Every Right for Every Child India

INDIA

EVERY RIGHT FOR EVERY CHILD

2003 CITIZENS’ ALTERNATE REVIEW AND
REPORT ON INDIA’S PROGRESS TOWARDS CRC
REALISATION

in response to
First Periodic Report : 2001 Govt of India
Submitted to the UN Committee on the Rights of the Child

Published and Submitted by

India Alliance for Child Rights
August 2003

Acknowledgements and Credits

Print production funded by
Save the Children – UK

Editorial Support:
Enakshi Ganguly Thukral, Razia Ismail Abbasi
Neelam Singh and R. Padmini

i
Process of Consultation for the Alternate Report
I The India Alliance for Child Rights (IACR) has welcomed and appreciated the opportunity it
has been given to prepare an alternate report to India’s official First Periodic Report. The
CRC review and reporting process coordinated by IACR has consciously reached out to a
wide range of NGOs, organisations, movements, networks, special interest groups,
academics and researchers, and concerned citizens, well beyond its current formal
membership. This is why it is called the Citizens’ Review and Report. The process has taken
time, but has yielded an encouraging level of interest, participation and sharing.

II More than 100 Organisations and Networks have taken active part in the Alliance’s
CRC review process for preparing this report and/or have contributed inputs
(includes IACR charter members):
Centre for Health, Training and Nutrition Awareness (CHETNA, Gujarat,Rajasthan), FORCES
(Network), Baha’i Office for The Advancement of Women (BOAW),  HAQ Centre for Child Rights,
National Foundation for India (NFI),  All India Women’s Education Fund Association (AIWEFA),
New Delhi, Women’s Coalition for Peace and Development (WeCan), Joint Women’s Programme
(JWP) All India Women’s Conference (AIWC 500 Local Chapters), Young Women Christian
Association of India (YWCA, 70 affiliated associations ), Habitat International Coalition Housing &
Land Rights Network (HIC-HLRN), Centre for Concern for Child Labour (CCFCL), SAMADHAN,
Jharkhand, Childline India Foundation (CIF), Mumbai, Child Rights Trust (CRT, Bangalore), Indian
Council for Child Welfare (ICCW), Mobile Crèches Organisation, World Vision India, Campaign
Against Child Trafficking (CACT, 400 NGO network members),  Joint Women’s Collective Trust,
Council for Social Development (CSD), New Delhi, Centre for Women’s Development Studies
(CWDS), New Delhi, Women’s Consortium for Development, Abba Yesu Pavithra Centre for
Holistic Healing, Bangalore, National Institute of Public Cooperation and Child Development
(NIPCCD), Bangalore, Auxilium Navajeevan, Bangalore, NGO Alliance for the Rights of the Girl
Child, DEEDS, Bangalore, Bangalore Children’s Hospital and Research Centre (Branch), Bangalore,
Samaj Vikas Kendra, Bangalore, Magadi Makkala Dhyani, Bangalore, South India Cell for Human
Rights Education and Monitoring (Sichrem), Bangalore, India Habitat Forum,(INHAF, Bangalore),
Association for Promoting Social Action, Bangalore, Karnataka State Council for Child Welfare,
Bangalore, Oasis India, Bangalore, The Concerned for Working Children, Bangalore, Young Men’s
Christian Association, Bangalore, Child Relief and You, (CRY, Bangalore), Malabar Coastal Institute
for Training Research and Action, Calicut, Nala Oli Office, Tamil Nadu, Swami Vivekananda Youth
Movement, Bangalore, M. V. Foundation, Secunderabad (Andhra Pradesh), Navajeeven Bala Bhavan,
Vijaywada, Don Bosco Anbu Illam Social Service Society, Chennai, Youth Vision, Chennai, The
Spastics Society of Tamilnadu, Balamandir Research Foundation, Bangalore, Sadhana Educational
Research Centre, Hyderabad (Andhra Pradesh), NALANDAMA, Chennai, Forum of Indian NGOs
for Cooperation with the UN (FINCUN), MAHITA, Hyderabad, Gandhigram Institute of Rural
Health and FWT-Gandhigram (Tamil Nadu), Iinformation for Action, Kottayam (Kerala), Bosco
Yuvadaya, Bangalore, Child Rights Trust, Bangalore, India Alliance for Child Rights, Alliance for
Protection of Child Rights (CREDA), Campaign Against Child Labour(5000 affiliate NGOs), CLAP,
Orissa, CASP - New Delhi, CASP - Mumbai, MOSAIC Charter Trust, Rural Literacy and Health
Programme, Mysore, Barli Development Institute of Rural Women (Madhya Pradesh), South Asia
Campaign Against Child Servitude, Vikramshila Education Resource Society (W.Bengal),  Youth for
Unity and Voluntary Action (YUVA, Mumbai), Child Welfare Society, Punjab, Indian Academy of
Pediatrics, Hyderabad, Save The Children UK, BAVITHA, Hyderabad, Integrated Human
Development Foundation, New Delhi, Shanti Ashram, Coimbatore, Bangalore Children’s Hospital,
Bangalore, Peripetal Research Foundation, Chennai, Swami Vivekananda Youth Movement, Mysore,
South India Cell for Human Rights Education and Monitoring, Bangalore, Navajeevan Bala Bhavan,

ii
Vijayawada, CARD CWC, Bangalore, Social Jurist, New Delhi, National Action Forum for Social
Justice, Gurgaon, School of Social Science, Jawaharlal Nehru University Centre for Social Medicine
and Community Health, New Delhi, Indian Association of Women’s Studies, New Delhi, Breast
Feeding Promotion Network of India, New Delhi, Stree Atyachar Virodhi Parishad, Nagpur,
National Spiritual Assembly of Baha’is of India, Aum Bal Suraksha Andolan Trust, Uttar Pradesh,
EPSW- Orissa, Society for Education to Reality, AAMRAE, ARC, Pune, British Council, Co-
ordination Committee for Vulnerable Children, Child Rights Cell (Department of Women and Child
Development), Committed Communities Development Trust, CRY-Child  Relief and You, Forum
Against Child Sexual Exploitation, Indian Association for Promotion of Adoption and Child
Welfare, India Centre for Human Rights and Law, Indian Sponsorship Committee, National Society
for Equal Opportunity for the Handicapped in India, Prerana, Pratham, Terre des Hommes (India).

III Organisations and networks that have been involved in the Consultative Process, or
have contributed information (16 organisations and networks)

Mythri Sarva Seva Samithi, New Delhi, Human Rights Law Network,  Butterflies, New Delhi, Ankur,
New Delhi, Action India, All India Trade Union Congress, New Delhi, Garden Reach Slum
Development, Kolkata, Voluntary Health Association of India, Jan Swasthya Abhiyan (People’s
Health Campaign), Deepalaya, Social Jurist, New Delhi, Sakshi, New Delhi, National NGO Coalition
on Children and Armed Conflict India, Gramya Resource Centre for Women (Andhra Pradesh).
National Alliance for the Fundamental Right to Education (NAFRE, 2400 NGO affiliates).

IV Individuals who have been involved in the Alliance’s CRC review process for
preparing this report and/ or have contributed inputs (includes IACR individual
charter members):

Vina Mazumdar, Andal Damodaran, Dev Chopra, Sr Gladys D’Souza, Harish Jain, Mohan Rao, C.P
Sujaya, Kusum Kapoor, Asha Chandra, Sujata Madhok,. Subhash Chandra, R. Padmini, Neelam
Singh, Enakshi Ganguly Thukral, Maharukh Adenwala, Johnson Fernandes, Joseph Gathia, Razia
Ismail Abbasi, Asha Bajpai, Ravindra Bawa and Rukmini Rao.

V In addition to the consultative process, this assessment also draws on existing NGO reports
and studies.. Three status reports on the situation of children in India published in the last
year (2002/2003) in review of the past decade have been used as resource material.
Information has also been contributed from sectoral or special issue reports.

VI The India Alliance for Child Rights has been active in creating a common ground for
advocacy to position child rights within the larger framework of development with justice.
The alliance came into being in 2001 and now has a country-wide membership of networks,
NGOs and individuals. Upholding CRC principles, the Alliance seeks interaction with other
elements of civil society, parliamentarians and Government to build conscious state
investment in child rights realisation in India.

VII Consultations and review and assessment activities carried out by IACR and by partners in
northern, western and southern India, have brought together large national organistions
and networks as well as sub-national and issue networks and small local and specialised
groups and coalitions. Of networks and alliances, apart from IACR itself, the Child Rights
Trust, the Mumbai Working Group on the CRC,  YUVA, FORCES, Campaign against Child
Trafficking (CACT), Campaign against Child Labour (CACL), Centre for Concern on Child
Labour,  and HIC-Housing and Land Rights Network have been actively involved in the
process of consultation, review and assessment.  Others that have contributed information
and comment include the National Alliance for the Fundamental Right to Education

iii
(NAFRE), the Concerned for Working Children (Karnataka), Gramya Resource Centre for
Women. The process has included interviews with subject specialists, and interactions with
children.

VIII.      The review effort has invited a range of opinions, and has not insisted on consensus.
Addenda/notes provide further information and explain some of the concerns included in
this alternate report. The Mumbai Working Group on the CRC has contributed its draft
report to this collective assessment. IACR also acknowledges with appreciation the insights
offered by the Concerned for Working Children from the working children’s own review
and reporting process, and information contributed from the January 2002 report of the
First National Workshop on Children in Armed Conflict.

iv
Table of Contents

I Process of Consultation for the Alternate Report ................................... i
1. Introduction ............................................................................................... 1
2. Comments on Concluding Observations  ................................................. 3
2.1 CRC Cttee #1: ........................................................................................................................................... 3
2.2 CRC Cttee #2: ........................................................................................................................................... 4
2.3 CRC Cttee # 3, 5: ...................................................................................................................................... 4
2.4. CRC Cttee # 4: .......................................................................................................................................... 4
2.5 CRC Cttee # 5: .......................................................................................................................................... 5
2.6 CRC Cttee # 6: .......................................................................................................................................... 6
2.7 CRC Cttee: C: #7, # 8: ............................................................................................................................. 6
2.8 CRC Cttee # 9: .......................................................................................................................................... 8
2.9 CRC Cttee: D: # 10, 11: ......................................................................................................................... 10
2.10 CRC Cttee #11: ....................................................................................................................................... 10
2.11 CRC Cttee # 12: ...................................................................................................................................... 11
2.12 CRC Cttee #13: ....................................................................................................................................... 11
2.13 CRC Cttee # 14, 15: ................................................................................................................................ 11
2.14 CRC Cttee #16, 17: ................................................................................................................................. 12
2.15 CRC Cttee #18, 19: ................................................................................................................................. 13
2.16 CRC Cttee # 20: ...................................................................................................................................... 13
2.17 CRC Cttee #21: ....................................................................................................................................... 14
2.18 CRC Cttee #22: ....................................................................................................................................... 14
2.19 CRC Cttee # 23: ...................................................................................................................................... 14
2.20 CRC Cttee #24, #25: .............................................................................................................................. 14
2.21 CRC Cttee # 26, 27: ................................................................................................................................ 15
2.22 CRC Cttee  #28, 29: ................................................................................................................................ 16
2.23 CRC Cttee #30, 31: ................................................................................................................................. 16
2.24 CRC Cttee # 32, 33: ................................................................................................................................ 16
2.25 CRC Cttee. #34,35: ................................................................................................................................. 17
2.26 CRC Cttee # 36,37: ................................................................................................................................. 18
2.27 CRC Cttee # 38,39 .................................................................................................................................. 18
2.28 CRC Cttee #  40,41: ................................................................................................................................ 18
2.29 CRC Cttee # 42,43: ................................................................................................................................. 19
2.30 CRC Cttee # 44,45: ................................................................................................................................. 19
2.31 CRC Cttee # 46, 47: ................................................................................................................................ 19
2.32 CRC Cttee # 48,49: ................................................................................................................................. 20
2.33 CRC Cttee # 50,51: ................................................................................................................................. 20
2.34 CRC Cttee # 52, 53: ................................................................................................................................ 20
2.35 CRC Cttee  # 54,55: ................................................................................................................................ 21
2.36 CRC Cttee #56,57 ................................................................................................................................... 21
2.37 CRC Cttee # 58, ...................................................................................................................................... 22
2.38 CRC Cttee #59 ........................................................................................................................................ 22
2.39 CRC Cttee # 60 : ..................................................................................................................................... 22
2.40 CRC Cttee # 61: ...................................................................................................................................... 22
2.41 CRC Cttee # 62: ...................................................................................................................................... 22
2.42  CRC Cttee # 63, 64: ................................................................................................................................ 23
2.43 CRC Cttee # 65: ...................................................................................................................................... 23
2.44 CRC Cttee #66, 67: ................................................................................................................................. 23
2.45 CRC Cttee #68: ....................................................................................................................................... 24
2.46 CRC Cttee #69: ....................................................................................................................................... 24
2.47 CRC Cttee # 70: ...................................................................................................................................... 24
2.48 CRC Cttee #71: ....................................................................................................................................... 24
2.49 CRC Cttee 72: 73 ..................................................................................................................................... 24
2.50 CRC Cttee #74: ....................................................................................................................................... 25

v
2.51 CRC Cttee #75: ....................................................................................................................................... 25
2.52 CRC Cttee. 76: ......................................................................................................................................... 25
2.53 CRC Cttee 77: .......................................................................................................................................... 25
2.54 CRC Cttee # 78: ...................................................................................................................................... 25
2.55 CRC Cttee # 79: ...................................................................................................................................... 26
2.56  CRC Cttee. # 80: .................................................................................................................................... 26
2.57 CRC Cttee # 81: ...................................................................................................................................... 26
2.58  CRC Ctee # 82: ...................................................................................................................................... 26
2.59 CRC Cttee # 83: ...................................................................................................................................... 26
3. General Measures of implementation (arts. 4,42 and 44 (Para 6)) ................... 27
3.1  Children in Constitutional Provisions ................................................................................................. 30
3.2  Legislation related to Children .............................................................................................................. 30
4. Definition of the Child (art. 1) ................................................................... 34
5. General Principles ................................................................................... 35
5.1 The Right to Life, Survival and Development ................................................................................... 35
5.2 Respect for the Views of the Child ...................................................................................................... 36
5.3 Best Interests of the Child (Ref. Personal Laws, adoption, domestic abuse) ............................... 37
5.4 Non-discrimination ................................................................................................................................. 39
6. Civil Rights and Freedoms (art 7,8,13-17 and 37 (a)) ....................................... 40
6.1  Name and Nationality ............................................................................................................................. 40
6.2  Preservation of identity .......................................................................................................................... 41
6.3  Freedom of expression ........................................................................................................................... 41
6.4  Freedom of conscience, thought and religion .................................................................................... 41
6.5  Freedom of association and peaceful assembly ................................................................................. 41
6.6  Protection of privacy .............................................................................................................................. 42
6.7 Access to appropriate information ....................................................................................................... 42
6.8  The right not to be subjected to torture or other degrading treatment and ................................. 42
              punishment .............................................................................................................................................. 42
7. Family Environment and Alternate Care (arts. 5, 18 para 1-2, 9-11,25,27
      para 4 and 39)
............................................................................................... 43
7. 1 Temporary Alternate Family Care and Other Non-Institutional Services (article 20) ................ 43
7.2 Adoption (article 21) ............................................................................................................................... 44
7.3 Violence/abuse/neglect/maltreatment (article 19) ........................................................................... 47
8. Basic Health and Welfare (arts. 6,18 para 3, 23,24,26,27 para 1-3) ........................ 49
8.1 Health and Health Services .................................................................................................................... 49
8.2 Children with Disabilities ....................................................................................................................... 51
8.3 Social Security and Childcare Services and Facilities ........................................................................ 52
8.4 Standard of Living ................................................................................................................................... 52
9. Education, Leisure and Cultural Activities (arts. 28,29,31) .......................... 53
10. Special Protection Measures (arts. 22,38,39,40, 37(b)-(d), 32-36) ...................... 56
10.1  Children in Situations of Emergency ................................................................................................... 56
10.2 Children Involved with the system of administration of juvenile justice ...................................... 59
10.3 Children in Situations of Exploitation, including Physical and Psychological Recovery and
             Social Integration ..................................................................................................................................... 61

10.4 Children belonging to a Minority or an Indigenous Group (art.30) .............................................. 64
11. Looking Ahead: Issues of Continuing and Emerging Concern ........... 65
11.1  General Measures of Implementation ................................................................................................. 65
11. 2 Definition of the Child ........................................................................................................................... 67
11.3 General Principles ................................................................................................................................... 67
11.4  Civil Rights and Freedoms ..................................................................................................................... 68
11.5  Family Environment and Alternative Care ......................................................................................... 68
11.6  Basic Health and Welfare ....................................................................................................................... 68
11.7  Education .................................................................................................................................................. 69
11.8 Special Protection Measures .................................................................................................................. 70

vi
11.10 Areas of Concern..................................................................................................................................... 72
11.11  Recommendations on Education ......................................................................................................... 73
11.12 Training/Dissemination (article 42) and Respect for the views of the child (article 12)............ 73
11.13 Name and Nationality (article 7) ........................................................................................................... 73
11.14 Temporary Alternate Family Care and Other Non-Institutional Services (article 20) ................ 73
11.15 Adoption (article 21) ............................................................................................................................... 74
11.16 Violence/abuse/neglect/maltreatment (article 19) ........................................................................... 74
11.17 Children with Disabilities (article 23) ................................................................................................... 74
11.18 Right to an Adequate Standard of Living (article 27) ....................................................................... 74
11.19 Economic Exploitation (article 32) ...................................................................................................... 75

Annexures

1. Who is a Child?
Excerpt from Govt. of India Annual Report of the Dept. of Women and
Child Development 2002-2003.

2. Elementary Failure. Article published in India Today, current affairs periodical (August
2003)

3. Policy Commitments – Statements of Intent: Excerpts form Govt. of India Annual
Report of the Department of Women and Child Development for 2002-2003.

4. Shillong Declaration on Children in Armed Conflict.

5.
Draft Alternative Report of the Mumbai NGO Working Group on the CRC

Addenda*

1.
Draft National Policy and Charter for Children, 2001, Govt. of India, Dept. of
Women and Child Development

2. The Draft National Commission for Children Bill, 2001.
Govt. of India, Dept. of
Women and Child Development

(* Separately provided. Available on
http://wcd.nic.in )

1
1. Introduction

1.1
India is home to nearly 400 million children aged up to 18 years, which the Government
claims is the world’s largest child population. The proportion of children in the 0-5 age
group is certainly the world’s largest. Overall, children constitute 42.6 per cent of India’s
total population. As a nation professing  concern about ensuring their survival, development
and well-being throughout their childhood, it is essential for us to realise that in any policy or
planning for national progress, being child-focused is not kindness but commonsense.

1.2
India’s formally declared commitment to its children can be traced back to the time when it
gave itself a Constitution that pledges equality, dignity and protection to all citizens,
including children.

1.3
India adopted a National Policy for Children in 1974, declaring children to be the nation’s
most precious asset. Dating from the Third Five-Year Plan (1961-66), children have found
some mention in national development plans, but insufficient attention or investment. In
response to the 1979 International Year of the Child, India drew up a national plan with
some long-term objectives for child survival and development, but this plan had no long-
term impact on actual commitments. An official National Plan of Action (NPA) was
adopted in 1992, in the wake of the 1990 World Summit for Children, with goals for the
decade. It was poorly designed, and even more poorly pursued.

1.4
Concurrently, India acceded in 1992 to the UN Convention on the Rights of the Child,
thereby accepting the responsibilities of implementation as an obligation. The Constitutional
commitments and the CRC form the bedrock of any planning that is undertaken for
children. These and India’s other international commitments together form the framework
for action. It is important for India to affirm such commitments not only in word but
in deed – and to demonstrate consistency between what it says and what it does. (See
Paragraphs 1.17 and 1.18 below).

1.5
In 2002, India reported on its performance on both the World Summit goals and the
implementation of the Convention. Both reports record some positive changes in the
situation of the country’s children – and significant problems and performance gaps.

1.6
Poor allocation of needed resources, poor expenditure of available allocations, and some
faults in targeting most-needed actions – all these have undermined good intentions. A more
negative influence has been the pervasive fallout from the shift in national investment away
from State supports for social development. The 1990s decade was meant for children’s
rights, but it also launched the "era of globalisation" in India and ushered in a neo-liberal
economic agenda.

1.7
The pluses and minuses are there to see. In 1992, India got moving on 27 goals for the
decade. It was to halve maternal mortality rates as well as severe and moderate malnutrition
of under-fives, and reduce infant and under-five mortality by a third. It did not reach
anywhere near these targets. Goals for drinking water, sanitation, protective health and
nutrition cover for girls and mothers were all missed. Anaemia reduction among women was
narrowly reached, but the decade data flags anaemia among children under-3, which seems
to have been an ignored alarm. Progress on immunisation stayed well below the 90% level
set, and is currently reported at 42 % fully immunised by the age of 2 years.  Official reports

2
of first-year immunisation cover vary absurdly between a range of 85 to 99 per cent and 50
to 71 per cent. Birth registration fell from 47 per cent and an apparent 1995 peak of 55 per
cent, to either 40 or 35 per cent, depending on which Govt of India report one consults.
Low birth weight, a major cause of neonatal infant mortality, continued to stagnate.

1.8
In child development, 71 % is claimed for primary and elementary school attendance, and 69
% for primary school completion by an over-age cohort, against the goal of universal (80 %)
access to basic education. Guineaworm eradication was the sole goal achieved in the 1990s’
decade.

1.9
While the international shift of approach to children's issues from a needs-based approach to
a rights approach is echoed in formal statements in India, it is still to be translated into actual
programming approaches, which continue to be largely welfarist. At the political and ethical
level, the situation calls for recognition of national obligation to the rights of all children, and
a more than labelling shift from ‘social welfare’ to ‘development,’ in efforts to secure socio-
economic justice.

1.10
The impact of structural adjustment has sharply reduced the capacities of families to fend
for themselves. The Tenth Plan is the first expression of how India proposes to address the
reality that without pro-poor planning and pro-poor guarantees, the rights of children cannot
be secured. The Plan document acknowledges this when it says that state subsidies need to
continue. Such supports must particularly address the early childhood risks of stunted
growth, poor resistance to disease, failed learning, trauma or death. If a child’s growth is
interrupted by poverty, this often becomes a lifelong handicap. India has not chosen with
the best interests of either the poor or their children in mind.

1.11
Planning and creating an environment for child development and children’s rights must also
include awareness of the destabilising effect of civil and political unrest and natural
calamities. These imperil and violate the rights of children. The State’s responsibility to
ensure protections without discrimination is clear.

1.12
It is in a climate of uncertain commitment that the new National Plan of Action for Children
is being formulated. It therefore needs to project a way out of these present constraints. The
emerging NPA with its internationally agreed deadline of 2015 must project a vision and
pledge a range of actions that stretches over three Five-Year Plan periods. It has to begin by
carrying forward and achieve the unfulfilled tasks of the Eighth and Ninth Plans. One reason
for missing goals is that the hardest-to-reach children have not been reached. Even if a
percentage gap in coverage appears small, extra effort will be needed to actually benefit the
most marginalised children and communities. There seems to be no strategy for doing this.
Any perception that India’s task in the coming 12 years is simply to “mop-up” is a fallacy.

1.13
The SPR speaks of the 1992 National Plan of Action, without analyzing either flaws or
defaults. A new national plan is now being drafted; it could have benefited from
acknowledgement of lessons learnt, since most goals have remained unmet. Any plan must
recognize the diversity of interventions that children deserve based on age, location, cultural
setting and socio-economic grouping. Conscious attention must be paid to children in
adverse and disadvantaged situations. Special provisions have to be made for addressing
children in emergency situations, whether man-made or natural. India needs a
comprehensive disaster management perspective and policy, with planning that addresses
both short-term and longer-term concerns, and distinguishes between the every-day needs of
all children and those in emergency situations.

3
1.14 The May 2002 UNGASS decisions which have triggered the NPA process underline the
need to integrate implementation of the Convention (CRC) with the pursuit of the new
2003-2015 goals. This must be reflected in any National Plan of Action for Children. It is
not even mentioned in the current GOI drafts.

1.15
India acceded to CRC in December 1992. Its first country report should have been
submitted in early 1995, but was submitted in February 1997. The first periodic report
should cover the 5-year time-frame following the due submission date of the country report
(viz., 1995-2000). In fact, the SPR covers an unspecified period, harking back to the initial
country report period, and even earlier. It is dated 2001, but was submitted at the end of
2002. The inclusion of an information update is an addition to the text, and cites 2002
official data and documentation.

1.16
The Government has referred to the Ninth Five-Year plan (the 9
th national development
plan) in the future tense, although the Ninth Plan implementation time-frame -- 2002 to
2007 – is the core period of the time the first periodic report should cover.   The Citizens’
Review and Report focuses on action India has taken after the initial country report, and
contains comments updated first half of 2003.

