Child Rights: two laws that spell trouble for Indian children
updated 30.06.2015 | 4 Slides
India has the world's largest child population. Two out of every five people in India is a child below 18 years of age.
Two new bills now have potentially put 400 million kids' lives in jeopardy.
One deals with justice for juveniles; another with regulating child labour.
In this year's Budget Session, the Lok Sabha passed a new Bill governing juveniles: the Juvenile Justice (Care and Protection) Bill, 2014.
A provision in the new Bill allows for 16-18 year olds to be tried as adults in cases of heinous crimes. A Juvenile Justice Board (JJB) would assess whether the child was mentally capable of understanding the consequences of his/her act before deciding whether they should be tried as an adult. This provision is very contentious.
People who oppose this provision believe that those below the age of 18 are children. To try them as adults for heinous crimes without understanding the circumstances and mental condition that drove them to commit it, is only going to convert them into hardened criminals.
On the other hand, after the December 2012 gang rape incident shook the nation, the public has begun to question why a crime so heinous in nature, even if committed by a juvenile, should go less punished.
The second proposal, put forward by the Narendra Modi government, is to amend The Child Labour (Prohibition and Regulation) Act, 1986, to which the Cabinet approved amendments in May this year. These are expected to come through in the upcoming Monsoon Session.
One of the amendments states that children under the age of 14 will be allowed to work in a non-hazardous activity of a family enterprise, only outside of school hours. This amendment reflects a complex issue.
Allowing children to work at family enterprises is considered to be a welcome step by some. They believe the benefits would be two-fold: children would acquire certain livelihood skills while also contributing to the family income.
In contrast, those opposed to this amendment believe it will only make child labour invisible by bringing factories home. They also find it problematic that such a scenario would keep children tangled in the caste system. So whether it is a potter or a weaver or a rag picker, these children would be made to do the work that their families have doing for years.
Anant Kumar Asthana, an eminent Delhi-based lawyer who defends juveniles, says these new changes in both Acts reflect "a drastic shift in political thinking of our times concerning children."
These provisions seem halfhearted, addressing only a part of the reality and are motivated by myopic populism.
Treating children as adults, or adult-like, places an unfair burden on them that is physically, emotionally, mentally and economically strenuous.
New Delhi's Hazrat Nizammuddin railway station is a special place for Vikas, Ravi, Afzal, Sajid and Chandan. It is where they began life on their own terms; and met each other.
Many things bonded them. Each of them had run away from their homes in faraway Bihar, Jharkhand and UP, to live a life free of abuse and violence. Vikas was the earliest to arrive at the age of 10. The others hopped off moving trains in their early teens, all de-boarding at Hazrat Nizamuddin. They started doing odd jobs to make a living.
It wasn't long before they all became rag pickers at the platform, collecting bottles and plastic. It wasn't long before they started abusing drugs. It wasn't long before some of them thought it was a good idea to operate as a gang and engage in crimes such as theft and drug peddling. And it wasn't long before two of them were arrested and sent to an observatory home.
When they got out of the dungeon of an observatory home, it wasn't long before they fell back into their old routine of violence and crime.
"The first thing our law does is to scare such children away. We don't rehabilitate when we try to reform," says Sanjay Gupta, founder of Chetna, whose NGO fights for the rights of street children and whose passionate team of workers rehabilitated the five of them.
Today Vikas, Ravi, Afzal, Sajid and Chandan are clean of addiction and excited about working on a proper job that Chetna is clinching for them in Delhi's hospitality sector.
But, unfortunately, they are exceptions. After the bone-chilling December 2012 gang rape and the subsequent death of Jyoti Singh (where the most violent rapist was a juvenile), juvenile crimes are being viewed through the lens of sharp public outrage. Research also shows that juvenile crimes have spiked over the past few years.
Recent National Crime Records Bureau (NCRB) data suggests an increase in the number of crimes committed by 16 to 18-year-olds. They also show a sharp rise in the brutality of the offences committed.
Whether it is the Shakti mills rape case in Mumbai in August 2013, involving two juveniles, or the case of a seven-year-old girl raped by her nine, 11 and 14-year-old neighbours last July, or an episode from last month, where a 15-year-old Delhi girl murdered a two-year-old to 'avenge an insult', the evidence seems palpable.
NCRB says 28,000 children had committed crimes in 2013, of which 3,887 children allegedly committed serious crimes such as murder and rape.
The juvenile involved in the Jyoti Singh case stands to get away with spending 27 months in a reform home because he was six months short of 18 years of age at the time of the incident.
While introducing the new Bill in August 2014, the Minister for Women and Child Development, Maneka Gandhi, stated this as justification for the new provision. The incident furthered the case for stronger punitive action against some juveniles.
However, the data provided by the Bureau is based on FIRs, not convictions. Is this data then a realistic reflection of juvenile crime rate in society? Additionally, would increasing the penalty put a check on crimes committed by juveniles?
