Law of sorts

Proposed legislation on children's issues comes under fire for not doing enough to protect the rights of the majority of children in the country and not taking into account the views of groups and individuals working in the field.

in New Delhi

THE proposal of the Bharatiya Janata Party-led National Democratic Alliance (NDA) government to set up a National Commission for Children and work out a National Charter for Children seems to have run into trouble. Several groups and individuals have objected to the lack of transparency in the approach of the government and raised fundamental questions regarding the contents of the proposal. In the last Parliament session, it was learnt that the government would table a Bill to set up a National Commission for Children. Although the Bill could not be taken up in that session, it is most likely to come up in the Winter Session of Parliament as it has been cleared by the Union Cabinet. A National Charter for Children, also cleared by the Cabinet, was announced in accordance with the government's pledge in the National Agenda for Governance. It is, however, an issue of concern that the charter is an eyewash as far as the rights of children are concerned and appears not to have been drafted and designed to ameliorate substantively the status of the majority of children in the country. The National Commission for Children Bill, 2003, on the other hand, does not provide any substantive powers of intervention and correction to the proposed institution.

While the Bill has been drafted without wide-ranging consultation among groups and organisations working on the issue of child rights, one finds in the National Charter for Children the word "rights" very rarely. Importantly, the authorities have even denied the existence of the Charter. Officials in the Human Resource Development Ministry told Frontline that such a charter did not exist and the one that existed was that which was drafted in 2001, entitled the National Policy and Charter for Children.

Several individuals and groups working on the rights of children have sent a petition to Members of Parliament asking them not to pass such a Bill and Charter in haste. Those who have signed the petition include Muchkund Dubey, former Foreign Secretary, of the Council for Social Development, Rajinder Sachar, former Chief Justice of the Delhi High Court, Andal Damodaran and Razia Ismail Abbasi of the India Alliance for Child Rights, Miloon Kothari, U.N. Special Rapporteur for the Right to Adequate Housing, Vina Mazumdar and Lotika Sarkar of the Centre for Women's Development Studies, Swami Agnivesh of the Bandhua Mukti Morcha, Mridula Bajaj and Devika Singh of the Mobile Creches Organisation, and Colin Gonsalves of the Human Rights Law Network. The organisations backing the petition include the Campaign Against Child Labour, the India Alliance for Child Rights, Bachpan Bachao Andolan, Butterflies, the Forum for Creche and Child Care Services, the Centre for Women's Development Studies, the Indian Council for Child Welfare, the Human Rights Law Network, the Joint Women's Programme, the Salaam Balak Trust, Mobile Creches and the Voluntary Health Association of India. The petition has pointed out that the Bill and the Charter are not in keeping with the provisions of similar international conventions, notably the United Nations Convention on the Rights of the Child (CRC), which the government of India had acceded to more than a decade ago. The CRC was adopted and opened for signature, ratification and accession by U.N. General Assembly Resolution 44/25 of November 20, 1989. It came into force on September 2, 1990, and has been ratified by 191 countries.

The petition has listed four concrete instances where the Bill and the Charter fall short of expectations: First, they have not addressed the rights and entitlements that are deemed to be the birth rights of every Indian child; second, they have not acknowledged their entitlements as rights but only listed out the basic rights to be met; third, the child's rights to name and nationality and an adequate standard of living - enshrined in Articles 7 and 27 of the CRC - are not even included in the proposed pieces of legislation; fourth, they have not envisaged autonomous status for the proposed Commission as it is to be appointed by an order of the government and therefore will not have the independence, autonomy or powers of intervention.

The petition has also drawn attention to the fact that neither the Bill nor the Charter nor even a proposed National Policy on Children has been made public knowledge. It has urged a careful examination of the Charter and the Bill by a Joint Select Committee and an open dialogue on the issues concerned. A national policy or charter and an appropriate commission should come into being, the petition says, on the basis of comprehensive discussion and open dialogue, involving legislators, experts and non-governmental organisations (NGOs) and children themselves.