1.17
In reiterating national commitment now, the SPR declares the Government’s firm
intention to set up a National Commission for Children which would ensure that
CRC commitments are honoured. More recent information on this move raises many
questions on the extent to which implementation obligations have been internalised.
(See comment on Concluding Observations #18,19)

1.18
Similar dilutions, including the removal of references to CRC and to rights, have
reportedly reduced the potential worth of a revised national charter text which is
understood to have replaced the national policy draft made public in 2001. The
reported removal of the term ‘rights’ from the text is curious.

1.19 This Citizens’ Alternate Report sets out (i) comments on the State party’s responses to the
Committee’s Concluding Observations, (ii) assessment and comments on the main body of
the SPR, and (iii) emerging concerns and recommendations. Annexures to the report provide
additional information.
2. Comments on Concluding Observations
¨¨¨¨

Comments on Govt of India responses to 2000 Concluding Observations
REFERENCE: CRC/C/15/Add.115 of 23 February 2000.

2.1 CRC Cttee #1:
2.1.1 Is it an option to address only some
of the points raised and action sought in the Committee’s
observations and recommendations? The State party has not commented on the Committee’s
observations # 1 – 10, and in particular on observations # 7 – 10. The State party has made no
comment on most of the Committee’s observations, but has given answers to most of the
recommendations.

¨
(i) The citizens’ comments are identified by the headings “CRC Cttee # _” reflecting the serial numbering of the Concluding
Observations used in CRC/C/15/Add.115 of 23 Feb.2000. (ii) All paragraphs within this section of the Citizens’ Alternate Report are
serially numbered as part of the overall report text. (iii)  SPR / the Report = India First Periodic Report 2001

4
A. Introduction

2.2 CRC Cttee #2:
2.2.1 The 2001 Report (SPR) is larger and more detailed than the 1997 Country Report. However, it
repeats the previous report’s error in narrating rather than analysing, and in failing to reflect
any sense of unfulfilled responsibility for things not done. Problems are recorded as problems,
rather than as problems to be solved. While the 1997 Country Report could have been excused
to some extent for pitching action into the future, the SPR should not still be stating intention
rather than action taken to the degree that it does. Some of the information reported as
achievement dates from periods long before the reporting period. Comparisons with 1950s’
figures as illustration of achievement conceal more relevant recent evidence of stagnation,
miniscule improvement or decline, and could be queried.
2.2.2. The Report has many inconsistencies, provides no clear portrayal of the child’s situation, either
overall or in relation to area or group variations. There is no analysis of why rights are not
realised by so many children. In its uncritical listing of programmes and schemes, the SPR
omits to explain shortfalls or lack of effectiveness, and thus defaults on transparency and
accountability. The coverage of programmes is seldom given; if there is a paucity of statistical
or coverage information, the SPR does not highlight this as a problem or constraint. Legal
issues are not adequately discussed; the SPR does not explain the policy issues that call for
legislation. There is insufficient recognition of the complexity of issues affecting children.
B. Positive aspects
2.3 CRC Cttee # 3, 5:
2.3.1 Provisions and institutions do exist, but the SPR does not adequately report how much they
have actually been focused or invoked to benefit children. A landmark Supreme Court ruling
in 1993 adjudged that the child’s entitlement to free and compulsory education up to the age of
14 years is a fundamental right, implicit in the right to life. Subsequent GOI legislation, (the
93
rd Amendment Bill, resulting in the 86
th Amendment to the Constitution) in this regard has
elevated this entitlement from a directive principle of state policy to a fundamental right, but
curtailed its scope to leave out the child aged below 6 years, according it only to the 6-14 age
group. For the younger child, the right to learning opportunity is only a matter for State
“endeavour.” Vigorous advocacy by NGOs and activists for the right to early learning
opportunity could not avert this.
2.3.2 While several important national commissions do exist and operate, the National Human
Rights Commission is the only one notable for its recognition of and advocacy for children’s
rights. The National Commission for Women has a member assigned to work on the girl child,
but has done little to give this issue any visibility.
2.3.3 The Committee should further pursue this observation, seek more information on child-
impact, and consider recommending relevant action.
2.4. CRC Cttee # 4:
2.4.1 NGOs and community-based organisations are active in child development work, but their
relationship with the State is primarily that of implementers. Many receive government funding
and grants-in-aid to carry out government  schemes, and extend their reach. However, there is
little partnership in planning, assessment, or policy review and formulation.
2.4.2 It is encouraging that GOI did advertise its periodic report process in media announcements and
did include some consultations with NGOs and children in its process, and it is also welcome
that it has published NGO recommendations in the SPR. However, the State party’s own entries
in the SPR claim achievements which the NGO recommendations either question or contradict,
and the SPR does not mention either its agreement or corrective action.

5
2.5 CRC Cttee # 5:
2.5.1 This portfolio, installed in ministries and departments, has existed at national and state levels
since long before the reporting period. Re-naming it is not a sign of reinvigoration. Budgets
remain low and inadequate; use of funds allocated and performance accountability also remain
low. Curriculum content and quality, as well as teacher competence, remain serious concerns.
2.5.2 The target of universal, free and compulsory education for all children up to 14, was set in 1950,
to be achieved by 1960/61 – the only time-target in India’s Constitution. A generation has
already been lost. The new Constitution Amendment elevates governmental commitment to the
6-14 group to an obligation, and leaves it as an ‘endeavour’ for the younger age group. This is
not a move towards universalisation. Nor does the State’s inclination to let schooling move into
private sector hands demonstrate increased political will to prioritise its own investments.
2.5.3 The new national policy for children and new National Plan of Action on UNGASS goals should
make this commitment unambiguously. While the SPR announces the fundamental right to
education for the 6-14 age group, the draft national policy assures “all children” the right to free
and compulsory education, with special supports for the deprived – and does not specify an age
range for this entitlement. Which provision will prevail?
2.5.4 The SPR flags some advance information on the Sarva Shiksha Abhiyan programme (‘EFA
campaign’) to provide formal and non-formal education to children. The programme speaks of
bringing all children into the education mainstream, but does not guarantee either equal
schooling rights, or any assurance of learning opportunity to the child below 6 years.
2.5.5 The State party does not explain how this will provide all children equal learning opportunity,
especially the poorest and most disadvantaged, for whom lower-budget non-formal schemes are
listed in the programme, and are the provisions most likely to be offered.  A fundamental right
cannot be so unevenly secured.
2.5.6 The Government of India accepted EFA goals in 1990, in 1992 pledged its first National Plan of
Action for Children to include ‘universalisation of elementary education (8 years of schooling),’
and in 1993 declared its resolve to raise education funding to 6 % of GDP – which it has still not
done. Nearly half of the country’s children are still not in school. Economising measures have
resulted in teaching posts remaining vacant. Teacher re-training is not given priority; teacher
absenteeism bedevils the school system in many states. School quality standards are so poorly
met that some educationists report that only about a fifth of students in State-run schools pass
their examinations. The new EFA campaign worsens the teacher-pupil ratio. It also approves of
‘para-teachers’ without full teaching qualifications being enlisted to substitute for qualified
teachers. This kind of staffing is most likely in least-served areas, a ‘better than nothing’
approach which again short-changes the most disadvantaged children.
2.5.7 India has never explained why it has failed to invest in this key national development sector,
holding back millions of its children from realising their potential and undermining overall
national potential to enhance productivity and achievement.
2.5.8 Colleges and even universities have proliferated at a faster pace than primary schools. Skewed
investment ignores the need to build from a foundation level of learning. It would seem that
State investment should go primarily for the first building blocks of schooling. If the 14-18 age
group is also to get a share of CRC attention, high school (secondary school) education should
also get preference over college and university budgets.
2.5.9 The blurring of literacy and education as if they constitute the same objective or result, has not
served Indian children well. The National Literacy Mission of the 1980s (aimed at adults and
youth), revealed the yearning of the poor to see their children educated in regular schools.
2.5.10 The SPR information update section cites a new and related Constitutional provision [Article
51(A)(k): Fundamental duties of citizens] which makes the parent or guardian responsible for

6
‘providing opportunities for education’ to the child/ward. Given the high and persisting public
demand for children’s education, and the ongoing struggle of poor families to get their children
into school – as high initial enrolment rates show -- the onus is surely more on the State.
Reasons for the persistence of high dropout rates, including under-equipped schools, persistence
of schools without any teachers, and under-spending of funds despite low budgets, should have
been analysed and addressed.
2.5.11 Notwithstanding the 93
rd Constitutional Amendment Bill, the Committee’s observation that this
is ‘an expressed commitment’ remains valid. The Committee could usefully revisit this issue.
2.6 CRC Cttee # 6:
2.6.1 [(a) Health, (b) Labour] : Ref: (a) Health
: India has missed virtually every child health goal set for
the 1990s. Its Country Report to UNGASS 2002 lists all these unfinished tasks without
explaining the failures. Was it investment, management or will ?  A telling index is the persisting
stagnation of high levels of neonatal morbidity and mortality, and continuing high incidence of
low birth-weight. Some data indicate that maternal mortality, already very high, rose during the
1990s’ decade (from 437/100,000 to 540/100,000 -- which would make it the world’s highest
rate). The Central health budget allocation remains very low. Health care planning and provision
are not holistic. Antenatal and newborn care are obviously not addressing persisting risks;
manpower training is not focusing well enough on these risks.
2.6.2 Ref: (b)Labour: It is a matter of concern that India’s central investment in the social sector
overall is increasingly externally funded. This should be a priority sector for the State’s use of its
own resources, as an index of its commitment to children. While India has an ongoing
relationship with ILO and UNICEF on issues of child labour, the presence of children in the
roughest and least-protected segments of the work force continues to be visible and widespread.
How firmly is the State moving towards its stated aim of ‘eliminating  child labour? An allied
issue of concern is the failure to think of effective ways of interrupting, curbing and stopping
economic trafficking of children. The CRC’s own weakness in qualifying its protective provision
to address only ‘worst forms of child labour’ does not help. India should by now have shown
tangible signs of progressively eliminating child labour in fact, moving beyond de jure
commitments of national intent. The draft National Policy for Children (draft of June 2001) does
declare the intention to “move towards a total ban on all forms of child labour,” but other draft
policy provisions only call for  protections against hazardous work and provision of appropriate
working conditions where the labour is ‘non-hazardous.’ The draft National Plan of Action
states the resolve of removing children from listed hazardous occupations “from 2005 [sic].” It is
our belief that labour per se is hazardous to the enjoyment of childhood.*  [* There are other
NGO opinions, such as those of Concerned for Working Children (CWC), which call for better
standards, safeguards and protections while acknowledging ‘workers rights’ for children. This
alternate report recognises these viewpoints, while also recording that the India Alliance for
Child Rights (IACR) does not agree with them].
2.6.3 Is the term ‘elimination’ consciously used? Why is it not ‘abolition’?
2.6.4 The law to prohibit child labour in selected hazardous occupations has the flaw of listing certain
geographical locations for each industry (e.g. ‘lock-making in Aligarh’), which implies that a shift
of location could escape the law. This is an apparent carryover from earlier the text of a policy
document and has not been corrected. It should have been.
C. Factors and difficulties impending the implementation of the Convention
2.7 CRC Cttee: C: #7, # 8:
2.7.1 We note there is no GOI comment on these observations. Per capita investment in the child was
adversely affected by low budget allocations, proportionate to other sectors. There is need for a
declaration, and concrete expression, of political will. The SPR response to Concluding

7
Observation No. 21 says budget levels allocated for children are ‘sometimes less than desirable,’
and admits that ‘there is a need for advocating [sic] a greater resource allocation for children.’
Advocating to whom?
2.7.2 Ref # 7: The longer it is neglected, the larger the challenge. Inadequate effort has been made to
target enough resources to these sectors, and to ensure results. Implementation effort has not
been (and is not) up to standard. The population rate is declining, but safeguards for the poorest
infants are inadequate. Low birth-weight, newborn morbidity and mortality levels are high, and
have stagnated for years. It is not acceptable for India to defend poor performance by citing the
magnitude of its numbers. When disaggregated to local numbers and scale, the challenges are of
manageable size. Conscious high investment of both fiscal and human resources in survival and
early development and protection would have yielded significant dividends in the condition of
children. The same large population also implies a large potential human resource of trainable
people to be change agents. Even with funding constraints, better targeting would have yielded
better results.
2.7.3 Ref # 8: Poorer countries have done better. Preferential allocation of even scant resources is a
matter of ideological choice, social conscience and political will. The importance given to the
social sector has diminished during the 1990s, in large part due to conscious adoption of SAP
and liberalisation policies. This has aggravated the poverty of the already poor, reduced their
options, and cut into their ability to assure their children minimum supports and protections.
State subsidy cutbacks have reduced the few external supports the poor had so far. Migrant and
economically displaced groups do not qualify for whatever subsidies remain (if they have no
fixed addresses, which they do not, they cannot register), and so the poorest often remain
outside the radius of benefits.
2.7.4 Quantum increase of budget resources cloaks the percentage fall in child-related investment.
Moreover, how can India justify allocating only 1.6 % of every Indian investment rupee (Central
budget) to direct services for the child? Is this enough? The Central education budget was to be
at least 6 % of GDP (1993 pledge); it is still just 3.1 %. The Central health allocation stands at
less than 2 %. State (provincial) funding is supposed to cover most of these sectors; many state
governments plead lack of funds. National investment in children has to be pro-active, and
committed. India’s budgeting perspective, and its underlying investment approach is not child or
‘young’ focused. With 42.6 % of the population aged below 18, the SPR comment (pg 37,
General Measures of Implementation) that “it is an undisputed and acceptable [sic] fact that the
Government will always keep the best interests of the child at the forefront when formulating
policies and taking decisions” should have been expressed in a fairer share of resources and
attention. Failure to ensure this should have been explained, not just reported.
2.7.5 An increasing share of funds for child-related programming is from external sources. The
percentage share rose as follows, from 1995-96 to 1998-99, especially for health, with a decrease
in external dependence only in child development.
Year Health Child Devt.
Education
1995-96 40.6% 12.4% 19.6%
1998-99 79.0%   9.9% 22.5% Source: GOI Demands for Grants, annual sectoral budgets. Reported in ‘India’s
Children & the Union Budget’ HAQ Centre for Child Rights, 2001 .
2.7.6 The country could ethically prioritise the use of its own funds in favour of children. The child-
related goals set for the Tenth Plan are adopted subject to the growth rate reaching 8% --
whereas they should be unconditional, non-negotiable commitments.
2.7.7 We note that the State party has not commented on this observation.

8
2.7.8 Lack of performance accountability is a serious concern. While GOI budget allocations were
below needed levels, the percentage level of expenditure was very poor, as low as 10% to 15 %,
and funds went unspent. This, coupled with the lack of result accountability as well as
expenditure accountability, is a significant reason for inadequate/low results. Why does the
Government not hold its services, managers, and functionaries responsible for not performing,
and not using whatever resources they get?  Budget use assessments for social sector services
show between as much as 90 per cent of allocations unspent at the end of an accounting year.
Central mechanisms for tracking actual use of allocations seem to be weak, or ineffective. Misuse
also allegedly erodes the 10 % spent. The Government’s own National Planning Commission
has said all this in its run-up to the Tenth Five-Year Plan*. [*Tenth Plan Approach Paper].
2.8 CRC Cttee # 9:
2.8.1 This cannot be an excuse for government inaction or ineffectiveness. These are Constitutional
protections (1950 onwards). Policy must be practiced.
2.8.2 There are perhaps two faults in perception: one, that only social action can modify or correct
social flaws; two, that the disadvantaged communities oppose change, when many of the
traditions of discrimination are of  the favoured towards the less-favoured, and their removal
might upset vested interests, of economic and political dominance as much as socio-cultural
hierarchy. The Constitution of India has mandated affirmative State action as well as a secular
and pluralistic national culture for over 53 years. Enabling measures supported by public
education offer such communities an informed choice. The State party could have reported on
its initiatives to communicate.
a Focussed investment in the disadvantaged groups would (and could have) overcome
material service gaps.
b Exemplary punishment of discrimination would set a standard for acceptability, and
send a public message on what the State will tolerate.
c Opportunities for ‘mainstreaming’ should not undermine respect for diversity and the
right to identity.
d Child labour and economic trafficking are tied to the shaky adult employment scene,
with high adult under-employment. Employers exploit the market by choosing the
cheapest and most helpless workers. A more affirmative State role could have been
helpful.
2.8.3 If the State sets positive norms, it has to uphold and enforce them. It does not sufficiently hold
its own representatives and personnel to account for practicing discrimination, or ignoring it..
The State must visibly be on the side of the deprived and dispossessed, and work affirmatively to
remove their deprivations. For example, where local social attitudes bar Scheduled Caste/dalit
children from entering State-run schools, why does the Government not intervene?
2.8.4 Present trends are not respectful of India’s diversity. The State must hold India’s secular and
plural character secure, and must not itself violate CRC Article 2. Examples where pro-active
State action could set an egalitarian and inclusive standard, and sustain it by moving to correct
discrimination or denial include the following:
a Unequal education opportunity and services to children of low-income and otherwise
disadvantaged communities. Failure to intervene and correct situations where ‘dalit’ or
other marginalised families are socially pressured not to enrol their children.
b Moves to revise school education course content to reflect a less than plural image of
national character and culture. (This is an ongoing subject of debate among
educationists, NGOs and activists).

9
c Unequal access to credit, grants and schemes, and therefore unequal benefit to children
of the marginalised.
d Laxity and inequity in registering complaints. This violates existing laws and regulations.
e Any official action that singles out a group or community for negative attention. There
is concern over one state’s efforts to count members of one minority community,
despite court petitions opposing such action. This is against the law, and also violates
Census regulations (State of Gujarat).
f Lack of access to objective information, including knowledge of the possibility of State
attention or protection, which further constrains access or redressal.
2.8.5 Scheduled Caste/Backward Caste communities: Policy and programme for affirmative
action aimed at helping SC communities are not adequately child-focused; in the wake of CRC
accession, they should have been made more so. Provisions and schemes for school scholarships
and bursaries exist, but only address one kind of gap. For their part, child-related policy and
programmes must also pro-actively recognise and serve these disadvantaged children. SC/BC
children suffer worse levels of mortality, morbidity, and marginalisation from basic services than
the general population.
2.8.6  ST/Tribal groups: There is another side to measures for tribal development: in both design
and delivery, they do not fully respect CRC Articles 2, 29, 30. State schemes and programmes
must not pressure tribal or other minority communities to join any so-called ‘mainstream’ of the
numerically dominant or “majority culture.” Measures for their development and progress
should be respectful of their identity and personality. Large-scale reductions in tribal
communities’ control of their forest, water and other natural resources have cut into their
economic security and also eroded and damaged their livelihoods and life-styles; some have been
displaced from traditional locations. All this has adversely affected tribal children. Information
on the initiatives, if any, of the National Commission for Scheduled Castes and Tribes to
safeguard these particular CRC provisions could be sought.
2.8.7 These are situations where the State ought to take a stand in defence of the oppressed, and exert
its authority. If Society condones or practices exclusion and denial, the State must intervene.
Profit-driven changes to land and forest control and use should be reassessed, and where
necessary, reversed; such impact assessment initiatives could well have been at least started in the
SPR reporting period.
2.8.8 Social constraints notwithstanding, the Government has the authority and power to ensure that
it upholds at least declared norms of equity. State policy is affirmative to scheduled castes and
tribes, and more recently to backward castes. A policy of reservations exists and formally
operates. But the reality is that casteism and exclusion persist. Instances of  ‘dalits’ being barred
from places of  worship, or forced to accept demeaning terms of service at work and at shops
and eating places cannot fail to affect their children. Lack of genuine integration measures (or
effective ‘desegregation’ of the kind the US school system once undertook) has led several dalit
NGO movements to call for casteism to be internationally recognised as a form of racism
because of the inequities it continues to impose. The Government firmly opposes this effort,
considering the caste question non-ethnic and a problem for internal resolution. Constructive
measures to remove disparity and visibly punish exclusion would be more productive. The rising
consciousness and aspirations of these disadvantaged groups is making some of them more
assertive, and this is resulting in episodes of confrontation, and violent exclusion or ‘reprisal.’
Media reports highlight attacks on women, and occasionally children.
2.8.9 Policies and programmes for the poor – among whom the caste / socially disadvantaged
predominate -- have tended to offer second class programmes (eg non-formal education
schemes instead of pro-active targeted extension of formal schooling) as a first option to
marginalised communities. The newly floated Sarva Shiksha Abhiyan {EFA campaign} risks

10
repeating this approach. An argument that some non-formal measures cost less and thus can
stretch limited funds further needs to be examined from the standpoint of equal rights. In the
Indian situation, “children first” must spell out as “disadvantaged children first of all.”
D. Principal subject of concern and Committee recommendations
D1. General measures of implementation
2.9 CRC Cttee: D: # 10, 11:
2.9.1 The status remains unclear. Why was more such review not undertaken during the reporting
period? The failure to bring the definition of the child into conformity with the CRC, and
to establish one defining age for childhood to govern the application of all laws to
children, is the single most serious default. The variety of ages in different laws is a critical
issue for children. The SPR statement on the age until which a child is a child in Indian law
seems to misinterpret the CRC provision for definition of ‘child.’ Persisting with different ages in
different laws does not seem compatible with CRC.
2.9.2 The Committee could examine the State Party’s interpretation of Article 1, and clarify what is
meant by ‘under the law applicable to the child’ and ‘attainment of majority,’ and how this is to
be applied in conformity with the CRC provisions on non-discrimination and best interests of
the child.
2.9.3 The number of policies adopted and laws enacted during the reporting period is a small
proportion of those listed in the Report – two of six listed on Pg. xvii, four out of 12 policies
and plans, and one out of 12 laws listed on Pg 5 of the SPR. The 2000 revision of the 1986
Juvenile Justice (JJ) Act was a positive action, but NGOs feel it requires further amendment,
which could have been built into it if there had been wider consultation when it was being
drafted. (In June 2003, the Government moved a new amendment to this Act in Parliament; the
proposed changes still fall short of what this law needs in order to be an effective instrument in
defence of children. NGOs again report lack of consultation in this most recent action).
2.9.4 The National Commission for Children has still not been set up.* Meanwhile, the SPR (Page. g
xxviii, para 12) says the Government has ‘taken all measures to implement Court rulings and
orders.’ A notable example of the Government’s modifying a clear Supreme Court ruling is in
the case of legislating to make education a fundamental right for the 6-14 age group, when the
Court ruling accorded the right to all children up to the age of 14 years. (*A draft National
Commission for Children Bill was made public in June 2001. [See comments to Committee
Observations # 18,19, and Section 11 of this report] No revisions have been made public ).
2.9.5 The State party has not so far adopted a single comprehensive code that addresses the
provisions of CRC.  If the draft National Policy for Children (June 2001 text) is envisaged as
being such a code, it is inadequate as it does not address the full range of rights. Subsequent
changes to the 2001 text reportedly set out national commitments without acknowledging them
as rights. Such dilution of the rights perspective does not meet CRC implementation
requirements and evokes concern about the extent to which the State Party takes ownership of
CRC obligations.
2.10 CRC Cttee #11:
2.10.1 The State party published an official draft policy in June 2001 with the declared intention of
replacing the 1974 National Policy on Children. It has again announced this intention in April
2003. The new National Policy /Charter on Children is slated to be brought before Parliament in
2003. Its available text (June 2001) selectively echoes the CRC, and the reported 2003 revisions
are believed to fall silent on CRC altogether. Is this acceptable for a State-party obligated to
implement the entire Convention?  The updated text was not available to the public at the time
of this reporting (June 2001 official draft text provided as addendum).