International precedence shows that trying children as adults has failed to reduce the crime rate. A juvenile who serves her sentence in a retributive environment, and is tried as an adult, has a higher chance of becoming a hardened criminal, whereas one who serves her sentence in a rehabilitative environment has a higher chance of becoming a transformed adult.
Speaking in the Lok Sabha, Shashi Tharoor stated that this provision makes Indian society regressive. He highlighted a study conducted in the US, which claims that 80% of juveniles released from adult jails repeat offences and commit more serious crimes.
Should retributive action - not rehabilitative - be considered the optimal solution?
A noted lawyer and activist, Amba Salelkar, shares her reservations about this provision. She believes that laws should not be framed as a response to the rarest of rare crimes. It sets an incorrect norm.
Barkha Singh, the chairman of the Delhi Commission for Women, however, believes that the potential for heinous crimes committed by juveniles in our society is an urgent reality.
It is evident that the latest provision has been driven by this sort of sentiment, exacerbated by the response to the Jyoti Singh crime.
The key question is, should our legislative precedents be framed to 'pacify an outraged society' rather than arise out of a considered conversation?
India is a signatory to United Nations Convention of the Rights of the Child (UNCRC), ratified in 1992, which states specifically that all children below 18 must be treated equally and cannot be tried as adults.
By passing the Juvenile Justice Bill, India will be violating the Convention. It will also join France, Germany and UK, all signatories to the UNCRC who have tried children as adults in certain cases.
The United States does the same, although it is not a signatory to the UNCRC.
The question to be asked is: despite the fact that many developed countries do it, is it prudent for India to treat some of its children as adults?
According to the UN, children who lack means to a livelihood, owing to various reasons such as parental alcoholism, abusive conditions at home, breakdown in the family etc., are at greater risk of falling into juvenile delinquency.
Sanjay Gupta seconds this. In 2013, the UNICEF estimated that globally, between 500 million and 1.5 billion children face violence each year. According to the Indian census 2011, one in 5 adolescent girls have experienced physical violence since age 15 - that is 12 million girls!
The number of at-risk children is larger if you include both sexes. This shows that our idea of juvenile justice needs to be broader.
It should look to address the root causes of juvenile delinquency with greater fervour rather than merely addressing its manifestation in crimes.
Real justice would be to protect children from being in situations that impel them to be in conflict with the law.
When an amendment to the Child Labour Act was introduced in the Rajya Sabha in December 2012, the government assured that the amendment would create "a balance between the need for education for a child and reality of the socio-economic conditions and social fabric in the country".
The amendment is meant to provide an opportunity for a child to learn a livelihood skill outside of school and stay in touch with their socio-cultural environments.
The rationale is that economically backward families would benefit from having an additional working member who pitches in to add to the family income.
There might be some merit in that argument. The amendment hopes that, in addition to absorbing skills from family work, children would develop an entrepreneurial bent and also protect the crafts industry.
Around 30 million individuals are engaged in artisanship and weaving communities alone. In these communities, if children are active workers, they would act as safeguards of the occupation.
The real picture, however, is far from rosy.
There are various issues with this amendment. Firstly, the definition of family and family enterprises remains unclear. Family enterprises vaguely include work in fields, forests and home-based work.
But there are several shades of these too. For example, even carpet weaving and bidi-rolling qualify as family-based work.
Secondly, there is a thin line between hazardous and non-hazardous work. A recent report by Save the Children - The Hidden Workforce - claims that over 8,000 children have been working in Delhi NCR factories alone, mostly engaged in 'family businesses' that involve cutting hundreds of threads each day repeatedly, putting much strain on their little bodies.
Or consider the case of the nine children who escaped this month from an innocuous sounding sari-folding unit in Gujarat. They were tortured and beaten by their employers for months before they could manage an escape.
In May 2013, it was only when 11-year-old Mariswaran died during an explosion at Meenakshi Fireworks in Chithanayakanpatti, Tamil Nadu, that the presence of massive child labour in the firecrackers industry was exposed.
Home-based institutions are the hardest to monitor. By offering enough legal room to expose children under the age of 14 to some forms of hazardous labour, this amendment would violate Article 24 of India's Fundamental Rights, which disallows the same.
Thirdly, this amendment would fortify the caste system instead of weakening it. The problem with some family occupations in India is that they are intertwined with caste system. The skills taught are not a matter of choice.
India is a founding member of the International Labour Organisation (ILO) and has been a part of the body since 1922. The ILO prohibits child labour - without any exception. Therefore, India's existing child labour law has been violating ILO's stand. The UNCRC discourages child labour as well.
In this case, too, India is not alone. Some of the other countries that allow some forms of child labour include North Korea, Sudan, Pakistan, Afghanistan, Brazil and Vietnam.
Even without legalising it, there are cases in our society where children are overburdened by the weight of the poor socio-economic conditions their families live in.
2010 was a difficult year for Lalit, a 10-year-old in Bihar. When his father fell ill, he had to make a tough choice of quitting school and leaving home in search of work.
