. Its guidelines have influenced other conventions as well.

What is the relevance of the CRC to India? Several laws exist, but are not implemented, and some of the worst forms of child labour are practised here. Why is it so? What can be done about it?

We are impressed with India's economic growth. But I hope it is sustained. I do not think any society that pursues economic growth as the only goal and ignores its social problems can sustain its growth.

I think, therefore, the rights perspective helps India because as a ratifying party it can tell multilaterals and private investers that `this is the bottom line for our country'. It can say that `our Constitution and Supreme Court decisions have to be respected'. It can make clear what it can and cannot do, and forge partnerships with other countries and give leadership in that regard. So, I think, the human rights discourse is critical for India to sustain its growth.

Part of the enforcement problem is specific to South Asia. Look at other countries - in the West or in South-East Asia ... If they put a law in place, they build the connected enforcement strategies. They allocate resources for enforcement. In South Asia, we push for law reforms. But the process of law-making is not participatory. Legislation, sometimes, comes out of a hat and is ad hoc. There are all these gross mismatches. You give a right but undermine it in the law itself. This is our main problem.

Two, we do not put social policies in place. And, three, we do not have the institutions.

Look at child labour. You have laws against it. But what mechanism have you put in place to register marriages, births and so on? Why is it not possible to do these things? Some states are doing it, but not all.

Then there is enforcement - what about police training and resources for the police. What about child protection authorities? We neither have these things nor allocate resources. All this is part of the problem.

India has made a breakthrough - it is now putting on some of its products messages such as `these are not made using child labour", or "paid standard wages to the women" and so on. But if child labour is growing along with privatisation, then that is a matter of concern. We, then, have to monitor and ask for support systems. It is thus not only important that we put laws in place, but adopt a holistic approach to law reforms.

How can rights be made effective and what are the support systems and institutions needed to make child rights effective? Is there any example that India can follow?

The experiment of the `Child Protection Authority' has worked in Sri Lanka. It probably has been easier as it is a small country. Its advantages are that it is a national, inter-departmental authority and hence has clout. The only gap is the weak participation of NGOs. This model has worked well in Singapore also. That kind of structure needs to be put in place wherever there is a child abuse law.

Next is human rights education and training. Sri Lanka is doing this in a big way. Then, community awareness is important, especially where there is a high incidence of child abuse. We have a long way to go. Our agenda is never over.