11
2.10.2 The new draft National Plan of Action for Children (NPA/GOI drafts of December 2002 and
July 2003) makes no mention of legislative reviews or revisions as part of its intended action.
Nor does the available draft mention a national policy or charter as its guiding frame.
2.11 CRC Cttee # 12:
2.11.1 The Committee’s observation remains valid. In the case of the National Human Rights
Commission, the Commission itself has taken some relevant initiatives [such as declaring
nutrition to be a human right]. However, with action to set up a Commission for Children still in
abeyance, official instructions are that cases and queries on child rights are to be referred to the
National Commission for Women, instead of to the Human Rights Commission [which would
have been more logical].
2.12 CRC Cttee #13:
2.12.1 The state party has not responded to this recommendation. The Committee’s recommendation
should be reiterated. While these national commissions receive funding, only the NHRC (human
rights) has taken up child rights. The National Commission for Women has ‘girl child’ as an
assigned issue, but hardly addresses it. The national commissions for SC/ST and for  minorities
are not child-focussed.
Coordination:
2.13 CRC Cttee # 14, 15:
2.13.1 The State party has not commented on this observation. The statement on # 15 does not
address the observation action to review and modify is cast in the future tense. What was the
action between 1997 and the Report? The Ninth Five-Year Plan came and went in this period. It
has been officially assessed; what was the child-impact?
2.13.2 The Report admits that gaps in rights realisation do exist, and says ‘such an action  plan….would
be of immense value.’ Why no plan was framed during the reporting period is not mentioned
(Page 11, para 26).
2.13.3 In September 1992, the Govt of India adopted a National Plan of Action on the 1990s’ World
Summit Goals. This plan was not substantively linked to either the Eighth or Ninth Five-Year
Plans for national development (which coincided with its implementation period), which allocate
resources. It has no declared ‘national plan’ for CRC implementation. [The new Draft post-
UNGASS National Plan of Action is also not rights based, and makes no overt reference to CRC
.implementation]. It is important for the proposed new national policy, which should guide and
set the frame for the new NPA, to affirm the Constitution’s promises to children, and to be a
clear commitment to fulfilling child rights obligations.
2.13.4 Several State Governments, and Union Territory governments drew up ‘State Plans of Action’
during the time frame of the Report. The first batch of these focused on World Summit Goals,
but some of the more recent of them included references and commitments to CRC provisions.
The Report does not say how far and how well these were implemented, or mention any
tangible benefits to children of those states. Some few district plans were also formulated, in
hopes of local CRC influence; the Report does not mention them.
2.13.5 In recalling the 1992 NPA  for World Summit goals, the Report  omits to mention that  India
achieved only 2 of the 27 goals by the target year of 2000. Part of the implementation period falls
within the time-frame of the Report. The shortfalls were reported without comment in the India
Country Report to UNGASS.

12
Independent Monitoring Structures:
2.14 CRC Cttee #16, 17:
2.14.1 Lack of reliable, up-to-date, disaggregated data continues to pose a serious information, planning
and monitoring gap. Basic fact-finding capability does not seem to be the problem. A lot of data
collected and stored by the huge Census operation is not usefully accessed, and 1991 data
continues to be ‘most recent’ in 2001/ 2002. Much ground-level data is gathered and not
invoked for use. The 2000 level of maternal mortality per 100,000 births is given as 407 in one
estimate and 540 in another, indicating sampling errors. Lack of both birth and death registration
deprives the system of a valuable way of checking such information. The State party’s response
that the “status of disaggregated data is available” on various aspects of the child’s situation is
unclear: what does it mean? If it is a claim that sufficient reliable data is available, this is not true
of child labour, on which estimates range from 11 to 17 million, to more than 60 million. It is a
matter of concern that information on children who are refugees, or affected by terrorism or
insurgency, remains only partially available, leaving both their safety and their status un-mapped.
2.14.2 Data reporting above the grassroots level is also questionable. On birth registration, the Report
cites a national level of “around 54 per cent.” The India Country report for UNGASS reports 40
per cent birth registration in 2000 (down from 47 % in 1990), the official 2001/2002 annual
report on women and child development reports 35 per cent in 2000, the 2002 official data
profile of the Indian child reports 55 per cent for 1995, and says no figure is available for 1998
(the most recent year cited). Which figure is true, and for when?  What is the source and validity
of “around 54 %”? Four GOI reports of the same vintage offer different answers. On
prevalence of low birth-weight, the Department of Women and Child Development has
reported it as 22 % of all births, while the Tenth Five-Year Plan draws attention to it as one third
of all births; this is an 11 percentage point difference. Indian researchers and administrators alike
tend to use the term ‘guess-timate’ – but could India not have done better in investigating the
child’s reality?
2.14.3 The Report lists various Government data-gathering and monitoring institutions. The
Committee’s concern refers to independent monitoring structures and mechanisms. (If all the
listed government mechanisms for information gathering are really as good as reported, and
working as they should, why are accurate and up-to-date statistics not available)? Overall, the
SPR acknowledges that “data collection needs to be strengthened on all issues under the CRC
[sic] (Page xxviii).” If this is so, was it not felt necessary to do something about it, including some
additions to the content and focus of data searches carried out by all the institutions and special
bodies listed?  It does not appear to be so much a matter of shortfalls in competence, but of
what priorities are brought to bear on their  application.
2.14.4 The Government has reportedly created one serious knowledge gap for itself: At community
base, government functionaries do record sex-specific and other disaggregated data. However, it
is reported that the government does not call for this information to be conveyed to higher
rungs of the administrative ladder. So it stays on the local shelf and seems to be  effectively lost,
when it ought to be an essential base for development planning and programme design.
During the review period 1997/2002, the country’s national Integrated Child Development
Services (ICDS) programme reportedly stopped seeking gender-disaggregated data from the field
(where ICDS personnel continue to collect it). This has been described as ‘streamlining.’ We
have not been able to verify another report that the system has stopped collecting specific
disaggregated data on the different grades of malnutrition. With the devolution of some social
development roles and controls to the local self-government (panchayat) level, it should be
possible to tap and use such data locally, but a centrally designed and run programme like ICDS
may have in-built constraints to real devolution of control. This is as ironic as it is avoidable.

13
2.14.5 The Committee should revisit this query and recommendation, and could seek more information
on quality, specificity and recency of data, and consequent relevance of indicators used to plan
and monitor for child rights.
2.15 CRC Cttee #18, 19:
2.15.1 As of June 2001, a draft Bill has been on the web. The stated tasks of the proposed commission
as set out in the 2001 draft are positioned in the context of  the CRC as the standard expression
of child rights, but fall somewhat short of the CRC Committee’s  expectations, in that they do
not seem to include the task of ensuring CRC implementation in the country. Objections to this
2001 draft become academic as the Government has reportedly revised the proposed Bill and is
understood to have further truncated its mandate and potential. (See Section 11 of this report:
sub-section 11.1, paragraphs 11.1.1 and 11.1.2). These reported changes depart significantly from
what the SPR states as the Government’s intention. The question arises as to whether this body
could be the ‘statutory, independent’ national commission envisaged by the Committee as
capable of defending children’s interests. The Committee could well revisit this
recommendation, to clarify how the State Party has proceeded on executing its intention.

2.15.2 The Government’s Cabinet Committee has approved the Bill for presentation to Parliament [It
was expected to be presented to the July/August 2003 monsoon session of Parliament for
adoption, and now intends to move it in the Winter Session in November 2003). The official text
on the GOI web-site remains the 2001 draft text.
2.15.3
NGOs have been pleading for a role and a say in planning this important commission.
Many NGOs and networks submitted detailed recommendations in July/August 2001, which
were subsequently endorsed by other NGOs, and alliances including IACR. It is not known
whether these have influenced the finalisation of the substance of the Bill.
2.15.4
The Committee’s recommendation [#19] spells out Indian citizens’ concern that the
commission should be statutory and independent, authorised and capable of acting as an
autonomous guardian of the CRC, and that it should be empowered to carry out the stated key
functions. There is continuing concern that its authority may not extend to review or correction
of any charges levied against actions of security forces.
2.15.5
Existing national commissions do not have an adequate apex authority or control over state level
commissions (which are appointed by state governments). Therefore the power of the proposed
national children’s commission to be a directive influence – or arbiter – of state or local CRC
implementation or defence of child rights could have the same limitations. There are arguments
for and against the autonomy of state commissions.
2.15.6 The Committee could consider revisiting this recommendation, whether or not the
proposed Commission gets established before the SPR is reviewed. The positive initiatives of
some state governments to enact progressive laws or appoint empowered bodies pitched to
higher standards than existing central legislation or action makes a case for provincial autonomy,
but such states are presently an exception.
Allocation of budgetary resources (art. 4)

2.16 CRC Cttee # 20:
2.16.1 The State party has not commented on this observation; it should have corrected the
Committee’s assumption. The education budget has not been increased to 6 per cent. Nor
is it 4 per cent. It stands at around 3.1 per cent, for all levels of education. Of this, less
than 1.5 per cent is allocated for primary education. Allocations have not increased; overall,
they have fallen. Much of funding actually goes to pay for salaries. The 6 % of GDP
commitment is now 10 years old.

14
2.16.2 There is need to clarify what is meant by ‘maximum extent of available resources.’ Some
basic minimum standards are needed, so that some obligation applies to what must be made
available for children. The national government does not as yet operate from a declared ‘rights
perspective.’
2.17 CRC Cttee #21:
2.17.1 Analysis of child impact, and conscious adoption of pro-child measures are inadequate. The
Report merely acknowledges the gap between “utmost priority given to children in policy
making” and budget allocations that are “sometimes less than desirable.” It goes on to admit the
need to advocate increased funding and improved analysis of the child impact of budgets and
new policies – but does not say who should advocate this, or with whom. Has India moved on
either of these during the reporting period? Some ‘child budgeting’ evaluation studies by NGOs
and academics have been recognised ; their findings are yet to be adopted. [The SPR is a report
by the Government of India, not by a nodal department or ministry, which might well be
pleading its case with some higher stratum; it should state the Government of India’s position].
Cooperation with NGOs
2.18 CRC Cttee #22:
2.18.1 The Committee’s observation remains valid, and could be reiterated. On preparation of
the SPR, some NGOs and some children were involved in a series of state and inter-state
consultations in the run-up to preparing the SPR. However, NGOs played no partnering or
consultative role in actual formulation or finalising of the Report. The consultations were an
advance on the process followed for the 1997 country report, and it is good that the SPR quotes
several NGO recommendations, but equally, several other NGO recommendations submitted to
the Government do not feature in the Report. (Had there been meaningful dialogue and
consultation, an alternate report might not have been necessary). On CRC implementation, the
Government, both central and state levels, generally confine this cooperation to NGO
implementation of government schemes; the recommended partnering role is not much in
evidence. In some instances, NGOs for their part, have made some headway by taking the
initiative to interact, but many such initiatives have also failed to build policy dialogue.
2.19 CRC Cttee # 23:
2.19.1 The Committee’s recommendation could be renewed. If there is any systematic approach,
so far it has been to not involve NGOs and civil society as partners in policy or planning, but to
offer implementation opportunities along prescribed lines. Government at times invites NGOs
to demonstrate ‘best practices.’ NGOs did indeed serve on some working groups and
committees preparing proposals and recommending strategies for the Tenth Five-Year Plan (as
some also did for the Ninth Plan). These were not officially communicated or handled as
CRC implementation opportunities.  Few of the NGO recommendations have actually found
place in the Tenth Plan. On the flip side, many NGOs have expressed concern that CRC action
responsibilities which should in fact be undertaken by the State itself tend to be farmed out to
NGOs or – of late – suggested to the private sector. The State party’s response is interesting in
that it holds out a prospect of the National Coordinating Mechanism (NCM) monitoring civil
society action and internal dialogue. It is uncertain how this would be perceived by NGOs and
citizens’ bodies, who also see themselves as constructive watch-dogs. The NCM has only met
once (September 2000) since its constitution in January 2000.
Training/dissemination of the Convention (Art.42)
2.20 CRC Cttee #24, #25:
2.20.1 The State party has not so far moved to make child rights or the CRC a public issue. The
Government has not taken much initiative to make the CRC widely known, or well understood.
Information on national CRC implementation, declared and described as CRC action, is even

15
less publicised. The 1997 Country Report is not visible as a public information document; the
Concluding Observations are more readily available from the UN or the internet. Information
may be circulating in official infrastructures, but ‘widely known’ includes the public. The
Committee’s observation and recommendation of January 2000 remain valid, and could
be reiterated.
2.20.2 The State party reports a number of publicity measures it has taken, but still projects much of
the task as future action or things which should or could be usefully done. Several easily available
and low-cost options have not been used. The Information Ministry runs a publication
operation called “Books for the Millions,” making each published book available in all Indian
languages at very low cost (about 15 US cents). The National Book Trust, which publishes for
children as well, offered and offers another ready option. The CRC in simplified language could
have circulated widely through these two channels. State-run radio and TV operate in many
languages (21 for radio), and could also have informed millions about  CRC. Dissemination need
not have been confined to State-owned information media, although these all offer active
channels of outreach. The Government  itself could have thought of and carried out the nine
public information ideas and 11 capacity building suggestions obtained  from NGOs at
the end of the reporting period, which the SPR lists.
2.20.3 On training, NGOs recommendations cited in the SPR call for greater attention to training and
sensitization. Systematic dissemination planning would logically link CRC provisions to
programmes on the ground. An action version of the CRC, with relevant policy information,
listing essential actions from the CRC Implementation Handbook and promoting a rights
approach, could have become a guide cum handbook for every government administrator and
service manager. A planning and programming guide for local self-government bodies
encouraging local CRC, implementation could have become available through the ‘panchayat and
nagar palika (rural/urban) systems.
2.20.4
The Information Ministry runs outreach communication programmes through drama troupes
and field publicity workers. The CRC should have become a priority item in their repertoires and
public education activities. State governments have similar public education units at provincial
level. CRC dissemination has not so far become a priority for any of these.
D.2 Definition of the Child

2.21 CRC Cttee # 26, 27:
2.21.1 This observation and recommendation  of the Committee remain valid, and should be
reiterated to the State party. We believe the SPR misinterprets the application of this
provision. It  states  the view that the term ‘child’ can be variously defined in different laws, so
that  there is no need for a single core national definition of who is legally a child. CRC Article 1
points to age of majority under the law (not ‘laws,’) of a country. (See earlier comments: paras
39,40 of this report).
2.21.2 Guided by its own interpretation, the State party has not moved to change its laws in this
respect. This interpretation needs to be questioned, and if necessary corrected. Review and
reform of laws will otherwise perpetuate this flaw.  The CRC phrase needs to be unambiguously
defined, in the best interests of children who would otherwise become vulnerable to varied
interpretation. If the Juvenile Justice Act 2000 sets 18 as its age ceiling, the State party should be
able to make this a minimum standard which overrides other laws as they apply to the child – if
not in one step, then progressively. If not, the JJ Act’s protections cannot be uniformly applied
within the same State and jurisdiction.

16
D.3. General principles
The right to non-discrimination (Art 2)
2.22 CRC Cttee  #28, 29:
2.22.1 The Committee’s concern is well-founded. Some major development programmes cite equity and
equality of opportunity as their guiding purpose, but in actual implementation disparities persist.
One default of government execution of its own schemes has been the tendency to leave the least-
served – target groups and locations alike -- to the last. Geographically less accessible areas –
officially termed ‘remote’ – are not reached. The ‘socially remote’ among communities stay at the
end of the queue, and many are so habituated to neglect that they are unlikely to complain.
Another fault lies in the very design of programmes that set out to provide better or at least
standard services to the already better-endowed, and lower-budget, non-formal or second quality
services, delivered by less-trained para-professionals, to the chronically deprived. This attitude that
something is better than nothing does not serve the best interests of the most disadvantaged and
poorest children. Programming from a rights perspective could correct this.    .
2.22.2 Despite laws, enforcement has not ensured the eradication of these practices relating to caste,
ethnicity or community, and they persist. Daily life examples abound, and are not corrected.
Caste intolerance is often violent. The Report seems to imply that plans and actions are evolving
or imminent, not effectively under way.  This is by no means an easy problem for India to solve,
but the Report does not convey any sense of urgency. While recognising that it is these
communities and not just their children who are oppressed and marginalised, the Report does
not  mention any  pro-active measures taken for the children. Studies show that most of those
who work insecurely in India’s  unorganised sector are from ‘dalit’ (SC), backward caste or tribal
communities, whose poverty, limited skills and low income stability make it hard for them to
care for their children.
2.22.3 Non-discrimination is not about grants, but about the State’s pro-active protection of the equal
worth of every child. Re-naming old ministries or setting up new ones does not in itself
strengthen these protections. The State party’s statement that “special efforts …need to be taken
up” does not indicate what action has been taken.
2.22.4 Apart from scheduled castes and tribes, the lowest rungs of other backward castes also endure
denials and deprivations contrary to both law and natural justice. Minority communities, notably
Muslims and in a growing number of locations Christians, as well as neo-Buddhists (primarily
converts from dalit Hindus), are targets of at least social exclusion, and often of violence. Their
children cannot and do not remain unaffected. Communal violence occurs, and recurs. Violence
against children has been notable in recent outbreaks; NGO assessments point to increasing
evidence of children being deliberately targeted.
2.23 CRC Cttee #30, 31:
2.23.1 The Report admits ‘tardiness ’ in liberating scavengers from demeaning tasks; it does not refer to
measures to overcome basic social exclusion, and it does not mention disadvantaged groups
confined in a variety of low-prestige occupations and artisanal traditions.
2.23.2 Ref #31: The Government does not agree that the caste problem is an issue of racism. Dalit
movements argue that its manifestations are akin to apartheid.
2.24 CRC Cttee # 32, 33:
2.24.1 The Government’s response is superficial, and incomplete. There is more to the struggle for
gender justice in childhood than cartoon films can achieve. The most serious challenge India
faces today is the steady decline in the female/male ratio in the 0-6 age group. The 2001 National
Census has revealed a juvenile sex ratio of 927/1000 for this age group, an alarming widening of
the gender gap in infant survival (including in the womb), to the worst level yet recorded.  The

17
NGO expert committee proposing priorities on social empowerment for the Tenth Five-Year
Plan period singled out this trend as the single most urgent national development challenge, and
urged top priority for action to address it. There is concern that the national population policy,
and family planning programme’s emphasis on reducing numbers by preventing births, does not
recognise whose births are most likely to be prevented. The law against pre-natal sex
determination tests (PNDT Act) has not arrested the trend to add female foeticide to the already
entrenched neglect of female infants. It is of concern that the draft National Plan of Action for
Children does not provide for any pro-active affirmative action to arrest this trend. The SPR sets
out various statistics in a 10-point list to illustrate gender imbalance – but does not include the 0-
6 juvenile sex ratio in that list (Pages 58-59). Can this be excused as an oversight in a report
about children?
2.24.2
The Committee has drawn attention to the role of cultural and religious leadership in re-
examining underlying custom and tradition. Available data suggests that infanticide, foeticide and
early neglect arising from ‘son preference’ may be most prevalent among the majority Hindu and
minority Sikh community, and foeticide is being successfully marketed in the northern half of the
country. But it is no longer unknown elsewhere or in other communities. (a) Personal laws for
minority communities are among measures originally and essentially aimed at protecting their
separate identities and cultures. However, India needs to find a way to bring about objective re-
examination of such laws in the context of the best interests of the child, and thereby of the
CRC provision for non-discrimination. The SPR mentions the possibilities held out by enabling
provisions and laws. This needs to be studied, and initiatives need to be built from within the
communities themselves. The Report does not say whether any steps have been taken to do this.
There are civil society demands for uniform and non-discriminatory enabling legislation. (b)
Harmful traditional practices persist in many communities, the commonest including denial of
care, early imposition of domestic duties, early marriage.
2.24.3
India joined other SAARC countries (South Asian Association for Regional Cooperation) to
observe a year (1990) and then a decade for the girl child, and did indeed draw up a national
plan. But the decade ended unsung and unreported in India in 2000.  The 1991 and 2001 Census
data on the 0-6 sex ratio provide their own grim audit of what happened to the girl child’s right
to life during the 10-year period.
Respect for the views of the child (art.12)

2.25 CRC Cttee. #34,35:

2.25.1 The Committee’s observation and recommendation remain valid. Children use every opportunity
offered to play a role in community life and processes. Pilot experiments have demonstrated
their capacity to contribute. Many of these are NGO initiatives. The State party itself has not
moved to institutionalise child participation in decision-making processes, or to build in
safeguards to ensure the child’s right to information as well as to expression. The new Juvenile
Justice Act (2000) has been criticised for not allowing the child to be heard in court or in juvenile
board proceedings [See footnote to Pt 41 above]. School teaching by poorly trained teachers
relies on rote learning and discourages children from asking questions. This is an area for greater
State effort, which this report does not mention. Within-family and household customs based on
elders knowing best may be slower to change and harder to modify. However, the attitude that
parents or guardians ‘own’ and therefore control the child or ward must come within the
purview of State attention.

D.4 Civil rights and freedoms, (Name and nationality (art. 7))

18
2.26 CRC Cttee # 36,37:
2.26.1 The Committee’s observation and recommendation remain valid, and could be
reiterated. The State party response (and main report) does not say what practical effort has
been made since 1996/97 to improve civil registration, and birth registration in particular, and
with what result. The SPR mentions that there are 200,000 registration units and 100,000 local
registrars in the country, but does not report what they do, or indicate why so many of them are
not able to record what might at most be one or two births a day in any one area. It does not
provide an accurate present registration figure (See earlier points). It does not report that birth
registration fell from 47 to 40 (or perhaps even 35) per cent over the 1990 –2000 decade; nor
does it say why.
2.26.2 There is concern that the State view of who qualifies for ‘name and nationality’ may not be
sufficiently clear in recognising the civil right to registration of babies born to illegal / transient /
migrant communities, who are unlikely to be registered. Such groups with little or no legal status
and usually no fixed or recognized location or address, cannot lay claim to other civic supports
such a food ration card. According to India’s Constitutional provisions (cited in the SPR) anyone
born in India or resident in India for 5 or more years, or born to parents of whom at least one is
Indian, has the right of nationality. What needs to be clarified is whether this provision is in fact
being honoured in respect of migrants (including illegal migrants) into the country. Does the
illegal status of the parent or parents deny the right of name and nationality in India to the child
who fulfils the conditions of birth or residence? [See also our comment on CRC Cttee
observations # 61,62 (D.8)]. An emerging concern is the reported deletion of reference to
this right in the revised draft national policy for children.
Right not to be subjected to torture or other cruel, inhuman or degrading treatment or
punishment (Art 37 (a).
2.27 CRC Cttee # 38,39
2.27.1 The State party has given a de jure response. Its half-page chapter in the main body of the SPR
(Page. 94) is inadequate in both substance and size. In terms of the JJ Act, it is not fully
operational as all states do not have the required infrastructure in place. Maltreatment can take
place within the household, and measures to detect and address domestic violence are
inadequate. The State party’s statement that ‘there are also no widespread incidences [sic] of
victimisation of children in the country’ deserves to be questioned. India has an estimated
400,000 child prostitutes, an unknown larger number of child workers, with an unknown number
of bonded labourers among them. Can it be claimed that they are not victimised, and that the
treatment they receive is not degrading or cruel? The SPR refers to the NGO campaigns in
support of CRC Article 37(a): why are the NGOs engaged in these campaigns if there is no
widespread incidence of victimisation? The SPR comment that personnel of child care
institutions are being sensitised on children’s rights does not include any reference to whether
there are provisions, or whether steps have been taken to raise vigilance and accountability
standards or to punish any personnel found guilty of mistreating the children they are paid to
protect. Other custodial institutions are not mentioned. The response does not mention whether
the recommended changes have been made to the Criminal Procedure Code. The Committee’s
observation and concern remain valid.
2.28 CRC Cttee #  40,41:
2.28.1 The State party has not responded to these two recommendations. It should have provided
relevant information. Some related information contained in pages 361,362 of the Report is not
cited. De jure safeguards may not always be available to the child in fact. The Committee’s
concern and recommendations remain valid.

19
D.5 Family environment and alternative care
Adoption (art 21)

2.29 CRC Cttee # 42,43:
2.29.1 The State party’s response does not fully answer the recommendation. Variation in adoption
provisions and laws stems from personal laws for minorities, which are in place in recognition of
minorities’ rights to their traditions. It is difficult to review or revise these without the leadership
of the minority communities. A serious emerging concern in relation to adoption placement is
the apparent perception of some in Government that all Indian children are ‘born Hindu,’ and
that the placement of a child with non-Hindu adoptive parents would result in ‘conversion,’ as if
anyone is born with a religion.
Violence/abuse/neglect/maltreatment (art. 19)
2.30 CRC Cttee # 44,45:
2.30.1 The observation is about violence, abuse, maltreatment and neglect, not just corporal
punishment. The State party’s response is only on corporal punishment, and it simply makes an
observation about families guarding their privacy. Domestic violence continues to be an under-
reported/un-reported and ‘hidden’ rights violation of significant proportions. Police data indicate
that most of the offenders (70 to 80 %), including sex offenders, are family members or
members of the household. The SPR itself reports this (Page 128), and cites legislation (Page
129), and says that child rape accounts for 27 % of all rapes, citing reported cases, but does not
specify how many cases were ‘home or household based.’ It does not report how effective law
enforcement or other community-based controls or rehabilitation measures have been. It does
not elaborate on new measures apart from the new JJ Act. The reported move to consider
bringing forward a ban on corporal punishment in institutions under the Department of
Education is welcome. The SPR does not say when this move began and how far it has
progressed. The Committee’s recommendation remains substantially  unanswered.
D.6. Basic health and welfare
Children with Disability (art. 23)
2.31 CRC Cttee # 46, 47:0
2.31.1 The State party says the Government is ‘taking several measures’ to implement the 1995 Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. The
Report is being made 5 years after the Act was adopted. What did not happen? How can 5%
coverage be justified? There is also no acknowledgement of the wastage and damage caused by
failure to prevent impairment and disability – estimates indicate that 50% of disability in India is
from preventable causes. Only 2 per cent of children with disabilities are reportedly in school. Of
the planned network of district rehabilitation centres, only 11 have been set up, one apiece in 11
states. Clearly, this is not regarded as a priority. There is no analysis or acknowledgement of how
these inadequacies would allow impairments to become disabling, and prevent consequently
disabled children from avoiding the handicapping effects of neglect. There is no mention of
whether, and how well, early detection of impairment or special needs is really occurring in MCH
or child development services. The education measures contained in the ‘catch-all’ Sarva Shiksha
Abhiyan – a programme launched by Government as its professed EFA campaign –- are
supposed to ‘include’ children with disabilities; how well does the campaign do so, and how
meaningful is the inclusion to date? The Committee’s observation and concern, and its
recommendation, remain valid.