He hopped on to a train, came to Delhi, and started working at a tea stall in the city. He would work through the day and send his meagre monthly income back home.
Eventually rescued by the workers of Chetna, Lalit started attending Sunday school. Today, as a 15-year-old, he sells cosmetics to earn a livelihood and sends almost Rs 5,000 back home.
But this has not come at the cost of his education. He dreams of joining the Border Security Force some day.
10-year-old Najmi is part of a group of rag-pickers in a corner of Delhi. For roughly 12 hours every day, she works tirelessly, earning around Rs 200. Every day, at around 1 pm, she sneaks away from work. Where does she go? To attend a informal school.
She hides this from her employer, who wants children to put every hour into work, rather than 'waste time in school'. Najmi will lose her day's wage if her employer finds out that she has been going to school during the day.
She wishes she could tell her employer that she does not want to work, and go to a proper school instead of sneaking for an hour every day. Work leaves her no time to even develop an ambition, leave alone fulfilling it.
The question is, should India legalise some forms of child labour, systemically allowing children to be treated like working adults?
Bharti Ali of HAQ Centre of Child Rights shares her reservations about the proposed amendment.
Sanjay Gupta shares his views on the child labour amendments, stating that if this amendment is necessary, then it should be complemented with proper safeguards and child labour reforms whereby children have defined minimum wages and can be active contributors to the country's GDP.
When the Right to Education Act was passed in 2009, the existing child labour law contravened it. The proposed amendment endorses the Act by allowing children under the age of 14 - the same age group of children covered under the RTE - to work only during non-school hours and on vacation. However, the checks to ensure this are not well listed.
It won't be difficult for employers to work around this. The enrollment ratio has increased under the RTE but school attendance remains poor. Therefore, a child could be enrolled in school but doesn't attend it in order to work in her family enterprise.
Moreover, if children have to spend their time working before and after school, they can hardly be expected to focus on their studies. This can clearly be seen in the cases of Lalit and Najmi.
It is essential that compliance with RTE isn't seen just as children attending school, or even worse, merely being enrolled in one.
In 2001, 1.26 crore children between the ages of 5 and 14 were working, of which 12 lakh children were employed in hazardous occupations. By 2005, the total number of children employed came down to 90.75 lakh, and by 2011, it further came down to 43.5 lakh.
The RTE aided this decline and it can continue to have this impact. This further strengthens the case against the amended Child Labour law.
Some make the case that our country faces a large skill gap and this amendment goes some distance in passing down livelihood skills and protecting dying livelihoods. But this should not happen at the cost of education. The answer, in fact, might be to reform India's education system.
Instead of creating an environment that is conducive to the growth of children in our society, the two legislations in their current form stand to do more harm than good. There are two issues that overlap in both amendments that together would prove detrimental to child protection.
The first issue is that of child trafficking, which has been addressed poorly in both bills. This is worrisome because India has among the highest number of child victims of trafficking, according to the UN's 2014 Global Report on Trafficking. The NCRB's own 2013 report proves that incidents of child trafficking have steadily risen.
Child trafficking is the worst form of slavery according to ILO's Worst Forms of Child Labour. However, the proposed Child Labour Bill includes no provision to deal with this menace. It's the Juvenile Justice Bill that penalises child trafficking but only in a measly manner.
A child trafficker will be slapped with a fine of up to Rs 1 lakh and will serve a prison term of only five years. In comparison, seemingly lesser crimes - such as intoxicating a child - is punished more severely, with seven years in prison and a fine up to Rs 1 lakh.
Around 4,000 cases of child trafficking were reported in India in 2013. However, this is only an official figure compiled on the basis of incidents reported. Include an estimate of unreported cases of forced domestic labour and sex trade and you would arrive at more than 30 times the reported figure - a whopping 1,35,000.
It is evident that across both Bills, the issue of child trafficking is mismanaged. One does not criminalise it clearly, while the other does not penalise it adequately.
The other overlap is the neglect towards the child's education.
There is empirical evidence to show that with greater investment in education, the crime rate in a society drops. Therefore, it is important for our society to keep children invested in education - not only to help the country's economy but also to tackle the juvenile crime rate.
The Child Labour Law not only allows children above 14 to work in many unregulated sectors without making education mandatory, it also takes away the focus on education for those below 14 by allowing them to work in their family enterprises. NGOs fear that a child would only make it to school to complete a bare minimum attendance and expend all her energies at work, taking away the only opportunity for her to learn anything outside.
Many fear that if education takes a back seat for children, the lack of purpose in life could make them more prone to crime. If any of these crimes are committed by those who are 16 years or older, and if these happen to be heinous in nature, they would be tried as adults as per the new Juvenile Justice Bill. This could then create a vicious cycle, whereby the provision of one Bill furthers a retributive provision of another.
In their current form, both Bills are placing children under duress. And neither of them addresses child rights in a forward-looking manner. Instead, they set end up fostering a reactionary society when they should rather be creating an aspirational one.
With inputs from Shriya Mohan.