Ironically, the same groups had appreciated the government's move to make public in June 2001 the text of a draft policy/charter and a draft statute for a national commission, essentially designed to determine and direct the substance, character and scope of India's commitment to its children as well as the manner and extent of its application. Responses and comments were elicited from civil society. But now, even as these groups and individuals were waiting to obtain a copy of the revised text, which had ostensibly taken into account their suggestions, they learned that new versions of the charter and the Bill are ready and that they reflected a retreat from recommendations of the 2001 proposals.

THE issue concerns the future of 400 million children, which has a direct bearing on the future of the nation as well. But when the word "right" itself is missing from a Charter that would ostensibly prepare the framework for the new national policy or plan for children (the last National Policy for Children was drafted in 1974) it is clear that the government has little intention of adhering to the provisions of the CRC. In fact, the revised Charter does not even refer to the CRC. When the 2001 draft National Policy and Charter for Children had at least referred to India's accession to the CRC and had "rights" mentioned throughout, why does the 2003 Charter shy away from it? For instance, the "right to survival" as stated in the 2001 draft has been modified to "Children's Survival"; "right to health and right to nutrition" changed to "promoting high standards of health and nutrition"; "right to a standard of living" got diluted to "assuring basic minimum needs and security"; "right to education" changed to "free and compulsory primary education" and so on.

Similarly, words such as ensure, recognise and undertake and sentences such as "the state shall move towards a total ban on all forms of child labour" and " the state and community shall undertake all possible measures to ensure and protect the survival, life and liberty of all children" are aplenty. The word "right" is conspicuous by its absence in the entire Charter, except in a cosmetic reference to "rights" in the context of a child's right to be protected against neglect, maltreatment, injury, trafficking, sexual and physical abuse of all kinds, corporal punishment, torture, exploitation, violence and degrading treatment. Under a new provision called "Strengthening Family", the child has a right to maintain contact with his/her family even when he or she is in the custody of the state for various reasons.

The omission of the word "right" from the text of the Charter is deliberate, and the concerns of the groups fighting for the rights of the child are not misplaced. Apparently, the government has refrained from using the word "right" as that would mean placing certain obligations on itself. Why is the government reneging from the language of rights and who is to protect the child from a defaulting state? If the new draft Charter was meant to be an improvement on its predecessor - which itself had not covered all the rights listed in the CRC - it has not proved to be so, but in fact regressed further. It even makes the fulfilment of entitlements conditional, stating in the preamble that while the state, society, community and family have obligations towards children, these must be viewed in the context of the "intrinsic and attendant duties of children" and inculcating in children "a sound sense of values directed towards preserving and strengthening the family, society and the nation".

There is the added aspect of the government wanting to arrogate to itself too many powers. This is evident in the National Commission for Children Bill, 2003. While the National Commission for Children Bill, 2001, had laid down that the appointment of a chairperson and other members would be made by the President and that every appointment would be made after obtaining the recommendations of a broad-ranging committee on appointments, the revised Bill lays down that the Central government shall, by notification, make the appointments.

In fact, the 2001 Bill stated that only the President had the power to remove a chairperson or the members, a power which now has been transferred to the Central government. Moreover, the functions and the authority of the proposed commission have also been trimmed. Its mandate does not involve the implementation of the CRC or any other international or national instrument relating to human rights or child rights, to which India is a party by accession, ratification or adoption.

Says Razia Ismail Abbasi: "It was everybody's concern that both the charter and the commission should be firmly grounded in the guiding principles of our Constitution and based on the tenets of natural justice and respectful of our credo of unity in diversity. It is our national obligation that they should honour, in letter and spirit, the CRC, to which we have acceded. If one accepts a treaty, then it has to be adhered to completely and not selectively."

India was the last of the South Asian Association for Regional Cooperation (SAARC) countries to accede to the CRC. In fact, even a beleaguered Iraq at least pleaded its inability to honour the commitments of the CRC owing to the sanctions. India, on the other hand, does not even have an excuse to offer. It has gone back on its commitment to the CRC and the Constitution, which guarantees the rights of citizenship (Chapter II). The Charter does not even guarantee the right to name and nationality. If the government expects to steamroll through Parliament, both the National Commission for Children Bill, 2003, and the National Charter for Children, 2003, it will be doing anything but justice to the future citizens of this country.