20

Right to health and health services (art. 24)
2.32 CRC Cttee # 48,49:
2.32.1 While an IMR reduction is reported for 1990-2000,  neonatal mortality and maternal mortality
have continued to stagnate at high levels. Neonatal deaths account for about 62% of all infant
deaths. One-third of Indian babies are born with low birth weight (a fact the Tenth Five-Year
plan singles out for mention as a serious concern), over 40 % of children below 5 are stunted.
Urban slum conditions are as risky for children as those of unserved rural areas. The country
urgently needs targeted interventions to address neonatal morbidity, prevent newborn sickness
and death, and improve health and nutrition of women. Maternal mortality levels remain among
the worst two or three in the world.
2.32.2 State effort must be judged by its results: they are not good enough. What India needs is a
conscious ‘life-saving’ and ‘life-protecting’ strategy and measures for child survival. Vigilance to
ensure that an at-risk pregnancy does not result in an at-risk birth is critical, and training of local
workers and service-providers specifically on care of newborns and mothers is crucial.
Pediatricians point to the urgent need to address and prevent neonatal morbidity with pro-active
protective care. Education and support for basic household care of the newborn, infant and
under-5 child are needed. Services are not well-enough targeted. India has missed its 2000 goals
for MMR reduction, and has not reported whether it has reached the goal it accepted to halve
deaths due to ARI (acute respiratory infections), a leading cause of early childhood death (India
Country Report to UNGASS).
2.32.3 On IMCI, the State party says it does not have/has not adopted the Integrated Management of
Child Illness strategy, when in fact it has, and with the wisely added component of neonate care,
as its Integrated Management of Child and Neonate Illness strategy (IMCNI). The SPR cites
RCH as the GOI’s ‘alternative’ strategy, and provides information on its provisions.
2.33 CRC Cttee # 50,51:
2.33.1 The SPR does not comment on this concern. In adolescent health, anaemia is a chronic and
widespread problem; TB incidence in the age-group deserves investigation, teen pregnancies and
child-bearing continue to require attention as both social and health issues.It would be valid for
the Committee to reiterate its concern..
2.33.2. The SPR does not respond on the extent to which its development measures are pro-actively
pro-poor. In fact, trends to cut back on State subsidies to services are eroding the effective
outreach and accessibility of such services to the poorest. The HIV/AIDS challenge continues to
grow in India.
Right to an adequate standard of living: (art. 27)
2.34 CRC Cttee # 52, 53:
2.34.1 The Government has not commented on this concern. The inadequacy of shelter, dwelling
conditions, access to local services and supports and the basic security of location remain serious
problems for large numbers of children, especially of communities and groups lacking civic
status.
2.34.2 The Government has not responded to this recommendation. Pages 226-235 of the main SPR
describe several schemes, but mostly in the future tense. A shelter shortfall of 24.5 million
houses is reported. Describing the magnitude of poverty as ‘staggering,’ the SPR says the 1998
National Housing and Habitat Policy aims at generating a strong public-private partnership to
‘create surpluses in housing stock and facilitate the construction of 2 million housing units each
year, ’and also to create an enabling environment for this. It does not say whether, or how many,

21
units have actually been built since 1998. It offers no insight into the child impact of the policy.
Shelter needs persist in both rural and urban India. The poor quality and poor living space of
most housing is mentioned. No information is given on evictions, forced or otherwise. It makes
the curious comment (Page 235) that special attention must be paid to the shelter needs of
vulnerable children (citing Habitat II), but gives no evidence of having done so. The Committee
could well revisit this recommendation.
2.35 CRC Cttee  # 54,55:
2.35.1
The SPR comment on this observation relates it to its integrated programme for street children,
but provides no information on the scope, spread, or actual operation of the programme, or any
assessment of its effectiveness. The reference (Page. 364) is to children without homes or family
ties, whereas children living or working on the streets in India also include those whose families
are also homeless or pavement people.
2.35.2
The Government’s response does not indicate how efforts to improve access to protections and
services are working; it merely lists and describes laws and schemes. There is no mention of the
standards and efficacy of  schemes, services and homes meant to provide protective alternatives
to such children.
D.7. Education, leisure and cultural activities

Rights and aims of education (arts. 28 and 29)
2.36 CRC Cttee #56,57
2.36.1 The Committee’s overall observation remains valid. The new scheme for school level education
for all (Sarva Shiksha Abhiyan) provides for non-formal services of unknown quality for the
least-served communities. It is a matter of  serious concern that India has not given due attention
to training and retraining formal teachers, and that its new schemes increasingly offer non-formal
learning courses and entrust teaching to unqualified para-professionals. The least-served, most
chronically deprived communities should receive the first call on formal quality schooling for
their children but are least likely to. The scheme is slated to phase out in 2010: does it have an
exit plan? How well will it really prepare disadvantaged children to join the mainstream of formal
schooling? Alternate schemes of the Sarva Shiksha Abhiyan meant for presently un-served
groups among children do not appear capable of lifting children’s capabilities to compete in the
formal school system.
2.36.2 The State party disregarded the recommendation in an important respect. The Constitutional
Amendment Bill has been adopted (93
rd, not 83
rd in the event), resulting in the 86
th Amendment
to the Constitution. It does not safeguard or uphold the right to education for all children upto
the age of 14, but limits it to the 6-14 age group. This is not what the Supreme Court had
decreed. Children below six are left without a fundamental right to free, quality pre-school and
early learning opportunity, to be served to the extent the State decides under the Directive
Principles of the Constitution. This constitutional change raises the question of whether CRC
Article 2 (non-discrimination) has been respected. Some NGO reviews also point out that the
above-14 children have in any case been left out of the Constitution’s original promise. The
question of what happens to a child who completes 14 years without completing elementary
schooling also arises; would CRC Article 28 no longer apply?
2.36.3 The draft National Policy for Children(June 2001 draft text)accords the right to education to ‘all
children,’ and does not specify minimum or maximum ages for inclusion/exclusion in the right.
2.36.4 Part of the Government’s response to the recommendation refers to ‘value orientation of
education’ and mentions the creation of a Division on Education in Human Values in the
Human Resource Development Ministry, which has “taken a large number of steps that have
far-reaching consequences and effects on value education at all levels in the country.” There is
concern that some of these steps, to revise the content of textbooks in respect of their portrayal

22
of Indian history, culture, traditions and achievements, may not present a fair picture of the
country’s multi-cultural, secular and plural character. New school texts in history have generated
some public controversy with regard to their accuracy and objectivity. Comments made under
the sub-section ‘Concerns of Education’ Pages 308-309) deserve examination in this context.
2.37 CRC Cttee # 58,
2.37.1 The Government has not responded to this recommendation. There is concern that the
investment of both funds and quality improvements in education continues to be too low, with
insufficient conviction that this is a crucial input not only to child rights but to national
development.
2.38 CRC Cttee #59
2.38.1 In its response to Point 57, the Government mentions that the National Council for Educational
Research and Training (NCERT) ‘has started the process to include the CRC in school curricula.’
It does not say how far it has progressed, or why it has taken so long to consider it, except for a
comment on Page 20. The chapter reference to value education (Pages 308-315) does not
mention CRC. It does mention some preparatory activity on human rights education, stemming
from a 1980 national recommendation, and an initiative by the National Human Rights
Commission relating to the 1995-2004 UN Decade for Human Rights Education. Official
interest in CRC dissemination overall is poor.
2.39 CRC Cttee # 60 :
2.39.1 The Government makes no response to this recommendation. The overall central budget
allocation for elementary education has risen, but the central allocation for all child-related
services, including education has in fact fallen from the 1997-98 level (Pages. 35). The pledge of
raising education investment to 6 per cent of national income still awaits realisation. India is not
pledging ‘maximum available resources’ to measures that would help realize CRC obligations.
(See also our comment on CRC Committee’s observation # 20).

D.8 Special measures of protection
Unaccompanied, asylum-seeking and refugee children (art. 22)
2.40 CRC Cttee # 61:
2.40.1 The observation is well-taken. The SPR cites Constitutional provisions on rights to Indian
nationality (Page 84). However, revisions to the draft national policy for children reportedly
remove the right to nationality from the proposed list of entitlements. While the Constitutional
provision stands, this omission has implications for any child whose parents have uncertain legal
status, or who is herself/himself of uncertain status.
2.41 CRC Cttee # 62:
2.41.1 The SPR section on refugee children (8A-1, pp 331-337) indicate that India has not moved on
this recommendation. The impact on children of being clubbed with refugees in general should
be further examined.
2.41.2
There is concern about the status of what India calls ‘unacknowledged’ refugees (Page 333, para
18). These include economically displaced persons. Laws relating to the right to nationality also
apply to such refugees and migrants., and particularly to their children who have been born in
India, or have lived here five or more years. We note the State Party’s remark that large
numbers of Bangladeshi citizens have entered, and ‘swelled the population’ of  northeast states.
Many have migrated to other parts of the country. Whether or not they have swelled the
population, what access do they and their children have to supports and services? Not all who
enter India (from Nepal, Bangladesh, mainly) are actually political refugees, many are trying to

23
escape poverty. Those in search of better livelihoods and income, seek footholds in the
unorganised sector. In some areas, the authorities have made efforts to detect them, and some
reports suggest that Muslims among them may be more likely to be targeted for deportation.

Children and armed conflict, and their recovery (arts. 38 and 39)
2.42   CRC Cttee # 63, 64:
2.42.1
This is an inadequate response. The Government’s response is couched in the context of a
‘national disaster relief plan;’ the chapter on armed conflict (Pages 339-340) makes no mention
of such a plan While it is commendable that the SPR contains a chapter on this subject, the text
is just one and a half pages, and lacks both detail and depth. It lists some measures following the
period of militancy in Punjab state, which ended before the SPR reporting period, and does not
speak of measures in areas currently affected by conflict situations. In fact, the inadequacy of
State and  police attention to caste and sectarian hostilities and conflicts, tribal clashes and other
civil confrontations have led NGOs to ask for the term ‘armed conflict’ to be extended to
include these forms of strife, otherwise classified as law and order problems.
2.42.2
Some relief and rehabilitation provisions and measures relating to civilian victims in Jammu and
Kashmir state are listed in the chapter on refugee children (Pages. 334-335). The State party
reiterates that India is not in a state of armed conflict (in the sense of ‘armed conflict’ denoting a
state of war with another country). No information is given on the presence and involvement of
persons aged below 18 in various current insurgency or militancy situations. No information is
given on whether such children are impartially or humanely treated if apprehended. The clubbing
of such children with those affected by natural calamities is curious; their psycho-social needs
would surely differ. No analysis is provided about the alienation of conflict and insurgency-
affected children from the ‘Establishment’ portrayed or perceived as hostile to their cause. The
SPR response says nothing about changing the present legal bar on investigating charges of
violation of child rights or other rights by security forces, which human rights activists continue
to seek.
Economic exploitation (art. 32)

2.43 CRC Cttee # 65:
2.43.1 The response is inadequate. The Government’s contention that it is ‘taking all measures’ needs
further examination. With the notification of some industries as hazardous for children, work
relating to these has shifted from visible work-places to the less visible home setting, with a
related shift of child employment in these from boys to girls. The Government refers to
protection of the ‘best interests of the country (Pages 2)’ in international trade, which apparently
justifies overriding the best interests of the children. The SPR also says it is ‘not practicable
immediately to prescribe minimum ages for employment’ across the board, and also cites
‘ground realities.’ It then goes on to make glowing references to the Constitution – which clearly
states that children under 14 must receive education and not be economically exploited. The
State party has not done enough to honour this promise. Statistics on child labour still vary
widely; a flawed nation-wide survey to get the facts of real numbers (carried out in the 1990s) has
not been corrected and redone.
2.44 CRC Cttee #66, 67:
2.44.1 The Government does not agree to withdraw its declaration, and defends its own position. It
does not respond at all to the recommendation on full implementation of Indian laws cited. The
argument of impracticality and ground realities must be questioned. The shift to concealed or
un-checked home settings to hide occupations notified as hazardous underlines the need for

24
India to acknowledge and curb what is happening to child labourers. The Government claims it
is ‘taking all measures;’ All the laws cited are more than 10 years old: what result have the
measures yielded? The response to #66 draws attention to pages 373-375 of the SPR; there is no
separate response to #67. NGOs have called for existing laws to be amended to include
household or home-based enterprises. The cited pages list a number of laws and Acts and
mention some implementation measures. Without any reliable figure for the total number of
child labourers, it is difficult to appreciate whether coverage numbers are significant or not. On
page 378 (paragraph 157) the SPR declares that “a review of implementation of various
programmes for elimination of child labour reveals that in order to make a significant dent on
[sic] this age-old social evil, a multi-pronged strategy coupled with massive mobilisation of
resources, both physical and financial, is required.” Is this to be interpreted as a confession that
the intended dent is so far insignificant?
2.45 CRC Cttee #68:
2..45.1 The Government response does not answer the points raised in the Committee’s
recommendation. It speaks of monitoring by the Ministry of Labour. NGOs hold that there
should be an independent monitoring agency at state and national levels, to oversee enforcement
of controls and curbs, especially on bonded labour. Such an agency should be authorised to file
‘first information reports’ on violations and infringements of the laws.
2.46 CRC Cttee #69:
2.46.1 The Government has not responded to this recommendation. The SPR mentions one state’s
move to work at setting up child labour eradication committees, but there is no mention of any
national initiative on child labour vigilance committees. NGOs report that some such
committees have been set up, and have taken up cases, but they only visit factories, and
employers have blocked their efforts. NGOs say there is no documented assessment of their
functioning.
2.47 CRC Cttee # 70:
2.47.1 The Government has not responded to the recommendation for a national study. The SPR gives
no firm data on the nature and extent of child labour, the very information the Committee
recommends should be sought. On page 378, the SPR mentions project evaluations by
independent bodies, and assessments by government. These covered selected states.
2.48 CRC Cttee #71:
2.48.1 Rapid assessment in 4 districts, and a plan to undertake assessments in 29 more must be seen
against the fact that there are nearly 600 districts in India. This is not an achievement. The
Government response speaks of having ‘initiated action on a central legislation’ to specify
minimum age for admission to employment and work. Since when, and what is the time frame
for getting it done? The Government still ‘proposes’ to ratify ILO Convention 182: what does
this mean?
Drug Abuse (Art 3)
2.49 CRC Cttee 72: 73
2.49.1 The Government acknowledges that drug abuse is a major concern, and ‘a vital issue for
planners.’ It reports a survey has begun. The Narcotic Drugs and Psychotropic Substances Act
of 1985, the framework for drug abuse control, relates mainly to supply reduction, but provides
for detection, treatment and rehabilitation. The listing of decisions, schemes and measures dates
back to 1986. There is no indication of efficacy. The six pages of description are not oriented to
what is being planned or done for children, and provide no figures or profile of child drug
abusers or child traffickers in the drug trade.
Sexual exploitation and sexual abuse (Art. 34)

25
2.50 CRC Cttee #74:
2.50.1 The Government has not commented on this observation. Available information suggests that as
many as 25 per cent of those lured or trafficked into the commercial sex trade are below 15 years
of age. Paragraph 213 on page 392 provides information on the caste and class character of
source families and communities, which affirms the Comittee’s concern. Overall, the
Government’s response does not throw any light on points raised in the Committee’s
observation. Reference could have been made to the sale of children, especially of girls, in areas
where people were made destitute by natural calamities (eg cyclone damage in Orissa state) and
not helped enough by relief and rehabilitation measures. The chapter on sexual exploitation does
mention armed conflict situations as one site of exploitation, but says nothing about preventive
or corrective measures.
2.51 CRC Cttee #75:
2.51.1 A root problem with present legislation is the deficient definition of what constitutes sexual
abuse and rape; this must be corrected so that ‘criminalisation’ of the violation of children covers
all relevant offences.  The response and the chapter list and describe legal provisions, and the
chapter provides some information on the current situation, sources and causes of children’s
entry into the sex trade. There is no mention that the numbers and percentage of children
entering the commercial sex trade are rising. Sexual exploitation is not only for commercial
purposes. But incidence within the home and household is mentioned but not reported on,
except for a line on page 392 saying 8 per cent of children in the sex trade fled incest at home.
Available information indicates that the prevalence of domestic sexual abuse is not small.
Virtually all the SPR information refers to girl children, not boys. There is some
acknowledgement of the particular vulnerability of children from disadvantaged communities.
The Government expresses confidence in the Sarva Shiksha Abhiyan (Education for All)
campaign as a potential preventive (‘A literate informed population … is much better able to
articulate demands and lobby for social change which would ameliorate the conditions leading to
child sale, trafficking and prostitution.’). The probable time-frame for this social groundswell to
occur is not predicted. Less is said about the effectiveness of laws and controls in place. Many
measures are cast in the future tense, and there is no explanation of the slow pace of action.
There is no apparent analysis of social attitudes that condone and perpetuate the demeaning and
exploitation of women and minors, or reference to the rising graph of violence in society.
2.52 CRC Cttee. 76:
2.52.1 The response is confined to naming one NGO helpline initiative, which has the Government’s
support. The SPR chapter lists shelter schemes and services, but does not elaborate on scope or
effectiveness. There is no specific information on a national monitoring mechanism. The SPR
makes some comments on the difficulty of obtaining information.
2.53 CRC Cttee 77:
2.53.1 The response speaks only of ‘devadasis.’ It does not refer to the recommendation for a national
study, or to the recommended campaigns to curb harmful traditional practices, or to inform and
motivate the public.  On page 399 the SPR says “powerful  information campaigns bringing the
facts to the public would assist in creating a groundswell of popular indignation necessary to
promote reform in the police force as well as other sectors.” It is not clear who is being
addressed; why should the await public indignation before it reforms its own police and other
government services?
2.54 CRC Cttee # 78:
2.54.1 The response, and the information update (Page xxv) report that India has signed the SARC
Convention on Preventting and Combating Trafficking of Women and Children into
Prostitution, launched the ‘Swadhar’ recovery and reintegration scheme and a grant-in-aid

26
scheme, and benefited 565 rescued women (out of how many?). There is no information on
children helped, or on total estimated numbers involved. There is no information on measures to
upgrade the activities or cooperation of law enforcement agencies.  In additional responses, the
Government says it is in the process of amending the Immoral Traffic (Prevention) Act 1956
and ratifying the international protocol to prevent, suppress and punish trafficking. There is no
information on when the process might be completed.

Administration of juvenile justice (arts. 37,40 and 39)
2.55 CRC Cttee # 79:
2.55.1 The Government has not commented on the Committee’s observation. Ambiguity on ages of
applicability and culpability persists in several laws. The SPR table on page 45 speaks for itself;
the State Party has not moved to establish a single standard age. The 1997 India Country Report
stated 14 years as the ceiling age of childhood; the SPR appears to accept 18 years as the age of
majority, an age upheld in the JJ Act 2000.
2.56 CRC Cttee. # 80:
2.56.1 The Government has not responded.  (In July 2003, the Government has moved yet another
amendment to the 2000 Act, again without investing public consultation or NGO involvement).
2.57 CRC Cttee # 81:
2.57.1 The Juvenile Justice Act of 2000 is not accepted as child-friendly. It does not for example
provide the child the right to be heard in proceedings of a court or other judicial authority. Nor
does it define a minimum age for a child to be deemed capable of infringing the law. NGOs have
complained that the original 1986 Act was revised without due consultation and study. The
executing state mechanisms to enforce the 2000 Act have not been set up in most states. NGOs
who had been calling for full implementation of the 1986 Act, have now been urging full
enforcement of the 2000 Act, while also calling for its review and revision.
2.57.2 The 1997 Country Report affirmed that a child cannot be sentenced to imprisonment or to
death. The SPR cites Section 83 of the Indian Penal Code which provides that ‘nothing is an
offence which is done by a child aged above 7 years of age and below 12 years who has not
attained sufficient maturity of understanding to judge the nature and consequences of his action
on that occasion.’ This proviso remains conditional to someone interpreting the child offender’s
maturity of understanding, and is therefore not a sure protection.
2.58 CRC Ctee # 82:
2.58.1 The Government has not responded to this recommendation. In respect  of UNICEF (which
the Committee has mentioned many times), while the Government has acknowledge UNICEF
help in preparing the SPR, the SPR section reporting cooperation with UN and international
organizations (page 31),  does not even mention UNICEF.
D.9. Dissemination of the report.
2.59 CRC Cttee # 83:

2.59.1 The CRC is neither widely distributed nor widely known in India, and the country reports
are even less circulated or available. The SPR gives no information on quantum. The initial
print production order for the initial report (1997) was 6000 copies, half in English, half in
Hindi. It could have been published and put on highly subsidised sale in all Indian languages,
plus English, under the Govt of India’s “Books for Millions” scheme operated by the
Information Ministry, making it available at very low cost to the public. This has not been
done. The post-review period (2000-2002).The First Periodic Report has also been produced
in a very limited quantity in print form, and is not readily available to the public, except on

27
the GOI web-site. A summary version has reportedly been prepared in English, but is also
not available to the public in print form.
3. General Measures of implementation (arts. 4,42 and 44 (Para 6))
3.1 In any society, children do not exist in isolation. They are also neither a homogeneous nor an
amorphous quantity. They are born in different social categories, economic classes, regions
and so on and share in the advantages, disadvantages, privileges and disabilities of the
categories/classes in which they are born.  For any meaningful action in implementing the
commitments made by nations to the CRC, these distinctions and specificities of children
have to be clearly understood for purposes of effective appropriate interventions.

3.2
In the Indian context, the caste system, which is still alive and kicking, results in the more
rigid enforcement of the distinctions and differentiations among children but also operates
as an automatic mechanism of substantial overlap between the social category and the
economic class.  One of the little recognised and poorly understood basic facts about the
caste based order of India is that the three caste categories, to which people and children
suffering from various forms of exclusion, exploitation, discrimination, denial and
deprivation, namely, the Scheduled Castes (SC), the Scheduled Tribes (ST) and the Backward
Classes (BC) together constitute not merely vulnerable groups but account for the bulk of
the population and child population of India.  Together they, the 8% of the STs, the 17% of
SCs and the estimated 52% of the BCs
1, constitute three-fourths of the Indian population.
Their proportion in the child population is even higher.

3.3
They also contribute, now as through the centuries, the near totality of the physically
labouring population of India.  They are typically wage-employed (mainly SC and to some
extent BC and ST) and self-employed (mainly BC and ST and to some extent SC) labour
castes, which have inter-generationally continuous identity and occupational profiles, with
only quantitatively marginal and qualitatively insignificant modifications in recent decades
2.
They are the victims of the vicious system and practice of “Untouchability”, which is a
comprehensive and efficient mechanism of all-round exclusion from and denial of
economic, social, educational and cultural rights and mobilization of a major part of “civil
society” for the enforcement of these deprivations and denials

3.4
Almost the entire SC population continues to be mainly agriculture labour castes (ALCs),
Safai (“scavenging”) castes and so on, as they have been through the long corridor of
centuries.  Land reforms as enacted and implemented in different states of India have made
only marginal and insignificant difference to their situation.  Almost the entire population of
STs continues as in the past to be mainly cultivators of ill-developed lands in their remote
fastnesses, with poor connectivity with markets, technology and capital and collectors of
minor forest produce or non-timber forest produce. A good part of their lands has been and
is still being grabbed by non-tribals flouting laws prohibiting transfer of land from tribals to
non-tribals, often with the knowledge, support and the protection of individuals in high
public office and authority. An increasing proportion of their working population has been
sucked into wage labor in agriculture, mining, plantations and many other fields.
Simultaneously, in many traditional tribal areas, where they have been the majority
population, they have been reduced to a minority by influx from outside their areas.  The

1 The SC and ST population estimates have been taken from the 1991 Census while the estimates of the BC population have been drawn
from the report of the Mandal Commission.
2 Krishnan, P S (2003), Social Justice for and Socio-economic empowerment of Scheduled Castes (SC), Scheduled Tribes (ST) and Socially
and Educationally Backward classes (BC or SEBC) of India – Towards creation of an Egalitarian, Integrated Indian society, discussion
paper for the SAARC Citizen’s Charter

28
forest resources on the collection of which many tribes-people depend wholly or
substantially are shrinking with the devastation of the forests by commercial interests.

3.5
The bulk of the population of the BCs continues to remain as labourers in many fields,
mainly self-employed and partly wage-employed. The market and employment of the
backward classes engaged as self-employed workers in traditional home workshops (eg
weavers, potters), in water bodies (fisher folk), and in various other areas of labour like
stone-cutting, earthwork, are shrinking with the increasing intrusion of individuals and
corporate bodies with access to superior technology and finance in the same or competing
areas. Some of the communities of the BCs are self-employed in small-scale agriculture.
They too are exposed to problems arising from lack of access to modern technology, finance
and vulnerability to unequal competition and undependable climatic conditions compounded
by dependence on rainfall.

3.6
The bulk of the population of the religious minorities, who account for about 15% of the
population of India, belong to castes which come in SC, ST or BC groups and strata and
they broadly share the deprivations and disadvantages of their brethren belonging to the
religious majority of Hindus.

3.7
Mention must also be made of nomadic, semi-nomadic communities and ‘vimukta jatis’
(which translates as the liberated castes), classified before independence as criminal castes.
The only liberation that the vimukta jatis have experienced is the change of the
nomenclature.  Some of them are listed as SCs, some as STs and others as BCs.  Among the
last, there are certain castes/communities of religious minorities, especially Muslims. Barring
exceptions, they are among the weakest and worst off of the SCs and STs.

3.8
Apart from the economic dimension, the deprivation and disadvantages of the SCs, STs and
the BCs have their educational, social, residential, cultural, socio-psychological and socio-
linguistic dimensions also. Mention has been made of “untouchability” covering different
forms of economic and non-economic discriminations and humiliations. Both SCs and STs
are subjected to criminal atrocities.  All the three are in different degrees educationally more
backward and deprived than their brethren who are not SC, ST and BC. The rural locations
and habitations of the SCs are humanly the most uninhabitable. The hamlets of STs are
remotely located and are poorly endowed. The rural residential locations of the most
backward of the BCs, like fisher folk and other non-scheduled/non-‘liberated’ backward
castes, are extremely uninhabitable. In urban areas, the burgeoning slums are mostly peopled
by SCs, STs and BCs (including Muslim and Christian BCs).  In all indicators of quality of
life like health, longevity, infant mortality, child mortality and maternal mortality, the SCs,
STs and BCs are in different degrees worse off than those above these classifications.

3.9
The Indian elite, occupying the commanding heights of the Indian economy and India’s
institutional structures, is mainly composed of people of castes above the Scheduled and
Backward strata or the Scheduled Tribes. This powerful category constitutes a minority of
no more than 20-25% of the country’s population. Often referred to as the mainstream, its
members appear to regard themselves as such. This can affect actual operation of even the
most egalitarian or ‘levelling’ policies, laws and standards, and it does.

3.10
In this specific context of India, children born in the ‘categories’ of SC, ST and BC,
including Religious Minority BC start life with severe handicaps. Considering that these
children account for a clear majority of India’s child population, it is necessary for any
negative bias in the country’s decision-makers to be addressed, and redressed. The reality of
who children really are, with all the hard facts of how their origins affect their status, must be

29
recognised. Policies, programmes and schemes on the rights and entitlements of children
must be oriented to the real majority of children. The State party could do well to analyse the
facts in coverage and benefit, and report on required correctives. This re-focusing would not
preclude due attention to children of other categories in respect of their rights and
entitlements, but would give priority attention where it is long overdue.

3.11
It is commendable that the Constitution of India has unique and far-reaching provisions to
secure the just entitlements of the SCs, STs and BCs including their children, by eliminating
disadvantages and deprivations. Important legislative measures have also been enacted in
furtherance of the Constitutional provisions. The SPR refers to some of these, but the
problem in India pertains to the outcome.  It is a measure of the recognition of the gap
between the Constitutional prescriptions and norms and the disappointing outcomes that the
GOI appointed a National Commission for Review of the Working of the Constitution,
headed by a distinguished, former Chief Justice of India, in 2000. The Commission has made
far reaching recommendations in Chapter 10 of its report, read with its background paper on
“Pace of Socio-economic Change and Development” regarding SC, ST, BC, minorities,
other non-scheduled/non-‘liberated’ backward castes, Safai karamcharis (“scavengers”),
unorganised labour, bonded and child labour, women, girl children, land reforms, etc. This
high-powered commission has made the following important observations
3

3.12
The Constitution aimed at a social revolution that would transform the Indian society… The
Preamble to the Constitution accords primacy to Justice, social economic and political in the
making of state policy and state action. Accordingly, an impressive array of legislative
enactments and executive orders have provided a firm legal framework for government
action.” It then ruefully takes note of “the reality of the gap between aspiration and
achievement”, arising from the failure to provide “a comprehensive package covering the
entire gamut of economic, social and education measures” required to bring about “the total
social transformation envisaged in the Constitution” and calls for action “to carry forward
the task of bringing about social, economic and educational equality fortified by the mandate
of our Constitution.”

3.13
Realizing that developmental and financial support for the elimination of the disadvantages
and deprivations suffered by these three social categories and consequently their children
and to provide for their positive development to a level of equality with the upper strata of
society, the Government has also devised the developmental mechanisms of the Special
Component Plan for SCs and Tribal sub-Plan as means of mobilising developmental
resources from all sectors, which have been in existence over the last quarter of a century.
While these have produced some results, over time they have been ‘routinised.’ There have
been gaps in the provision of adequate Plan outlays, corresponding budgetary allocations,
utilisation of funds and coordination, resulting in quantitatively and qualitatively  sub-optimal
outcomes and even diversion of funds. The Commission has attributed this to  “want of
seriousness of purpose in line with the Article 46 of the Constitution… and sincerity”.

3.14
The rights and entitlements of the Indian child have to be viewed, understood and specified
in this context. To this must be added the rights and entitlements of other categories and
groups of children who may partly overlap, like children who are physically or mentally
challenged, children of migrant families, children of linguistic minorities, children of groups
uprooted by either development schemes or natural disasters.

3 Report of the National Commission to Review the Working of the Constitution, 2002, Chapter 10, pp 192 onwards, Universal Law
Publishing Co. Pvt Ltd

30
3.15 India should not continue to be so patient with its own failings. If the fault is social, or
cultural, the State must set a norm based on natural justice. This does not require an
international mandate so much as a return to national vision of an India for all Indians. Both
political and executive will and accountability are needed. The efforts for fulfilment of these
rights and entitlements will have to be provided in full measure by all sectors and
institutions of the central and state governments. This should be a time-bound and sustained
effort, spearheaded by the office of the Prime Minister, and overseen by the Cabinet
Committee and the National Development Council (of state chief ministers). The
coordinating function of the Department of Women and Child Development (DWCD) in
the Ministry of Human Resource Development cannot suffice of itself. The Ministry of
Social Justice and Empowerment and the Ministry of Tribal Affairs, and their counterparts
in the State governments of India, also have a role to play.

3.1   Children in Constitutional Provisions

3.1.1
The Indian child is protected by constitutional provisions and laws enacted over the years.
However, by not clearly defining the child and specifying an age up to which an individual
will be deemed to be a child, the State party has left such definition to the various laws and
interpretations. These different age-specifics under different laws not only create a
dilemma, but set the stage for injustice.  Whether the same human being is or is not a
child depends upon the law that is being invoked in a given case.

3.2   Legislation related to Children

3.2.1. The SPR reiterates the claim of national adherence to Constitutional protections and
provisions. Page 4 describes what the Constitution promises, but does not report how well
these promises are honoured. On directive principles of the Consitution the SPR states: ‘The
State should strive to convert these principles into fundamental rights at the earliest (sic) so
that all the rights of children can be legally asserted and their withdrawal under any
circumstances not permitted.’ In stating the “the State should..” the Government is
addressing itself. In view of reports that the proposed new national policy (Charter) for
children drops the very word ‘right,’ how would the State party explain whether it is striving
in the correct direction? The SPR also cites the constitutional amendment on the right to
education as a step towards achieving the aim of converting principles into rights. However,
it fails to say why the child aged below six years is now left out of the fundamental right to
learning.

3.2.2 The SPR lists policies and plans adopted to benefit children. Of the 12 listed, only  three fall
in the reporting period. The SPR cites strong legislative support and political will and lists
laws enacted. Of the 12 legislations listed, not one has been enacted in the reporting period
(the most recent being 1996), and one dates from 1890. How well have these existing laws
been upheld and enforced in the reporting period? There is no word on this, only a remark
that ‘an obligation to review the manner in which existing laws are implemented’ is inherent
in review of all laws pertaining to children. Where is the assessment of efficacy or impact?
The Juvenile Justice (Care and Protection of Children) Act 2000 is listed among policy
measures.

3.2.3 A mention is made of the pro-active and increasing initiatives of the judiciary and notably
the Supreme Court  in issuing rulings defending child rights, and also refers to ‘social action
litigation.’ The SPR does not dwell on whether such rulings and petitions have become
necessary because the Executive and Legislature are not living up to their obligations.

31
3.2.4 The SPR details some legal measures to institute media controls on promotion of  tobacco,
alcohol use, infant milk substitutes, feeding bottles. It does not say anything about media and
internet use of children in pornography. NGOs have called for special legislation, or
enhancement of child abuse laws, to address this.

3.2.5. The federal structure makes comprehensive legal reforms difficult since state governments
are responsible for implementing laws pertaining to children. However, strong sentiment
contends that socio-economic compulsions will continue to prevent full realisation of
children’s rights despite constitutional and legislative provisions. The official government
position, as exemplified in their declaration on child labour while acceding to the CRC,
expresses this sentiment:  As the SPR says, some legislative steps have been taken. Questions
on quality and workability remain. NGOs have expressed doubts about the Juvenile Justice
Act (2000) treating children in conflict with law together with children needing care and
protection, even though they are dealt with in separate chapters.

3.2.6.   While activists accuse the government of showing unseemly haste in enacting the 2000 J J
Act, and making no effort to initiate a discussion with children, NGOs and care providers in
order to enact a progressive law, government officials are contend that child rights activists
could have approached any Member of Parliament. As many as 68 amendments were
suggested when the Bill was discussed in the Parliament. The activists do not accept the
argument that discussions on the Bill were held. While some legal luminaries might have
been consulted, they say the draft Bill was kept tightly under wraps. Several activists and
NGOs with substantial experience in implementation of the earlier Act could not provide
any input since they were unable to obtain copies from the Ministry of Social Justice and
Empowerment, which prepared the Bill.

3.2.7. The 86
th Amendment to the Constitution, on the fundamental right to education for the 6 to
14 age group, has also resulted in an inserted Article 51(A) which imposes a fundamental
duty upon parents or guardians to provide opportunities for education for their
children/wards between the ages of 6 and 14 years. The amendment has provoked agitation
and criticism from child rights activists and educationists across the country. Their
contention is that the State is abdicating its responsibility for the provision of free and
compulsory, quality education that must be accessible and appropriate, both socially as well
as physically.  In effect it is penalising the poor parents twice - for being poor and for their
inability to send the child to school, the causes for which may be beyond their control.  Lack
of quality, appropriate and accessible education is one of the major reasons for children
dropping out of school. The other reason of course is the need for children to look after
younger siblings. In the absence of alternative child care facilities for children that have been
deliberately kept out in the amendment, how can it be expected that parents will be able to
‘provide opportunities ?’

3.2.8. It was to prevent sex-selective foeticide, and allow all children equal rights to be born, that
the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 was
passed. Although this Act was passed neither the State Governments nor the Central
Government have taken appropriate measures to control misuse of the sex selection
procedure. This is obvious from the alarming sex ratio record the 2001 present Census. This
prompted Centre for Enquiry into Health and Allied Themes (CEHAT), Mahila Utkarsh
Mandal (MASUM) and Dr. Sabu George to file a petition based on which an order was
passed on May 4.2000  (W.P (C) No. 301 of 2000) directing the Central Government and the
States to undertake the necessary actions to implement the Act. The case is still on.

32
3.2.9 One of the strongest signs that the Family Law is much more oriented to adults than to
children is the categorisation of children as Legitimate and Illegitimate depending on the
status of the marriage or relationship of the parents. A child born out of wedlock or of a
‘void’ or illegal marriage is considered “illegitimate”. All laws make a distinction between
“legitimate child” and the “illegitimate child”. Zoroastrian, Muslim and Christian children, if
illegitimate, are not entitled to any inheritance rights from their father.

3.2.10. In the case of Hindu children, if the child is born of a bigamous marriage or a void marriage,
he or she has the right inherit the father’s property, although it has no right over the
property of parental relatives. In case, there has been no ceremony of marriage, the child has
no rights over the father’s property. Thus the Hindu law categorises and discriminates
between two kinds of “illegitimacy”. While according to the Hindu Minority and
Guardianship, Act. 1956, the natural guardian of a boy and an unmarried girl is the father,
and only after him the mother, in the case of the “illegitimate child” the mother is the natural
guardian and after her, the father.

3.2.11. Thus whatever is the law, children pay for the decisions taken by the parents and are denied
inheritance rights. What is worse, the child born in case of a rape of a woman will be
stigmatised and treated as “illegitimate” not just by society, but also by the law.

3.2.12. There is legal recognition of the fact that children must not be married before they are
physically and mentally ready for it. The Child Marriages Restraint Act, 1929 prescribes a
minimum age of 21 years for males and 18 years for females.  This law is applicable to all
Indians irrespective of religion. As the subtitle of the Act suggests, it is merely a law to
prevent the solemnisation of child marriages, but does not address the situation of a child
who has been married off before the law could prevent it.  It does little to protect children
who have been married off, sometimes even before they can stand on their own feet

3.2.13. The right to alternative care, for children whose parents are unable to provide the care and
protection needed, or have no parents is governed by the Juvenile Justice (Care and
Protection of Children) Act, 2000 or under the adoption law, which is also determined by
religion of the adopting parents. The lack of a uniform adoption law, leaving it in the ambit
of personal laws, leaves out a number of children from gaining from alternative family care.
Present adoption law is not designed to offer maximum possibilities for a child in need of a
family. Subjective or culturally-influenced assumptions that adoption must not ‘ transport a
child from one faith community to another, or that no one should adopt two boys or two
girls but one of each sex, undermine the objectivity and fairness of official handling of
adoption requests.

3.2.14 Provisions for inter-country adoption have been made to facilitate giving of children in
adoption to foreign parents and this is regulated by guidelines issued by Ministry of Welfare
in pursuance of the directions given by the Supreme Court. The Central Adoption Resource
Agency (CARA) and state-level adoption cells have been created to monitor all adoptions-in
country as well as intra-country. Since a child cannot be offered for foreign adoption unless
there is no Indian family wishing to adopt her or him, questions arise about who interprets
what is in a child’s best interest in such cases.

3.2.15 The Child Labour (Prohibition and Regulation Act) was enacted in 1986, to specifically
address the situation of children in labour. However, this law is inadequate both in its
understanding and the framework that it provides for dealing with the problem of child
labour. By distinguishing between hazardous and non-hazardous forms of labour, and
identifying certain processes and occupations from which children are prohibited from

33
working, it leaves out a large range of activities that children are engaged in and are exploited
and abused.  The large-scale exploitation and abuse of children employed in domestic work
and hotels are cases in point.

3.2.16 In fact the anomaly exists in the Convention on the Rights of the Child too. While Article
32(1) of the Convention states that children must be protected from economic exploitation,
clause 2 of the same article requires States Parties to provide for appropriate regulation of
hours and conditions of employment. Not only that, it also requires States Parties to. provide
for a minimum age for admission to employment, ignoring the very objective of the
Convention to recognise, promote and protect the rights of all persons below 18 years of
age.

3.2.17 Weak as the law may be, gross violation of the Act is found in prohibited as well as regulated
employment. Children engage in various forms of employment: in hazardous trades,
factories, unorganised sectors, family enterprises, agriculture and so on. The official view
tends to attribute this to inadequate manpower, but critics point to a lack of political will and
the nexus of vested interests since this also exists with high adult unemployment. The law
must be enforced more stringently through prosecution and conviction. There is also the
problem of invisible child labour that cannot be addressed through laws. Children often
work to contribute to the household and are involved in family vocations. Girls’ work is
usually invisible, as it is located in the domestic sphere. From the legal perspective this is
extremely difficult to identify; who should be prosecuted also remains a dilemma.

Other Policy Measures

3.2.18 The coercive laws based on the population policies are having a negative impact on children.
Since adults will now not be able to stand for elections in some of the states if they have
more than two children, some are choosing to give away their ‘excess’ children in adoption
or disown them.  The withdrawal of facilities after the second child is bound to have an
impact on the status and value  that the girl child in the family will have. It is a recipe for
gender discrimination and continuation of female foeticide. This is a by-product, but it is
against the CRC, which enjoins on states parties the responsibility of giving priority to the
child’s interests in all situations affecting the child.

3.2.19 It has been found that in the absence of holistic people-centred and child-centred planning
governmental policies and actions have an impact adverse on children. It is therefore
important to undertake an examination of seemingly unrelated policies such as the
agricultural policy or the forest policy or the environmental policies and objectively gauge
their impact on children. There is evidence that there is increase in malnutrition levels
among children due to change over from food crops to cash crops as a result of the
agriculture policies or the loss of access to traditional sources of food and nutrients and
livelihood of adults due to the loss of access to forests as a result  of the forest policy. The
SPR does not report on such information, and the State party could be asked to do so.
3.2.20 In recalling the 1992 NPA for World Summit goals, the SPR omits to mention that India
achieved only 2 of the 27 goals by the target year of 2000. Part of the implementation period
falls within the time-frame of the Report. [The shortfalls were reported without comment in
the India Country report to UNGASS].

Primary Ministry / Department and coordination  mechanism

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3.2.21 The primary government agency responsible for matters concerning women and children at
the central level is the Department of Women and Child Development (DWCD) in the
Ministry of Human Resource Development (HRD). With the objective of strengthening
central level co-ordination, a National Co-ordinating Mechanism (NCM) was constituted in
January 2000 through an executive order issued by DWCD. The NCM is expected to
monitor implementation of the CRC, although its terms of reference have not yet been
formulated. The first meeting was in September 2000, and it is not known whether it has
met subsequently. It is unclear what importance and actual status the State party attaches to
the NCM.

3.2.22 Although DWCD is located in an important ministry, it is considered a fairly light-weight
department in the overall governmental hierarchy. A minister of state heads the Department.
Overall, it lacks the clout necessary to influence other ministries and departments concerned
with children’s issues that operate their own programmes and schemes. Its own internal
obsession with its flagship Integrated Child Development Services (ICDS) programme as the
complete answer to every child’s prayer also constrains its ability to not only promote but
exemplify a cross-sectoral and non-compartmental approach to policy and action for the
child. The non-rights ‘child development’ design of ICDS sets its own limitations. To be
effective, a national coordinating mechanism would have to have a more holistic and cross-
sectoral vision, and a capacity to enlist other elements of the overall structure of governance
as well as civil society and professional bodies.

3.2.23 As a support organisation, the National Institute of Public Co-operation and Child
Development (NIPCCD), set up in 1975 as an autonomous body under the DWCD, is
expected to provide a comprehensive perspective on the status and needs of children and
women through development, research and networking. Although intended to function as
DWCD’s technical arm and as a leading government training institution, NIPCCD continues
to suffer from insufficient technical capacity that could help it play an influential and
meaningful role in implementation of the CRC.

3.2.24 If CRC values and principles are to be incorporated in the government’s policies and
programs, this should be done systematically in sectoral policies and programs and at various
levels through a display of greater political commitment. Several ministries, departments and
autonomous institutions in the central and state government are responsible for important
aspects of the CRC. The ministries, especially the technical ones, have not accepted
DWCD’s lead role in implementation of the CRC because of the perception that it lacks
technical capabilities. An important task which seems to be getting bypassed by the DWCD
move to bring forward a new national policy (Charter) for children is that the 1974 National
Policy for Children needs to be reviewed to encompass all aspects of the CRC and to
prepare for systemic changes in the National Plan of Action, which refer not to CRC but to
the World Summit for Children (1990) goals and subsequent UNGASS 2002 commitments.
4. Definition of the Child (art. 1)
4.1 The Committee recommended that the State party review its legislation with a view to
ensuring that age limits conform to the principles and provisions of the Convention, and
take greater efforts to enforce those minimum-age requirements. The SPR, however, reflects
continuing misinterpretation of  the CRC standard,  lists several age ceilings  in several laws,
and seems not to feel the need to correct these anomalies. How the best interests of the
child can be served by persisting ambiguity in law and enforcement is not clear.

35
4.2 The reality is that there is to-date no uniform definition with respect to children. How does
the child find its way through the varying provisions of  different laws ?

a The Indian Majority Act 1875: a person is deemed to have attained majority on
completion of 18 years.
b The Child Marriage Restraint Act 1929: “child” means a person who, if a male, has
not completed 21 years of age, and if a female, has not completed 18 years of age.
c The Factories Act 1948: No child who has not completed his fourteenth year shall
be required or allowed to work in any factory.
d The Child Labour (Prohibition and Regulation) Act 1986: “child” means a person
who has not completed his fourteenth year of age.
e The Immoral Traffic (Prevention) Act 1986: “child” means a person who has not
completed 16 years of age, and “minor” means a person who has completed 16
years of age but has not completed 18 years of age.
f When the laws are in conflict with one another due to these diverse definitions, who
rules in the best interests of the child? Which law overrides another? For example
under the Indian Penal Code, the age set for ‘statutory rape’ is 16 years, whereas
sexual intercourse by a man with his wife if she is below 16 years of age is not rape.
The Child Marriage Restraint Act prohibits child-marriage; child-marriage is a
marriage in which either of the contracting parties is a child, i.e. a female under 18
years and a male under 21 years.
g The 2002-2003 Annual Report of the Department of Women and Child
Development blithely lists out several of these age anomalies, without comment
(See Annexure #1 to this report).

4.3 It is necessary that the definition of the term “child” be brought into conformity with the
Convention, viz. below 18 years of age, by establishing one standard ‘age of majority.’ This
has been a demand of child rights activists throughout the country, especially with regard to
the Child Labour (Prohibition and Regulation) Act which prohibits children below 14 years
from working in hazardous occupations and processes. The question of minimum age has a
bearing on all aspects of how a child is regarded and treated and what role the child itself can
play in family, community and society. The SPR’s presentation of this issue should be
questioned.

5. General Principles
5.1 The Right to Life, Survival and Development

5.1.1 India has to explain why neonatal mortality stagnates at unacceptably high levels, why
neonatal morbidity has not been addressed. The defence that problems are ‘mammoth,’
because of the numbers involved simply does not hold. The Tenth Five-Year Plan has
expressed serious concern that one third of Indian babies are born with low birth-weight.
Persisting high rates of mortality in the first day and first week of life call for targeted action,
beginning with the prevention of morbidity. Whatever the total numbers, these changes do
not take place in a mass national sweep: they occur in every household, in the radius of every
health and child care service point. They require community and household education and
State provision of protective care in every hamlet, village and shanty town; was this
impossible between 1997 and the submission of the Report? It was not impossible even
before that; it simply was not done.

36
5.1.2 High rates of loss in under-served areas, and disparities in mortality and morbidity point to
inequitable service outreach, coverage and accountability. Maternal mortality and morbidity
continue to undermine prospects of improvement in child survival. India is one of two
South Asian countries competing for the world’s highest rate of maternal mortality. The SPR
chapter on CRC Article 6 contains no good news. It quotes the 1974 National Policy for
Children, which says of its commitment to providing adequate services, that “the State shall
progressively increase the scope of such services so that, within a reasonable time, all
children in the country enjoy optimum conditions for their balanced growth.” More than 28
years later, children still do not even enjoy optimal conditions for their survival. Whatever
measures are in place are not working well. Budget allocations for health and nutrition
continue to be too low and not well-enough focused.  Why else would neonatal and maternal
mortality be stagnating? The SPR does not provide any analysis of why survival remains such
a challenge.

5.1.3
Limited respect and unequal opportunities for girl children are reflected in their worst form
in the gender differentials in neonatal mortality.  The SPR acknowledges this fact and rightly
attributes higher female deaths to social causes. However, it goes on to regret that the
culpability for the act of infanticide, which is treated as murder under the Indian Penal Code,
rests in most cases with the mother alone (Page.65).   The SPR should have stated in
categorical terms what the government is doing to plug the loopholes and to make the
provisions stringent but gender balanced in the legal system and whether it has a clear
perspective and plan on how the issues should be dealt with at the societal level.

5.1.4
The SPR acknowledges female infanticide and foeticide as gross violations of child rights,
which are reflected in the skewed sex ratios in the country. It mentions the Pre-natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 that has been
enacted to deal with the issue. It does not comment on the experience with its
implementation in different states and whether any convictions have actually resulted.
Orders of the Supreme Court have made the Central Supervisory Board responsible for the
review and monitoring of the Act.  The SPR does not provide information on how active
and effective the CSB has been.

5.1.5
The SPR mentions a number of programmes, such as the Balika Samriddhi Yojana (‘plan for
the prosperity of girls’) and Apni Beti Apna Dhan (‘our daughter, our wealth’ only in
Haryana state).  A nationwide mapping of such programmes would have provided a more
complete picture of the situation.  A comment on their performance and outcomes would
have made such mention more meaningful.

5.2 Respect for the Views of the Child

5.2.1
The SPR speaks of Government’s support for the involvement of children in the events
leading up to the UN General Assembly Special Session for Children. This episode – which
owed more to NGO effort and UN interest than to the State party – provides no insight
into how well children can participate overall in matters and decisions affecting their lives.
The need for and the constraints to promoting and institutionalising child participation have
been rightly enunciated. However, other than that, there is not much on what is being done
to promote child participation or to address any of the constraints. The State party’s
appreciation of child participation over and above what might be termed token involvement
remains unclear. The new 2003 provisions for the proposed national policy (Charter) for
children remain faithful to the 2001 draft policy by not mentioning participation at all,
beyond promising them ‘every opportunity for all-round development.’

37
5.2.2 Some State governments (e.g. Andhra Pradesh, Rajasthan, Uttar Pradesh), with motivation
and support from UNICEF, are beginning to encourage efforts to organize and mobilise
children. While the good intentions and contribution of a number of key government
functionaries who have encouraged and enabled children’s participation in government
programmes and policy development initiatives need to be acknowledged, the interpretation
and practice of children’s participation continues to be superficial and sporadic. In the name
of child participation, children are essentially seen as channels for achieving project goals
rather than as participating agents in the government projects.

5.2.3
The task of experimenting and innovating has been left to NGOs, while the government has
not shown its commitment by providing regular spaces for consultations and interaction.
While there cannot be a model or blue-print for child participation, adoption of key
principles for good practice are required in order to scale up and progressively
institutionalise children’s participation. Neither the 2001 draft of the National Policy and
Charter nor the draft National Plan of Action address this issue adequately. Somewhere
there seems to be a sense of discomfort within the government in addressing issues of
participation and an inference that this may militate against the stability of the family. For
example, the draft policy and charter says “All children enjoy freedom of association and
peaceful assembly, subject to reasonable restrictions and in conformity with social and family
values”. Even if one was to ignore the near certain likelihood of arbitrary and adult-centric
interpretation of reasonable restrictions and the denial of children’s personhood as being
contrary to so-called social and family values, the question could still be asked – what is the
government doing to create space and recognition for the potential of Indian children to
take part in social processes and decisions as genuine actors?

5.3 Best Interests of the Child (Ref. Personal Laws, adoption, domestic abuse)

5.3.1
The SPR cites the constitutional provisions and lists various policies, plans of action,
schemes and programmes pertaining to children and the proposed national charter and the
national commission to illustrate India’s commitment to the best interests of the child.

5.3.2
The SPR is quite candid in some places.
a It refers to the complaint of some NGOs that child rights is absent in the agenda of
political parties, that much remains to be done by way of introducing appropriate
legal measures as well as taking steps to ensure their effective implementation, that
the administration needs to be equipped better for promoting children’s rights and
the concerned officials should be sensitized to issues related to children.

b It acknowledges, quoting NGOs, that awareness about what should constitute the
best interests of the child is lacking among most adults who regularly interact with
children or influence their lives in some ways and that there is general lack of will to
implement and protect the best interests of children.  Reference is made to the lack
of adequate sanitation facilities in schools, especially for girls, closure of municipal
schools and replacement by private schools, poor implementation of the mid-day
meal scheme and the teacher-centred educational system.

c The SPR does not however appear to accept any blame for such lack of progress.

5.3.3
While the proposed National Charter for Children and the National Commission for
Children have still not come into effect, the discussion on legislative measures, judicial
interpretation and social interest litigation, policies and programmes and standards for public
and private institutions in the SPR does not present the full picture.

38

5.3.4
The proposed National Policy for Children is more of a statement a  wish than a statement
of intent backed by a clear and comprehensive plan of action, with stated commitments to
provide the necessary primacy to financial and human resource commitments and
mechanisms of accountability. Provisions faithful to what the CRC demands must be
ensured. The various programmes that have been cited need to be reviewed thoroughly for
their scope, outreach and effectiveness.

5.3.5
There is no evidence to corroborate the statement that the principle of ‘best interests of the
child’ is given due consideration while adopting budgets, policies and programmes at the
state and local levels (Page.51). The persistently meagre budget allocation for children in the
last several years at the central level sets a negative norm for states, who carry much of the
responsibility of budgeting for social development measures.

5.3.6
The claim that government collects inputs from an array of sources and interacts with
NGOs on specific issues (Page. 51) can be contested. Government is generally unwilling to
share information about its proposals, and consultation with civil society is often on a token
level. The governmental image of NGOs is of implementers, not planning partners.
Discussion more often comes after decisions have been taken. This way of working prevents
inputs from civil society (such as NGOs working with children) and the inclusion of
children’s perspective on their best interests in the policy-making. Due to lack of
transparency and inadequate consultations with civil society representatives, many loopholes
go unplugged. One is not aware of any consultations with children by the governmental
agencies for policy research.  Adult interpretations of the best interests of the child govern
policy making and the real experiences of children are not reflected in policy making (eg
children’s experience with the law enforcement agencies, experiences of children with
disabilities with schools, special institutions and healthcare system).

5.3.7
The process of legislative reform is largely within government, and progress has been slow.
Given the lack of consultations during the drafting process and the unseemly haste in
enacting the Juvenile Justice Act 2000, there were few opportunities for consulting children,
NGOs and care providers in order to enact a progressive law in the best interests of
children.  This law tends to be ‘state-ist’ in character, as it places undue reliance on coercive
police processes. Children in conflict with law have not been given the right to a legal
counsel while the police are vested with immense power
4.  NGOs did not get included in
whatever three-yearly review (due in 2003) was carried out. An amendment to the 2000 Act
(moved in Parliament in July 2003) is already under fire from NGOs for its inadequacy
compared to what could have been amended. Meanwhile, not all states have either framed
the rules or constituted the juvenile welfare boards required to implement the 2000 JJ Act.
With the law inadequately implemented, the question of its review seems premature.

5.3.8
While judicial activism and progressive interpretation of laws, especially at the higher levels,
is a positive development, it is generally recognised that the provisions for ensuring ‘the best
interests’ of the child in existing legislation are interpreted and implemented by the law
enforcement system without sufficient understanding of what the principle implies. The
conventional perception of a child as a semi-person within a family or household persists,
and even proposed policy speaks of children’s entitlements and access to protection of the
law as being subject and somehow conditional to their fulfilling their duties to family and
society. The State needs to demonstrate capacity to recognise the child as a citizen and to act
in the child’s defence.

4 Times of India, 26 January 2001, pp 3

39

5.3.9
The statement that people’s representatives (Members of Parliament and state legislatures)
can and do bring child-related issues to government’s notice is rather inflated. Given the
current state of affairs at the political level, children’s issues have been left on the back
burner as the tabling of many bills on matters affecting children has been delayed and
discussions never seem to take place.  Apart from the government, all political parties must
share the blame for the neglect of children’s issues.

5.3.10
The SPR refers to the basic standards for public and private institutions.  While rules and
procedures have been laid out, there is no instrument for ensuring that these are complied
with. There are no checks and balances in the system that is based on inspections by
government departments. There is not much space for monitoring by civil society
institutions or a platform for addressing children’s grievances.

5.4 Non-discrimination

5.4.1
The SPR refers to the range of constitutional guarantees and progressive laws that seek to
ensure equality before law, equal protection to all and non-discrimination. The Report
should have provided better assessment of their application and how well they work.
Current concerns about fragmentation and divisions in society increase the State’s
responsibility to set and uphold standards of equity. The poor, not just their children, are
handicapped by lack of access to information that could enable them to seek impartial justice
or development opportunities. Social hierarchy and patriarchal values perpetuating
discrimination based on gender, caste and class continue to persist.

5.4.2
Government has adopted a policy of affirmative action towards addressing issues of socially
backward groups (such as the scheduled castes/tribes and now the other backward castes)
and the girl child.  While the SPR describes in detail the worrying decline in the sex ratio and
the various ways in which discrimination manifests itself, it does not provide a perspective,
strategy and plan to address the issue in a holistic manner. Education, concessions and
public awareness have been the main strategies of the government and laws have been
enacted to address some of the manifestations of gender, caste and class
5 inequality.
However, successive governments have not taken into account or challenged some of the
systemic issues that contribute to discrimination (such as inheritance, system of dowry,
reduction in the costs of marriage).

5.4.3
Despite the government’s affirmative action policy, support through scholarships, residential
schools and hostels for children of scheduled castes and scheduled tribes and the right of
minorities to establish and run their own educational institutions has not ended
discriminatory practices. This raises questions about the capacity of the law enforcement
agencies to perform their task, the political will of the legislature to mount pressure and of
the executive to maintain it.

5.4.4
Discrimination – overt and covert – occurs in various forms. While the SPR refer to
gender–based and caste-based discrimination and to some extent disability, it does not
sufficiently discuss discrimination taking place on the grounds of religion and ethnicity.
While gender, caste and disability have been linked with the prevalent societal norms and the
state acknowledges and seeks to address these through ameliorative measures, discrimination
on the basis of religion and ethnicity have much to do with the attitudes and practices of the

5 The Protection of Civil Rights Act (1955) and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989) seek to
ensure the interests of the Scheduled Castes and Scheduled Tribes, including their children.

40
state agencies.  The SPR does not refer to the mechanisms that ensure that the police and
other state agencies do not practice discriminatory action in registering and addressing
complaints, granting compensation and offering protection to victims and witnesses, as well
as to children caught in the cross-fire of adults’ hostilities.

5.4.5
The SPR refers to the problems of people/children with disabilities briefly but is silent on
what the government is thinking or planning to do to ensure that they are not marginalised
and discriminated against in society, in the education system, in public places and in the
planning processes. Current coverage by services is woefully inadequate (5 per cent).
6. Civil Rights and Freedoms (art 7,8,13-17 and 37 (a))
6.1   Name and Nationality

6.1.1
The Government of India does not have a stated strategy or time target for achieving
universal birth registration.  The SPR states that the level of birth registration is “around 54
per cent;” other government reports provide different figures. The 2000 India Country
Report admits that birth registration fell from 47 per cent in 1990 to 40 per cent in 2000.
The Govt of India’s 2002 publication ‘The Indian Child: A Profile’ records an apparent 1995
peak of 55 per cent. The Department of Women and Child Development’s annual report for
2001-2002, reports 35 per cent. How reliable is the SPR claim, if it is belied by the
government’s own reports ? Which figure is closest to the truth?

6.1.2
A positive development has been the introduction of a new format for information
collection for the civil registration system (January 2000). Some NGO assessments say it is
too cumbersome. However, not much is known about the measures undertaken by the state
governments to actually promote birth registration. The decline in registration indicates that
the measures are not working. BR form size and format.

6.1.3
Government considers annual registration of 25 million births to be a ‘mammoth task..  For
the 200,000 local registration units and 100,000 local registrars in the country the task should
be manageable if they are efficient and effective. ’If even half of them function, this would
be 14 births a month for each unit or registrar. It is not known what these registration units
and local registrars are doing and what factors have led to a substantial increase in birth
registration in certain states and held back others.

6.1.4
Harassment of parents seeking birth registration certificates for admitting their children to
schools by officials (sometimes with bribes requested ) is well known.  The SPR indirectly
acknowledges it when it refers to the need to improve the “image of the birth registration
system” and “customer services” to attract people to get the births of their children
registered (Page 84). Information on how this is being done (if it is being done) and the
mechanisms for ensuring quality and efficiency of customer services should have figured in
the SPR.

6.1.5
Government needs to make provisions for those children whose births were not registered
and if registered, to issue birth certificates. Street migrants and displaced children who may
not have links or access to parents or guardians, also need an official document equivalent to
a birth certificate. The SPR does not provide much information on what government is
doing about these. Can a child register itself? The question is neither asked nor answered.

41

6.2   Preservation of identity

6.2.1.    The SPR fails to relate this right to the right of citizenship ( mentioned on the page previous
to this tiny chapter). Identity means nationality as much as name. The basic standards set out
in the CRC Implementation Handbook specifying nationality, name and family as the three
elements of identity, are perhaps not consulted. The concept of a child’s identity in relation
to race, culture, faith, language goes beyond the family or household frame, and is equally
susceptible to risk. In a polity increasingly pressured to ‘mainstream’ to a supposed national
character, children of a plural and diverse society deserve a more thoughtful report on the
security of their right to identity.

6.3   Freedom of expression

6.3.1
“The child’s right to information is sometimes determined by parents or teachers, which may
sometimes be misinterpreted as limiting their rights. However, such determination is
undertaken predominantly in the best interests of the child and should not be seen as
preventing free access to information or freedom of expression” (Page. .86).  In the absence
of any provision of platforms for airing their views and expressing their grievances, this
statement could be construed as denying children freedom of expression and the right to
know or to participation. The JJ Act of 2000 still denies the child in trouble the right to be
heard.

6.3.2
It is not clear what proportion of children the State party believes are benefited by the
existence of an institution such as the National Centre of Films for Children and Young
Persons (NCYP) – formerly known as the Children’s Film Society, or by children’s pages in
newspapers or children’s days on the radio. The SPR opens by saying India has 400 million
children. What freedom of expression does the average child enjoy in the villages and urban
habitations where the poor majority live, and where their children learn either confidence,
silence, anger or despair,  is important.  But what proportion of India’s children have access
to healthy entertainment provided by such institutions is a question that needs to be asked.

6.4   Freedom of conscience, thought and religion
6.4.1.     The SPR cites the Government’s commitment to “establishing a civilised, humane
and just civil order that does not discriminate on grounds of caste, religion, colour, race or
sex, ” and to upholding the concept of secularism. The reporting period has witnessed
several outbreaks of   civil strife and violence stemming from religious and caste hostility.
This places on the State a continuing responsibility to accord equal worth to all of India’s
people and to protect the national credo of ‘unity in diversity’ not by condoning that any
group in society should have to buy peace and toleration through subservience but that all
should enjoy these freedoms without fear. The children of those groups and communities
who perceive such freedoms are at risk should have first call on the Government’s attention.
The SPR has not spoken of anything but legal and provisions.

6.5   Freedom of association and peaceful assembly
6.5.1 The SPR speaks of two large organisations and a third smaller one, all with organised
programmes and activities. The information does not really address the right being reviewed.
The example of NGO initiatives does not reflect State action to realise this important CRC
provision. There is no mention of the older child in the workforce, although Indian aged 15
and above can unionise.

42
6.6   Protection of privacy

6.6.1
The SPR acknowledges that there is scope for improvement in medical and legal and
counseling provided to children who are victims of sexual abuse and exploitation.
Information on the areas that demand attention would have been useful. The SPR’s stand
that the legal system in India functions on the principle that it should foster rather than
invade family privacy when seeking to know the child’s wishes does not reflect respect for
the child’s right as a person and a citizen (see Page 89, para 33).

6.7
Access to appropriate information

6.7.1.   The SPR chapter begins by saying few children can access mass media, but then dwells
largely on mass media, with some reference to staged events. It could have had more to say
about extension education, the content of school and non-formal education, the attention
given to children by social development outreach activities of the government. Instead of
reporting that an international film festival received 178 entries from 29 countries, the SPR
might have devoted some space in a very brief chapter to assessing or at least estimating the
actual access most children can expect to have. While All India Radio has built up
commendable outreach, including to many of the poor, and broadcasts in 21 languages of
India, its programming for children is not its strong suit. Could this have been improved
upon? The SPR does not say. The Open School system, another channel for information
flow, is not mentioned. There is no reference in the chapter to the impact of information
outreach efforts.

6.8   The right not to be subjected to torture or other degrading treatment and
          punishment

6.8.1 This right merits half a page in the SPR. The Report claims that “there is no widespread
incidence of victimisation in the country.” Perhaps this is true, but on what information is
the claim based? What information does the State party have on the treatment of children in
bonded, forced or unchecked work situations ? Degrading treatment also includes the
routine humiliation of ‘out-groups’ such as Dalits; it is not mentioned. The brutalities
inflicted on children trapped in the sex trade are not mentioned. Domestic maltreatment is
not mentioned. The persistence of maiming of children for begging is not mentioned. What
protections does the State expect these kinds of children to be able to derive, much less
demand, from the “complaint procedures” and “remedies thereof” of which it speaks?

6.8.2. Press reports in newspapers as well as fact-finding by NGOs tell of children facing torture
and violence in the government’s custodial homes. (The case of 14-year-old Chenchu
Hansda arrested in 1999 who was sentenced to “imprisonment” for being “involved” in the
murder of the Australian missionary Graham Staines and his two sons, opened a Pandora’s
box regarding the arrest and detention of children).
**
  The fact is that there are a number of
children who continue to be arrested and kept in police custody or lodged in adult jails.

6.8.3. In March 2003, the country was shocked by news reports of children being arrested under
the new and extremely controversial anti-terrorism law -- the Prevention of Terrorism Act

**
Chenchu had been part of mob that had attacked the missionary. He was in police custody for three months as his parents were too poor
to pay for his bail. He was then sentenced to imprisonment and lodged in a jail. After a lot of protest from NGOs he was moved to a
Special Home for children for 14 years “imprisonment” so that he can emerge reformed at the end of this period

43
(POTA). According to reports
***
60 minor children were arrested under this Act in just one
State ( Jharkand.). Although no detailed information is available, arrests under POTA are
reportedly being made in other states too, with children caught in the dragnet. In view of the
State party’s firm declaration that children cannot be treated at par with adult transgressors
of the law, more information should be sought on the use of POTA, and the subsequent fate
of any children apprehended.

6.8.4.   Registration of each child taken to a police station should be made mandatory, including
time, date and reason for detention. Such detention must be subject to frequent mandatory
review by a magistrate.

6.8.5.
The State party should consider the following measures:

a.
Amendment of Sections 53 and 54 of the Code of Criminal Procedure so that medical
examination, including age verification, is mandatory at the time of detention and at regular
intervals.
b.
Amendment to the JJ Act so as to provide for complaints and prosecution mechanisms for
cases of custodial abuse or illegal detention.
c.
Amendments to the Code of Criminal Procedure Section 197, which Amendment to the JJ
Act so as to provide for complaints and prosecution mechanisms for cases of custodial
abuse or illegal detention.
d.
Amendments to the Code of Criminal Procedure Section 197, which requires at present
Government approval for prosecution of law enforcement officials when complaints of
custodial abuse or illegal detention are alleged.
e.
Amendment of Section 43 of the Cr. P. C. so that police cannot claim immunity for actions
while executing a warrant in cases of illegal detention or custodial abuse.
f.
Ratification of the Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, which it signed in 1997.
7. Family Environment and Alternate Care (arts. 5, 18 para 1-2, 9-11,25,27 para 4 and 39)
7. 1 Temporary Alternate Family Care and Other Non-Institutional Services (article 20)

7.1.1 A Scheme of Assistance to Voluntary Organization for Homes (Shishu Grah) for infants for
promoting in-country adoption was implemented by the Ministry of Social Justice and
Empowerment. A Unit under the scheme comprises 10 children in the age group of 0-6
years, and a maximum number of units per institution can be two. A non-recurring,
maintenance and administrative annual grant of Rs 4,81,950 (for 10 children) is provided
with the concerned agency contributing 10% of the cost. The Central Adoption Resource
Agency (CARA) has assigned Voluntary Coordinating Agencies (VCAs) to inspect Shishu
Grahs with a view to make their functioning effective.

7.1.2 Areas of concern:
7.1.2.a. The scheme has been granted to institutions that have no adoption programme.
Some of them are neither aware of the proper procedures nor of documentation
related to the determination of the child’s legal status as free for adoption,
placement and subsequent legalisation.
7.1.2.b. These indicate gaps in monitoring and evaluating the programme.

***
Outlook. March 24.2003 (The Devil on the Beat by Murali Krishnan and Amarnath Tewary)

44
7. 1.3 Sponsorship: There are a number of formal and informal sponsorship programmes in the
country that are administered by private individuals, Trusts, and other local and national
level NGOs. A wide number of family and school related services are rendered by a few
NGOs with a view to minimise the school drop out rate and to sustain the child in the
school, family and community. These include financial aid, counseling, personality
enrichment programmes, nutrition, hobby classes, coaching classes, recreation and sports.

7. 1.4 Areas of concern:
7.1.4.a. The number of those in need far outweighs the small number of beneficiaries.
7.1.4.b. There is no regulatory mechanism to monitor the misuse of the funds collected in
the name of sponsorship or to ensure effectiveness of the services.

7. 1.5 Recommendations:
7.1.5.a. Review of all child legislation by the Law Commission towards the content as well
as modalities and infrastructure for implementation.
7.1.5.b. Review of the National Policy for Children Act 1974, with an intention to
incorporate clear recommendations of the CRC and to develop a new policy for
vulnerable children.
7.1.5.c. Integration of various policies related to the child and evolution of a “holistic
model” with a focus on non-institutional services.
7.1.5.d. Measures should be taken to harmonize laws, policies and schemes with the CRC.
7.1.5.e. The process of having a non-institutional approach to childcare should be accepted
as the norm. The Foster Care scheme should be extended to other areas to cover
more children.

7.2 Adoption (art. 21)

7.2.1 There is to-date no uniform adoption law in India. Several bills that had been introduced for
enactment of adoption legislation have been unsuccessful. The sensitivities of minority
communities about their personal laws, which the Constitution defends, have to be taken
into account. But so too must the interests of children, notwithstanding the dictates of
different faiths.

7.2.2. Hindu parents wanting to adopt can do so under the Hindu Adoption and Maintenance Act,
1956 (HAMA). This Act is also applicable to Jains, Buddhists  and Sikhs. The personal laws
of the other religions -- Muslims, Zoroastrians (Parsis), and Jews -- do not allow for
adoption. If they wish to take a child into their family, they can do so under the Guardian
and Wards Act, 1890. Unlike the provisions of HAMA, this law does not provide the child
the same legal status as a biological child born in the family. Under the Muslim Law,
separation is not clearly defined which again causes problems in interpretation.The legal
position of the child is that of a ward and the adults, that of guardians. This is unfortunate
because there are so many persons belonging to these religions who want to adopt children
and are unable to do so. Consequently, all those young children who could have found a
home within the country, are put up for inter-country adoption.

7.2.3. Even as it exists for Hindus, the law has serious flaws. Under H.A.M.A, the only adoption
law applicable to Hindus, two children of the same sex cannot be adopted and the adopting
mother is not a joint petitioner but only a consenting party in the adoption. In allowing only
married men to adopt, it discriminates against married women. In fact, a Hindu woman
when married to a non-Hindu is no longer eligible to adopt, even if she has not changed her

45
religion. If a person changes his religion, he not only loses his right to adopt, but his own
child can be placed on adoption by the other spouse, with or without his consent.

7.2.4. The laws fail to be child-focussed in laying down who can and cannot be adopted and by
whom. A person with a son, grandson or great grandson is prohibited from adopting a boy.
An adoptive parent who has a daughter or has a resident grand-daughter cannot adopt a girl.
Such a clause may have been included to prevent discrimination against a child of the same
sex in case of the presence of a biological child. Anyone adopting a boy and wishing to
adopt another child is only allowed to adopt a girl, and vice versa. Why should the
government design the sex composition of adoptive families? In case of siblings who
have to be adopted by the same parents as per a Supreme Court Judgment, those belonging
to the same sex are rendered ineligible for adoption due to the contradiction between the
judgement and the law. This goes against the modern theories on adoption, which
emphasises that families with biological children have been found highly suitable for
adoption, especially in case of children with special needs.


7.2.5 Inter-country adoptions are carried out under the Guardians and Wards Act of 1890 and the
child leaves the country only as a “ward” to be adopted later in the receiving country.

7.2.6 The 1974 National Policy on Children has no special reference to adoption. In the absence
of a common adoption legislation, inter-country adoptions are governed by the Supreme
Court judgment of 1984 which provides the guidelines for adoption. In 1995, the Ministry of
Social Justice & Empowerment, Government of India, revised the guidelines to regulate
matters relating to adoption of Indian children. Hence, adoption of Indian children is
presently governed by the Supreme Court guidelines and the Government of India ‘Revised
Guidelines on Inter-Country Adoption Of Indian Children 1995’.

7.2.7 The Govt. of India has established a Central Adoption Resource Agency (CARA) in the
Ministry of Social Justice & Empowerment, to act as a clearing house of information in
regard to children available for adoption and to regulate, monitor and develop programme
for the rehabilitation of children through Adoption/Guardianship.

7.2.8 Problems and Lacunae:
a The National Policy for Children, 1974, needs review since it has to be more child-
oriented and need-based in order to be effective, and needs to include adoption.
b There are a number of contradictions in licensing policies of institutions.
c In the absence of a uniform adoption law, there is no legal protection available to
the adopted child and the child does not enjoy the same status and rights as a
natural born child (except under H.A.M.A.).
d The best interests of the child cannot be protected in the absence of a suitable
legislation.
e The Supreme Court judgments are used as the reference point for inter-country
adoptions, but they have the status of being only guidelines and not law.
f Promotion of in-country adoption should be the major goal as per the CRC and
inter-country adoption is to be considered only as the second-best option. But in
practice this does not always happen.
g The CRC recommends that the adoptions should be carried out only by authorized
agencies, but there is no mechanism to ensure and enforce that this happens and
there are still many cases of “private” adoptions. This may involve unethical
practices and also does not guarantee the child any legal security.
h There is no adequate support system or government schemes or programmes
available to the natural mothers who do not want to give her child to adoption but

46
due to a force of circumstances are compelled to take the decision. Adequate
counseling too is unavailable to help them with their situation.
i There is a lack of adequate networking between agencies at inter-state levels and
there is no forum for them to interact on common issues.
j According to the Convention, a child means every person below the age of 18 years.
In India, the census treats persons below the age of fourteen as children. There is no
uniform concept or consistency on who is a child, by law.
k There is a lack of coordination in dealing with children since several ministries are
involved with children.

7.2.9 Recommendations:

a. The Government must continue to work towards an enabling Common or Special
Adoption Law that will be applicable to all Indian citizens, irrespective of their
religion. This would be an enabling legislation and ensure the best interests of the
child. Until such a law gets enacted, a modification in the existing H.A.M.A. should
be sought which will address the exiting lacunae in the law.
b Until a common adoption law comes into effect, the government’s guidelines should
be made more enforceable.
c It is also essential that enquiries be conducted in an expeditious manner for
declaring the child destitute under the Juvenile Justice Act so that the child can be
suitably rehabilitated without undue delay.
d A set of “norms and criteria” must be developed to assess the suitability of a
placement with Indian or foreign parents, so that there is uniformity in practice
among agencies and no indiscriminate placement.
e The role and functions of the following agencies involved in adoption work must be
clearly defined and delineated to avoid ambiguities and misinterpretations.
e.a The Central Adoption Resource Agency (CARA)
e.b Placement Agencies
e.c Scrutiny agencies
e.d Voluntary Coordinating Agency (V.C.A) must be licensed for
adoption work. VCAs should actually be called A.C.A. (Adoption
Coordinating Agency) because the nomenclature “voluntary”
causes confusion.
f The major role and function of CARA should be to regulate inter-country adoptions
and facilitate domestic adoptions. All its functionaries must be clear about this role
and should not in any way take a contrary stand of promoting inter-country
adoptions over in-country adoption.
g The Govt. must undertake projects and programmes to promote in-country
adoption through its various media and also support NGOs in their efforts of
promotion of domestic adoptions.
h A regular annual meeting of all in country and inter country adoption agencies must
be called under the auspices of CARA so that there is a platform and an opportunity
available for discussion of common issues.
i All state Governments should implement licensing system from the State
Government for agencies involved in in-county adoption work just as there is a
license for inter-country adoption work from the central government. A set of
eligibility criteria has been laid down for adoption agencies by the government, all
state Governments must implement this policy.
j Agencies receiving funds from affiliated agencies abroad should ensure that such
assistance is not linked with an obligation to send a certain number of children for
foreign adoptions.

47
k A “birth certificate” as a form of identification, is the basic right of every child. The
adopted child must receive a birth certificate like any biologically born child.
l All adoption agencies must take a more holistic view of child welfare and evolve
preventive, community based non-institutional services for children and families “at
risk.”
m An orientation programme must be undertaken for all the functionaries of the
Juvenile Court, Welfare Boards, City Civil Courts, High Courts and District Courts
that deal with destitute children and adoption. A module must be developed to
address all the issues.

7.3 Violence/abuse/neglect/maltreatment (article 19)

7.3.1. Despite the Committee’s recommendations on this part, there still are obvious lacunae
within the existing law under which cases of sexual abuse are filed. The existing laws were
formed in the 19
th century and bear no relevance to today’s conditions.
a The emphasis lies on morality and modesty and disregards the trauma and loss of
the sexually abused victim.
b Oral sex is not included, child rape not validated, incest offences are not separately
addressed, and sections of rape and molestation ignore the male sex.
c In some cases of abuse it is almost impossible to find evidence of penetration
especially
when the child is below 12 years of age. By the very virtue of several such
cases being reported, such outdated laws need to be seriously reconsidered and
declared obsolete, and replaced with more clear-eyed legislation. .

7.3.2 Being a signatory to the CRC, India needs to review such outdated laws, as their relevance in
cases of sexual abuse reported today is questionable.

7.3.3 Recommendations:
a Child rape should be incorporated in subsection 376.
b Boys should be included in the existing law.
c Incest should be separately addressed.
d The term rape should also include a broader term like sexual offences.
e Monetary compensation should be a part of the punitive measures given by the
court along with imprisonment.
f Sensitized police and judicial personnel should deal with the child — the
atmosphereshould be child friendly and uninhibitive, including the dress code of the
police and judges.
g The child’s right to dignity and privacy needs to be addressed as per the CRC. The
child should be allowed to be in its own environment.
h The child should be allowed in camera trial.
i Strict confidentiality should be maintained.
j Trials should be held within six months of the complaint being filed.
k Child friendly phrases, i.e. in the language of the child should be enforced.
l No media coverage should be allowed.

7.3.4 Medical services coupled with counseling should be provided to ensure complete
psychological care.

7.3.5 While the CRC takes into account the 0-18 age-group the SPA report stresses most often on
the 0-3 group and at the outer limit the 0-5 age-group with respect to the issues of family
environment and alternate care, and for these groups, it talks largely about the ICDS and the

48
anganwadi programmes. No thought has been given to the need for family and alternate care
in the other age groups including the adolescent groups particularly the girls.

7.3.6 There are certain specific groups like those affected with HIV/AIDS and the children of
refugees, the internally displaced and leprosy patients who need a well-thought methodology
of alternative care that is totally missing in the document. There is an example of the
children affected with HIV/AIDS in Kerala who had problems in school because the
parents of their classmates removed their wards from the school. The government later
arranged for a teacher for the children at a location away from the school. Despite the steady
rise in HIV/AIDS cases, and the attendant problems for children of AIDS-affected families,
the SPR does not deal with the challenges emerging for provision of basic services, including
attention to such children’s right to both education and dignity.

7.3.7 If a proper family environment or alternative care are to be provided to every child, it is
necessary to have common laws governing all children across the country rather than having
different sections of the people being governed by different sections of the law.

7.3.8 Parental guidance plays a very important role in the family environment/alternative care that
is created for a child. There should be a detailed legal definition of parental responsibility,
duties and rights that have been very haphazardly explained in the present SPR. Rights of
parents do not mean overpowering control of the child and a situation where the child is
viewed as the property of the parents. Some NGOs raise the concern that when the
government defines parental responsibility, there is a possibility of using this authority to
unduly penalise parents. There should be safeguards to the handling of such situations.
There is also a need to spell out the responsibility of a child, particularly an adolescent,
towards the family. This is a tricky subject and needs a more detailed analysis than what the
SPR presents.

7.3.9
CRC Article 18 involves parental responsibility. But this has not been properly defined in the
laws governing the child and family relationships. Most of the Supreme Court judgments and
the present legislations treat the child as the property of the family and do not accord it an
individual identity. This is a new concept as far as Indian cultural practices are concerned
and needs to be understood and integrated into the legal system. When necessary, the State
must stand up for the child.

7.3.10
The SPR barely notes CRC Article 9 dealing with suppression by parents, Article 10 that
talks about family reunions and Article 11 dealing with illicit transfer and non-return. But
these are issues on controversies abound. A case in point is when there is trafficking in
Bangladeshi and Nepali children who are brought to India and arrested by Indian authorities,
and the Bangladesh and Nepal authorities refuse to recognize these children as their citizens.
Who protects the rights of these children?

7.3.11 CRC Article 27 which deals with the recovery of maintenance for children is again subject to
various laws determined by religion. This can lead to a gap in the society as the child stops
thinking of herself or himself  as a child first, and the identity is established on the basis of
religion.

7.3.12 Children deprived of their family environment deserve careful attention. How does the law
define ‘family?’ The CRC takes into consideration the joint family but in the case of rural
areas, a whole village is involved. [There is a saying, “It takes a village to raise a child.”] The
aspect of the law reconciling with this concept of the extended family is missing in the SPR.
The concept of environment has also not been spelt out properly. If the reference is to a

49
violence-free environment, the violence is not always physical but could also be verbal.
When a girl faces verbal taunts from the family and society, these are more hurtful than
physical violence. No provision has been made in the law for dealing with this and this has
to be taken into consideration. A child needs a protective, nurturing and loving environment
to feel cared for. A social and psychologically supportive system should be made available.

7.3.13 Whilst laws are in place to help children against abuse and neglect in urban areas, no such
services are available in the rural areas. Section 5 of this chapter deals almost in its entirety
with ICDS anganwadi workers, without examining the fairness of leaning so heavily on them
to provide such services. Apart from assuming capacity in addition to all the other work they
do, the SPR does not assess the competence ICDS workers might bring to the task of
parent-child counseling. This is overburdening of an already overloaded worker. Alternative
support systems need to be considered, like schoolteachers, primary health centre workers or
the “dais” (midwives) who enjoy the confidence of the community. Community involvement
needs to be built into the alternative care approach. But it is questionable whether any of
these is professionally equipped to handle the subtle aspects of counseling.

7.3.14 The SPR gives very little information about children who are in government care like
observation homes/remand homes. Their lives are miserable in these institutions and this
needs to be looked at seriously. There is also no mention on how to deal with institutions
that abuse children and how to accord protection to such children. The background papers
have outlined several points and can be revisited for specifications.

8. Basic Health and Welfare (arts. 6,18 para 3, 23,24,26,27 para 1-3)
8.1 Health and Health Services

8.1.1
The SPR acknowledges very wide variations in the success of programmes throughout the
country, especially in terms of IMR and MMR.  Information on the state specific strategies
and interventions, at least on the states that are at the two ends of the performance ladder
would have been useful in identifying the determining factors.  Kerala’s remarkable success
has been described (Page 146) but the performance of other states, especially the non-
performing ones, needs to be analysed and addressed. Of particular concern are the response
of the central government and the state governments in dealing with the cases of polio in
Uttar Pradesh and Bihar, which together recorded 35 per cent of the global cases of polio as
of end-December 2000.

8.1.2
There is high prevalence of malnutrition among children below three years of age, especially
in the rural areas and among disadvantaged groups, and is decreasing very slowly at the rate
of 0.8 per cent per year (Page 138-139). There is a slowdown in the decline of  IMR, and
indeed it has plateau-ed in the last few years (Page 149).  The child mortality rate in rural
areas is almost twice that of urban areas (Page 149).  There is much higher coverage for each
type of vaccine in urban imunisation services than in rural areas (Page 155). There is one
doctor for 1611 persons in rural areas (Page 140). This suggests the neglect of the rural
health sector. The National Population Policy (2000) mentions convergence of service
delivery at village levels and other measures that might help improve the situation (Page
176).  An analysis of other policies as well as of the resource allocation and plans of action
would have been useful.

50
8.1.3 If regulation of health services is an issue in the private sector, the quality is a major issue in
the public sector. Services must improve radically in order to ensure reductions of morbidity
and mortality, and to establish and sustain preventive and protective public health standards.
The answers lie in pro-active investment to upgrade and improve public health services and
State health care standards, rather than to legitimise the drift to private care as government
policy. An analysis of the present resource allocation for health at the central level and at the
state level is required.

8.1.4
A substantial portion of the health system lies outside the Government sector. About 65 per
cent of households go to private hospitals/clinics or doctors for treatment; only 29 per cent
normally used the public medical sector. Even among poor households, only 34 per cent
normally use the public medical sector (Page 144).  Privatization is increasingly being seen as
a solution for improving the quality of health services, particularly at the village level.  The
SPR does not comment on the regulatory framework that might be required to deal with the
increasing privatization of medical care. Also, what would be the strategy for ensuring a
uniform spread of quality services and addressing the neglect of the poorest, and most
disadvantaged among people and areas.

8.1.5
The majority of the rural population uses the facilities available under the non-modern
system of health care. It is not clear what the government is doing to regulate cross-medical
practice. (practitioners of traditional systems practicing modern medicine in violation of the
Medical Council laws), which is considered medical negligence.

8.1.6
The SPR states, rightly,  that while the provision of health services for the entire population
is the first imperative, the empowerment of women is essential if these services are to be
successfully accessed for children (Page 135). It does not acknowledge that the ‘fixed
location’ mindset governing health care seriously constrains outreach to the poor, including
to women.

8.1.7
The estimates of population with HIV/AIDS seem very low as compared with the
numbers/rates referred to by a number of international organizations. How was the
calculation done? This information could present a fuller picture of the situation. The
institutions and programmes set up to counter the problems related with HIV/AIDS pertain
to prevention through awareness raising, education and mobilization.  The issue of care and
stigmatization of children with HIV/AIDS is particularly critical.  The SPR recognises that
as more HIV infected persons develop full-blown AIDS there will be a need to develop
more hospice and community based care centres (Page 185).  What specific provisions have
been made for the care and support services for children in different circumstances (eg street
children, children whose parents have died due to AIDS and lacking support from the
extended family/community, etc)?

8.1.8
What is the coverage with the Baby Friendly Hospital Initiative (Page 189)? What are its
components? What has been the experience?

8.1.9
The water and sanitation situation seen in terms of absolute numbers of Indian households
and children is dismal (Page 197).  The SPR mentions that 99.1 per cent of all households
have access to a source of drinking water within 1,600 metres, safe drinking water is available
to 83 per cent households and 42 per cent households have a source of drinking water
within their premises. About 36.5 per cent of Indian households use toilet facilities and
among them, 72 per cent have the facility within their premises. As 21 per cent of all
communicable diseases in India are water related, what is the government doing to set and
ensure basic minimum standards for water? Any thoughts on the regulatory framework

51
would have been useful.  What is being done to address arsenic poisoning that has come to
light in West Bengal and Madhya Pradesh (Page 196)? More specific information was needed
on the groundwater situation as 39 per cent of households in India use drinking water from
hand pumps, 19 per cent use drinking water from wells and three per cent from surface
water (Pages. 197-198).

8.2
Children with Disabilities

8.2.1 There is no systematic, scientific and precise information available on the prevalence, degree
and kind of disability in general, and children in particular. Data is essential to understand
the magnitude of prevalence as well as the interventions (including the nature of
interventions) and resources required. The SPR acknowledges this fact and expected the
Census 2001 to fulfill the gap. The snail’s pace at which Census data becomes available for
planning use is a concern. It states that estimates indicate about 5 per cent of the population
as having some form of disability, while WHO takes 10 per cent as the ratio.  It would be
useful to know how the disabilities have been defined and identified in the Census. Also if
any effort has been made or is being made to identify the varying degrees of disabilities.

8.2.1
The legislation pertaining to people with disabilities – Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act (1995) does not clearly define
inclusion and access. The law when it was passed was considered a landmark, but now its
effectiveness and shortcomings need to be reviewed.  Mechanisms for the implementation
have been put in place but the SPR does not say anything on how active and effective these
mechanisms are.

8.2.2
The SPR says “There is a high prevalence of physical disability among the young as
compared to the older age-groups. Its suggests that most physical disabilities are genetic,
biological and even birth defects” (Page 204). The growing incidence of disability among
children in the younger age group is a matter of grave concern.  A roadmap with goals and
measures to achieve them towards addressing the issues of disability in rural areas, where it is
most prevalent, is required. Most of the institutions providing specialised services are located
in urban areas, and the shameful 5 per cent coverage by services remains largely urban.
Even voluntary effort is largely confined to the urban and semi-urban areas. What is being
done to ensure services of early detection and intervention, education, vocational training
and employment in rural areas?

8.2.3
The emphasis on full participation seems to be superficial.  Most interventions pertaining to
persons with disabilities are ‘special’ programmes or projects. Community based support,
counseling and psycho-social interventions (Training for parents and communities not to
hide their children, empower them to look after them), targeting of girls with disability and
children of disadvantaged groups (SC/ST, BC, Minorities, and Migrants) is very sporadic.
Community-based rehabilitation (CBR) and inclusion of children with disabilities into the
mainstream education system has been considered in the government policies but is more an
exception rather than the norm (Pages 208-209).  What is the government doing in terms of
investment in infrastructure and trained teachers?

8.2.4
Have the governments of the states and union territories incorporated the special
component/module on disability in the syllabus for all regular training programmes for
health workers at the field level (Page 208)?

8.2.5
What is the status of the model building by laws, containing provisions for barrier free built
environment formulated by the Ministry of Urban Affairs and Employment and had been

52
circulated along with guidelines and space standards to all the state governments and union
territories (Page 208)?

8.2.6
Care of children with severe disabilities is a highly demanding investment, but the 95 per
cent un-met need must be addressed. Disability is due to several causes and requires specific
preventive and rehabilitative interventions. Trained manpower and resources are essential.
Without information and capacity building, to make enabling measures and programmes
really operational, the list of good intentions will lead nowhere.

8.3
Social Security and Childcare Services and Facilities

8.3.1
There is no separate provision for social security for children in India.  It is deemed implicit
in the series of public measures against economic and social hardships caused by stoppage or
substantial reduction of earnings, resulting from sickness, maternity, employment injury,
unemployment, invalidity, old age and death subsidies. It is common knowledge that there is
no system for ensuring universal access to these measures. There are schemes and
programmes but these are localized.

8.3.2
The SPR speaks of the proposed National Charter for Children with the aim of ensuring that
no child remains illiterate, hungry or lacks medical facilities. But other than the moral
imperative (as is the case with the Directive Principles in the Constitution), what would
make it binding upon the central and state governments?

8.3.3
The main issue is how does one ensure social security and welfare mechanisms in the
unorganized sector and to reach children in the remote parts of the country. There are
various social security laws but they apply to workers belonging to the organized sector and
their children benefit indirectly (so it is assumed). What happens to those communities,
families, households, workers who do not fit into a particular category?

8.3.4
Children with disabilities have been made eligible for social security for their entire life,
irrespective of the number of children in the family (Page 221). But what sort of social
security have they been guaranteed? How do they access it? Not much is known about the
provisions that have been made. The case is similar with child pension and minimum
orphan pension (Page 221).

8.3.5
The SPR fails to provide any assessment of the performance records of a range of
development interventions, or to report on their outreach, provision of access, lack of bias
and quality. These include the Public Distribution System, the Integrated Child
Development Services, mid-day meal schemes, Sarva Shiksha Abhiyan, Antyodaya Anna
Yojana (food plan for the least-served), crèches/day centers for children of working/ailing
mothers, the ‘balwadi’ nutrition programme, early childhood education, Balika Samriddhi
Yojana and educational concessions for children belonging to various categorie. How
effective are these measures through which the government seeks to ensure social security
for children.

8.4
Standard of Living

8.4.1 The CRC Committee in its concluding observations expressed concern at the high
percentage of children living in inadequate housing, including slums, and their inadequate
nutrition, and access to safe drinking water and sanitation. The Committee was concerned at
the negative impact on families and the rights of children due to structural adjustment
projects.  The SPR makes no mention of this and discusses a range of policies and public

53
statements that are very general and do not relate specifically with children.  Indeed, children
are hardly referred to in this section.

8.4.2
Children continue to endure unsafe and insecure living conditions. They and their families
continue to be forcibly displaced and evicted from their homes and habitats, without
adequate and appropriate rehabilitation. This displacement continues in the name of
development, conservation and environmental improvement. Most of the displaced belong
to the already marginalised groups such as the dalits and the tribals.  Increasing number of
children are living and working on the streets.  Urban evictions disrupt schooling of children,
especially as there are no schools in the areas to which people are forcibly moved. Schooling
of girls is often stopped because they cannot safely travel long distances to their old schools.
Children suffer from housing distress the most. India’s housing deficit is 8.7 million units of
which the Economically Weaker Section housing deficit is 3.79 million units. There has
been a regression of the right to adequate housing, partly as a result of pressure to privatise
civic services like water, electricity, sanitation and land development.

8.4.3
The data on the number of homeless, including children, all over India and the number of
those inadequately housed, is inadequate.  The SPR could have looked into this area.

9. Education, Leisure and Cultural Activities (arts. 28,29,31)
9.1 Data and statistics are abundant. But there is also a tendency for mere enumeration. There
has been no prioritising of issues. A glaring omission is the lack of urban/rural data.
Breakdown of figures pertaining to the education of SC/STs has not been provided. The
information starts from primary right through to university and includes even computer
education but everything has been clubbed together and there has been no selectivity with
regard to the data.

9.2 There is no selective information on enrolment. It seems to be target-oriented and there is
no proper information with regard to dropouts. In the rural areas, this issue is not being
suitably addressed and that is why it was even more important to provide this information.
The case study boxes provide sufficiently representational information on educational
schemes in the country. However, there is little discussion on the impact that the schemes
have had. There is a mention of “Operation Blackboard” but there is no information on its
impact.

9.3 There are details on “ Sarva Shiksha Abhiyan,” the flagship project of the Central
Government but there has been no assessment on the impact of this programme.

9.4 This is the view that a birth certificate should be produced at the time of enrolment. Those
who favour this feel it would result in sensitising people about the importance of the birth
certificate. It was also felt that the inclusion of the birth certificate would act as a deterrent to
admitting children below the age of five years to school. Sometimes there are enforced
enrolments of under-age children with the sole purpose of enhancing enrolment figures.
Proxy enrolments for the purpose of budget allocations could also be curtailed by insisting
on birth certificates. These names sometimes continue on the school registers much after the
children had dropped out of school. The other opinion was that might result in children not
been admitted to school.

54
9.5 The SPR does not sufficiently address the issue of language. Children are sometimes taught
in schools in languages other than their mother tongue and this causes a form of cultural
alienation that has not been acknowledged in the SPR. Some NGO assessments have drawn
attention to the many pedagogic methods like “joyful learning” that have been mentioned
with regard to the training of teachers but point out that very little emphasis has been given
to the social and cultural training of these teachers who very often are from a different
community background than the children they teach.

9.6 Some NGO assessments of the figures shown with regard to the enrolment of SC/ST and
BC children state that these are fabricated, and query the reasons. The truth of the matter is
revealed in the very high dropout figures. There is a need to ensure that parents of the
labouring classes get adequate income so that their children can go to school. Till such time
as this is implemented, adequate compensation must be ensured for them to make up for the
income that they lose from sending their children to school.[Page 292 …]

9.7 The dual role of the teacher has been delineated in the PROBE Report (Public Report on
Basic Education in India 1998).  The report reveals how teachers are used for other jobs
than teaching. Teachers are not only expected to teach but are also assigned tasks like census
enumeration, election monitoring, government surveys etc. These non-classroom duties
divert their energies and time from their primary function of teaching.

9.8. There is a certain amount of honesty in the SPR’s information with regard to budgetary
allocations and their inadequacies. But no remedial measures have been suggested. The SPR
at times sounds like the voice of a department addressing higher decision-making levels of
the Government.

9.9 Interventions

9.9.1
The SPR mentions a scheme to provide residential schools for SC girls in low-literacy level
districts. What is not mentioned is that this scheme (Kasturba Gandhi Schools) was meant to
reach out to SC/ST and BC girls in low-literacy districts. Rs. 2,500 million was allocated
under this scheme in 1996 [Para 206 of Page 292]. The report does not mention the amount
nor the fact that not a single school has come up under this scheme and that in the last six
years there has been a tussle between the Ministries of Social Justice and of Education to
have control of this amount. This is how schemes are introduced but the budgets are
prevented from reaching the group that they were created for. In the case of this scheme,
every year a sum of Rs. 100 million is being transferred to some body ostensibly for the
purpose of implementing this scheme but not one school has come up so far.

9.9.2
The Government should provide for teaching and learning in the languages not listed in
Schedule 8. These languages are spoken by more people than some of the languages listed in
scheduled like Sanskrit or Sindhi. Some of the tribal languages like Santhali, Gondi etc are
not mentioned in this Schedule. There should not be a practice of including only the
scheduled languages but a conscious effort to ensure that every child has the right to learn in
her or his own native tongue. There are enough studies available in indigenous and other
cultures across the world over to show that children learn best in their mother tongue to
start with, and reject any one other language that is introduced before the age of two. This
has yet to be accepted in India. Until it is, many children will remain disadvantaged.

9.9.3
It is not easy for the poor to get birth certificates. To deny a child school admission on this
basis is a violation of its right to learn. The poor have problems with regard to knowing the
exact ages of their children because of place of birth. It is difficult even for urban workers to

55
get birth certificates. The recorded age factor is something that will correct itself over a
period of time. The teacher can be empowered to give an estimated age. Insistence on a
birth certificate for school admissions is not the proper way to apply a remedial measure.
Over a period of time, birth certificates can be progressively insisted upon. (In Bangalore,
the help of NGOs was enlisted to request the Director of Public Instruction to permit
children’s admission into schools by enlisting the help of school teachers to give an estimate
of the children’s age.

9.9.4
The Compulsory Education Scheme of 1994 that makes parents who do not send their
children to school punishable under a fine should be withdrawn. However, the 86
th
Constitutional Amendment installs a ‘parental duty’ provision in the Constitution, which
elevates the punitive proviso still further. Punishment for child labour should be meted out
to those who employ these children and pay them so little and also to those who did not give
their families work, or land for sustenance.

9.9.5
There is a mistake in page 296. It talks about providing stipends to those other than
“Vimukta Jati” (modern Hindi equivalent of de-notified tribes). This makes no sense. Para
216 on the same page gives the impression that all children of backward classes are being
given scholarships if the parental income is below a certain figure. This is not true, and the
amount released is a token amount.

9.9.6
There is a lot of data that is dubious. Teachers inflate enrolment information to get
appointed and draw their salaries. Often they do not reveal the dropout figures and pass
children without exams so as not to lose the enrolled children. Most of the time there is 75%
absenteeism whereas the minimum attendance that is permitted is 75%. All these facts have
to be included as the problems in the system. There is no mention in the SPR of the
government’s proposal for alternative schooling. A number of NGOs who have worked in
this field are very much opposed to this idea. The SPR has not pointed this out. There are
pluses and minuses to this approach but there is no discussion on the Education Guarantee
Schemes. There were attempts made in Madhya Pradesh, Andhra Pradesh etc but there is no
mention of these in the report. Despite the 100 pages, there are a lot of lacunae with regard
to education.

9.9.7
The report has mentioned non-formal education but not spelt out the method of regulating
this form of schooling. It is very discriminatory to the girl child because after taking charge
of sharing in the domestic chores, the girl is again asked to imbibe “culturally appropriate”
knowledge. There has to be a bridging between the formal and non-formal methods of
education. There is a National Open School System and it can be used in instances where no
other form of learning is available.

9.9.8
On page 300, paragraphs 235 and 236 mention children of migrant labourers and the
alternate schooling that is made available for them. The Government could instead consider
providing hostel facilities and supports to let them be allowed to continue in the same
schools even after their parents move on account of the nature of their work. The point at
issue is how far the authorities or the State regards such children as worthy of special
attention, and has been prepared to invest in assisting them.

9.9.9
A single sentence refers to coaching classes. There is a need to further elaborate on special
and compensatory supports. Also the word “deficiency” that is used here should be replaced
by “compensating for certain disadvantages”. In the Amendment recommended by the
Constitution Commission with regard to SC/ST girls, the cut-off age group should read as
18 years.

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10. Special Protection Measures (arts. 22,38,39,40, 37(b)-(d), 32-36)
10.1   Children in Situations of Emergency

10.1.1 Children at risk in Kashmir, north east, in riots in Gujarat and in the two big
natural disasters –Orissa Cyclone and the Gujarat earthquake.

There is lack of comprehensive disaster management focussed on children .
An estimated 3.3 million children were been affected by the ‘super cyclone’ that hit the
coastal districts of Orissa on October 29, 1999. But for five days after the cyclone, no
special attention was focussed on the needs of children. There was very little
information on where the children were, where they were going or being taken. Even
today, the number of children housed in various orphanages remains an estimate. There
have been reports of trafficking of children for prostitution as well as labour. India is
still lacking working towards a comprehensive disaster mitigation policy. That children
need to be addressed specifically in such a policy has been well established across the
world. The findings support several recommendations for the care of children affected
by disasters. The best interest of the child must be the guiding principle in any relief and
rehabilitation efforts. The experience of Orissa clearly illustrates that community-based
rehabilitation is a much better option for children than institutional rehabilitation.
However proper monitoring and follow-up is essential without which experiences post
cyclones has shown that children’s rights are violated. The study also emphasises that
this cannot be the only approach and the state has to make provisions for institutional
care for children who need it.
·

10.1.2 Refugee Children
10.1.2.1 Seven pages are devoted to refugee children (pages 331-339), and less than two
pages to children in armed conflicts, including social re-integration and
psychological recovery. The points raised at serial numbers 11-14 by the Committee
relate to refugee children, asylum seeking children and statelessness. None of these
points have been answered.

10.1.2.2 The SPR stresses that while India has not ratified the UN Conventions/Protocol on
refugees nor formulated a domestic legislation for refugees or refugee children, its
treatment of refugees is of a high standard. It goes into detail on how the Tibetan,
Kashmiri, Sri Lankan Tamil etc. refugees have been helped, rehabilitated, and so
forth. There is no depth in the presentation. It only talks of the state agencies’
achievements, but does not highlight the problems. How can a single Act, namely
the Foreigners’ Act 1946 effectively look after all the emerging problems of
refugees, both adult and children?

10.1.2.3 What are the problems that child refugees, child asylum seekers and stateless
children are facing? Where do we get a glimpse into this?

10.1.2.4 To adopt comprehensive legislation for adequate protection of refugee and asylum-
seeking children.

·
The Impact of the Orissa Super-Cyclone on Children, (Enakshi Ganguly Thukral) undertaken for Christian Aid and presented at an
International  Conference on Disaster Mitigation and Preparedness on October 19, 2000 in Bhubaneswar, Orissa.

57
10.1.2.5 Ratification, of the 1951 Convention relating to the status of refugees and its 1967
protocol.
10.1.2.6 Ratification, of the 1954 Convention relating to the Status of Stateless persons
10.1.2.7 Ratification, of the 1961 Convention on the Reduction of Statelessness
10.1.2.8 Amendment (repeal) of clause 19 of the Protection of Human Rights Act to allow
enquiries into alleged abuses committed by members of the security forces to be
conducted by the NHRC.
10.1.2.9 As recommended by the Human Rights Committee, the CRC Committee
recommends the abolition of the requirement of governmental permission for
criminal prosecution or civil proceedings against members of the security forces.
10.1.2.10 The Report does not give any information about human rights abuses committed /
or alleged to have been committed by security personnel.
10.1.2.11 Also, the difference between “situation of armed conflict” and “cross-border and
internal terrorism” seems to be very marginal.

10.1.3 Children in Armed conflicts (Article 38), Including Physical and Psychological
Recovery  and Reintegration (Article 39)
Kashmir, North East, Gujarat.

10.1.4 Children in Armed Conflict

10.1.4.1 Children continue to be at risk and to suffer harm in many parts of the country where
armed conflict, whether recognized as such or regarded as law and order problems, is
endemic. NGO reports say that children are often targeted in these situations. The
protective and preventive role of the State is inadequate.

10.1.4.2 The SPR submission on this issue is seriously deficient in both information and analysis.
There are no details of how problems were sought to be addressed, and how effective these
measures were in areas where conflict or upheaval are recent and relevant to the reporting
period. The information on Punjab refers to a period and situation that ended before the
reporting period.

10.1.4.3 The Juvenile Justice Act 2000, in Section 2(d)(ix) provides that ‘children in need of care and
protection’ include any child who is ‘a victim of any armed conflict, civil commotion or
natural calamity.’ The SPR does not indicate how the Act is being employed to help such
children.

10.1.4.4 NGOs who reviewed the effects of armed conflict on children at a 2002 national workshop
on the challenge issued a united call for preventive and protective action. This Citizens’
Report endorses their declaration and appeal:

a That all governments in the South Asia Region fully ratify, implement and
accept all international standards set by treaties, protocols and all other
agreements relating to children in armed conflict;

b That the Government of India and all parties to any conflict, state and non-
state, fully respect the Charter of the United Nations, the Universal
Declaration on Human Rights, the Convention on the Rights of the Child
and all international standards of human rights and humanitarian law;

58
c That the Government of India immediately ratify the Additional Protocols
to the Geneva Conventions and revise the Geneva Convention Act of 1960
to reflect this ratification;

d That the Government of India immediately ratify, and adhere in letter and
spirit to, the Optional Protocol to the Convention on the Rights of the
Child on the involvement of children in armed conflict, insure its
application in every situation of armed conflict and enforce it as binding on
all parties to the conflict;

e That the Government of India ratify the Convention on Refugee and its
Additional Protocol and ensure full protection of refugees and displaced
persons due to armed conflicts;

f That the Government to bring out a National Policy to address the special
needs of the children in areas of armed conflicts

g That the Government of India to ratify the Rome Treaty establishing an
International Criminal Court and bring all military and para-military
personnel and security officials responsible for children’s rights violations,
particularly acts of sexual violence and abuse, of children under the law of
the land;

h That the Government of India undertake the immediate ratification of and
adherence in letter and spirit to Convention 182 of the International Labour
Organisation;

i That all non-state parties to conflict adhere to the spirit and provisions of
the Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict, and the Geneva Conventions;

j That the Government of India repeal the Armed Forces (Special Powers)
Act 1958, and the Prevention of Terrorism Ordinance 2001;

k That the Government of India and all State governments adhere to the
directions of the Supreme Court regarding arrest and detention;

l That non-state parties to conflict adhere to the spirit and provisions of
Convention 182 of the International Labour Organisation;

m That the Government of India, inter-governmental agencies, corporate
entities and other non-state parties respect traditional values and rights to
peace and desist from such activities which compromise the survival,
welfare and rights of children;

n That there be close monitoring by international humanitarian and human
rights agencies in all areas engaged in or under dispute in conditions clearly
susceptible to or presently involving armed conflict;

o That a total ban be enforced on the production, sale, stockpiling, transfer
and use of landmines and anti-personnel mines in India and action be taken
for the speedy rehabilitation and restoration of lands destroyed by their use;

59

p That immediate effective action be taken by the Government of India,
neighboring country governments, governments of producer countries,
cooperation of international agencies and non-state actors for non-
proliferation of small arms;

q That the Government of India and Pakistan abandon and reject the option
of weapons of mass destruction including nuclear weapons and to ensure
their destruction;

r That the Government of India, inter-governmental agencies, non-
government organisations and other agencies give priority to immediate,
adequate and appropriate measures for the prevention, treatment, recovery,
rehabilitation and reintegration of all children without prejudice of affected
by all forms of armed conflict, with special attention to those actively
involved in combat;

s That the Government, and inter-government agencies, non-government
agencies ensure comprehensive programmes of prevention, protection,
economic and social support and rehabilitation of girls and women affected
by armed conflict, in particular single headed households;

t That the Government of India, inter-governmental agencies, non-
government organisations and other agencies likewise prioritise the
development of policies and strategies to be implemented within a
reasonable time frame, to ensure the physical, psychological and cultural
healing of children and their communities displayed by armed conflict;

u That non-governmental organisations to enhance their efforts to address
the needs of children affected by armed conflicts and other conflict
situations, as this issue has been a neglected one
¨
.

10.2 Children Involved with the system of administration of juvenile justice

10.2.1 Administration of Juvenile Justice (art. 40)

10.2.1.1 The Government of India had also initiated consultations with a few groups.
However, the suddenness with which the Bill was tabled and passed by the
Parliament has led a lot of criticism from NGOs and concerned citizens. The law
that was passed did not reflect the suggestions emanating from the ongoing
consultations. In some ways 2000 Act has created more problems than it has solved.

¨
Shillong Declaration from ‘Broken Promises’ Report of the First national Workshop on Children in Armed Conflict, January 2002,
Shillong. The Workshop made special reference to international standards and rules such as, inter alia, the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), United Nations Guidelines for the Prevention of Juvenile
Delinquency (The Riyadh Guidelines), United Nations Rules for the Protection of Juveniles Deprived of their Liberty, UN Minimum
Rules, United Nations Standard minimum Rules for Non-custodial Measures (The Tokyo Rules) and the Cape Town Principles and Best
Practice on the Prevention of Recruitment of Children into the Armed Forces and Demobilisation and Social Reintegration of Child
Soldiers in Africa.

60
10.2.1.2 Some lacunae in the juvenile justice legislation are:

a The 2000 Act explicitly does not state the date or point in time with
reference to which a person’s juvenility is to be decided. This lacuna
has resulted in the Supreme Court deciding this issue in a manner
that is extremely prejudicial to a large number of juveniles as it
denies them the benefits of the Act. In holding thus, the Supreme
Court blamed the legislators for leaving such an ambiguity in the Act.
In accordance with legal and welfarist principles, the new draft advocates
taking the date of offence as the relevant date. Moreover, even though the
2000 Act provided for compulsory bail in almost all cases, juveniles
continued to languish in Observation Homes because of a fixation with
conventional forms of bail.

b The treatment of children in the juvenile justice system continues to be
primarily custodial in nature  and the law treats both categories of children
by prescribing custodial care as the only option pending disposal  and one
of the options post adjudication. There is therefore a need for alternative
methods of dealing with juveniles at the bail and sentencing stage. With
regard to children in need of care and protection, there is a need to
strengthen the non-institutional methods of rehabilitation, and to provide
for minimum standards in and qualifications for the management of child-
care facilities and the implementing functionaries.

10.2.1.3 In spite of claims to the contrary, there  continues to be gaps between international
standards and the law. For e.g two crucial concepts which underpin the Beijing rules
that have been ignored by the law are: Concept of Diversion (a concept critical to
the non-stigmatisation needing the minimization of the contact of children with the
criminal justice system. The Act of 2000 does not permit formal diversion of police)
and the Concept of detention as a serious punishment (to be imposed only as a
measure of last resort and for the shortest period of time does not compared to the
mammoth numbers of children within the jurisdiction of the system, these numbers
within the juvenile justice institutions seem to represent a manageable face of the
entire problem

10.2.1.4 As for children in conflict with the law, once again we have no figures to indicate
the actual numbers that could be affected right from the point of police harassment,
extortion and illegal detention.

10.2.1.5 A quick analysis of the socio-economic background of the so-called offender shows
that it is usually the child from a lower class background who is entrapped by
juvenile justice procedures and institutions.

10.2.1.6 Under Section 82 of the Indian Penal Code the age of criminal responsibility is
seven years. Therefore no child under seven years of age can be treated as a child in
conflict with law. In the case of children in the age group of 7-12 years, it is
necessary to determine whether the child is of sufficient maturity to judge the nature
of consequences of the offence. Despite this stipulation, children under seven are
incarcerated as children in conflict with law.

10.2.1.7 Adoption is not recognised by the personal laws of either Christians or Muslims,
whereas the JJ Act 2000 makes no such exception. It is interesting to note that

61
Buddhists, Jains and Sikhs are covered under the word 'Hindu' for the purposes of
the Act. Muslims, Christians, Parsis and Jews are specifically excluded. Further s.5 of
the Hindu Adoption and Maintenance Act 1956 says adoptions made in
contravention of that Act "shall be void."

10.3 Children in Situations of Exploitation, including Physical and Psychological Recovery
and Social Integration

10.3.1 Child Labour
10.3.1.1 India continues to have the largest number of child labour in the world.  While, in
the past, arguments grounded in economics and family hardship have been used to
justify child labour, there is increasing acceptance of the reality that child labour
depresses adult wage levels, perpetuates survival modes of production, outdates
technology and offsets long-term social, human and economic development.
Despite changes in societal attitudes in the recent years and government's efforts to
develop policies and implement action to eliminate child labour, only a small
fraction of children in the workplace have benefited and young children continue to
be placed in work situations instead of in school.

a Macro economic processes and structural adjustment have led to increasing
impoverishment at the household levels, combined with the failure of the
public school system to provide free and quality education to all children
and the state's failure to address the root causes of child labour have all
contributed to this situation. There is an urgent need for reviewing the
state's understanding, definition and policy of child labour if indeed it is
interested in the 'best interests of the child', as enshrined in the Convention
on the Rights of the Child (CRC), which India ratified 11 years ago.

b The observations made by the Committee continue to be valid today. The
Child Labour Act has not been reviewed and a large number of children
continue to be employed within their families in household enterprises,
agriculture, training centres etc. India has not removed its declaration of
Article 32. The SPR says the Government is in the process of ratifying the
ILO Convention 182 and of specifying the minimum ages for admission to
employment and work. No further details are available.

c The SPR is silent on the quintessential problem of defining child labour.
The Government Report ( Pages 366-384) starts off by making a distinction
between child work and child labour, the former seen as part of children’s
socialization in India whereas the latter is an exploitative practice. This
weakness is seen in its draft National Policy and Charter for Children,2001
and the National Plan of Action under formulation.

d The government continues to make a distinction between the hazardous an
non-hazardous occupations. Concern among activists over this distinction
is that it is fallacious and misleading when referred to the labour/work done
by children. The ILO too has categorised some forms as the worst forms of
labour. This is based on the nature of the occupation per se and not on its
impact on children. Law and National Policies only recognise and prohibit
certain select “hazardous” occupations and processes which are only six

62
percent
6 the total child labour. For example, bangle-making and firecracker
making are hazardous per se, since they involve processes and activities that
could cause harm and injury to all workers. However, cultivation or
household work is not perceived as hazardous for anyone. With over 80%
of child labour in agriculture and allied activities, the Indian problem is
predominantly an agrarian phenomenon, even though many children are
also employed in the domestic, hotel and some other industries. As a result,
a very large number of working children in the “non-hazardous
occupations” are without legal protection or social programming that could
ensure them basic rights and protections. What is being missed out here is
the understanding that any work done by a child that erodes or impinges on
the rights of the child as enshrined in the CRC as well in the Constitution
should be considered hazardous for the child and hence unacceptable

e Defining child labour is extremely crucial for correctly estimating the
number and character of the problem, as well as for designing and
implementing comprehensive and effective strategies to ensure the rights of
all children. But available statistics vary wildly, owing to differences among
and within agencies in terms of perception, understanding and definitions
of child labour. In the absence of a comprehensive and legal definition
there continues to be lack of recognition by parents, data collectors and
framers of the Census and the National Sample Surveys (NSS), of some
activities by children as ‘work’ (such as assistance in agriculture work, cattle
rearing, household chores, care of younger siblings) contribute to the
disparities and underestimation in government figures.

10.3.1.2 Official data, on the one hand, suggest a decline in the number of children working.
But on the other, they also suggest that the economic and social conditions that
generate child labour and the desperation for survival have worsened in the last
decade. The condition of sheer lack of productive income and jobs is in complete
contradiction with the condition “necessary” to ensure decline in child labour. It is
possible therefore that the broad decline in child labourers as reflected in the NSS
figures is concealing an intensification of economic exploitation of children, which
is not reflected in the official data.

10.3.1.3 Specific notice should have been taken of the three-fold exploitation -- of age,
economic status and caste -- suffered by Dalit children in various kinds of hard and
demeaning labour. Dalit children constitute more than 80 per cent of children
toiling in the carpet-making, match and fireworks industries. Their out-of-
school/denied school and dropout levels are much higher than those of other poor
children. While caste/dalit organisations can be blamed for failing to be child-
focussed in their wider quest for liberation, along with most State programmes for
Scheduled Castes, the State must explain why it could not have been more pro-
active in targeting dalit children as a priority concern. In the context of labour, this
could have been a special effort to offer them quality schooling. The laws exist;
what about the implementation ?

10.3.1.4 Interventions in the field by NGOs have adequately proved the link between
education and child labour. However, the SPR does not examine the link between

6
Chaudhry, D.P: 1996: A Dynamic Profile of Child Labour in India, ILO, New Delhi.

63
the provision of free and compulsory education. How can children between the age
of 6-14 years be at formal school as has been guaranteed by the Constitutional
Amendment and also continue to be at work in occupations and processes that a re
non-hazardous? Can this remain as it is when now parents are made legally
responsible to send all children to school on pain of being punished? These linkages
are nowhere visible in the SPR.

10.3.1.5 The problem is compounded because there continues be varying perceptions on
child labour. The first group feels education is a fundamental right of every child
and any child out of school should be treated as a working child. The second view
contends that the problem is too immense and elimination of child labour should be
viewed as a long-term goal, where the emphasis should be on a ban on children
working in hazardous occupations and regulate their working in the non-hazardous.
The third school, in total contrast to the first two, advocates that it should be left to
the children to decide whether or not they want to go to school. The labour officers
in the state of Andhra Pradesh
*

10.3.2 Child Trafficking

10.3.2.1 Trafficking of children remains one of the worst forms of human rights abuses and
intolerable forms of contemporary slavery. Children are bought and sold  within the country
and across borders for  a number of  purposes such as :

a Sexual exploitation -- forced prostitution; socially and religiously sanctified
forms of prostitution; sex tourism and pornography.
b Illegal activities – begging; organ trade; drug peddling and smuggling.
c Labour -- bonded labour; domestic work; agricultural labour; construction
work; carpet industry, garment industry, fish/shrimp export as well as other
sites of work in the formal and informal economy.
d Entertainment and sports
e For and through adoption
f For and through marriage
g Newspaper reports also suggest young girls playing surrogate mothers for
money given to their parents in turn.

10.3.2.2 India is one of the largest transit and destination points within South Asia. It is both a
supplier as well as a ‘consumer’. Thousands of children are trafficked daily not just across
borders but also within the country – from one town to another, one district to another and
one state to another. The routes keep changing and therefore this calls for regular vigilance
by the authorities in both source areas and destination areas. However, this is not possible in
the absence of any documentation of the magnitude of the problem and the routes

10.3.2.3 The major problem confronted with respect to any action to tackle trafficking is the limited
understanding on this issue and the lack of adequate data.

10.3.2.4 The government’s understanding as well as of public in general continues to treat
“trafficking” synonymously with prostitution and sexual exploitation. The laws, policies and
programmes too continue to reflect this limited understanding.

*
Cited in the Convention on the Rights of the Child-Andhra Pradesh State Report

64
10.3.2.5 The only law on “trafficking” is the  Immoral Traffic Prevention Act (ITPA) does not define
the term trafficking and limits itself to addressing prostitution and sexual exploitation,
treating the victim as an offender and therefore fails to provide necessary protection to the
victims. This limited understanding is reflected in the Government’s National Plan of Action
to Combat Trafficking and Commercial Sexual Exploitation and the rescue and
rehabilitation programmes being undertaken such as the ‘Swadhar’ Programme, the ‘Jabali’
scheme in Madhya Pradesh, the scheme for rehabilitation of Devadasis in Karnataka are all
through NGOs which are limited to victims of prostitution. The lack of and/or inadequacy
of crisis intervention facilities, shelter homes, drop-in centres at railway stations and bus
stands, services of trained psychiatrists and medical personnel, free legal aid and assistance
for victims worsen the situation. Even the requirement of establishment of Child Welfare
Committees and Juvenile Justice Boards in every district as laid down in the Juvenile Justice
law remains unimplemented.

10.3.2.6 There is an urgent need for a comprehensive law to deal with all forms of child trafficking
based on a holistic understanding of the phenomenon. The Campaign Against Child
Trafficking,  a national campaign launched in 2000 to combat child trafficking has defined
trafficking as  “…the recruitment, transportation, transfer, harbouring or receipt of persons
below the age of 18 years, within or across borders, legally or illegally, by threat or the use of
force or other forms of coercion, of abduction, of deception, of the abuse of power or of
position of vulnerability or, of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, with the intention or knowledge
that it is likely to cause or lead to exploitation.” It is encouraging to find that the Goa Child
Rights Act, 2003  has adopted this definition.

10.3.2.7 India is weak on preventive measures. Often prevention is implies community awareness and
sensitisation of government officials, judiciary, police, media etc. However, such sensitisation
programmes are not institutionalised and therefore left to discretion of the authorities.
Moreover, There are other aspects to prevention such addressing the root causes of child
trafficking, globalisation and its impact on people, homelessness, lack of education, forced
migration, unemployment etc.

10.3.2.8 What is required most urgently is a child-rights approach to the problem. Child trafficking
can be checked if children are ensured their other basic rights such as the right to adequate
and secure housing, right to education, right to early childhood care and development, right
to family environment and so on. Similarly, checking the existing markets for children,
reviewing the globalisation and liberalisation policies, checking the growing unemployment
among adults and ensuring living wages for adults are some of the measures that can help
prevent children from being trafficked. A holistic approach is thus necessary if child
trafficking is to be eliminated.

10.4 Children belonging to a Minority or an Indigenous Group (art.30)

10.4.1. The SPR declares that “protection of minorities is the hallmark of  any civilised natrion.” It
then trots out a list of international and national covenants, statutes, laws, protective
provisions and their overall applicability. It does not report that in the period under review
the actual and perceived security of status of both ethnic and social minorities has become a
controversial issue. It ambiguously states that measures have been taken for the health and
education of children of minorities but also that ‘in most other aspects the status of children
of minorities may be determined by the status of the community that they belong to.’ What
does this mean? Is the status good or bad, fair or unfair? The SPR records the setting up of

65
the National Commission on Scheduled Castes and Tribes in 1993 and the creation of the
central Ministry of Tribal Affairs in 1999, and refers to enhanced provisions in the Ninth
Five-Year Plan to ‘empower’ SC, ST and Backward Caste communities. Further into the text,
the SPR admits that the health and nutrition status of these disadvantaged groups is very
bad, and flags this as a priority for Ninth Plan action. Although the actual SPR reporting
period was virtually co-terminous with the Ninth Plan (1997-2002), there is no update on
how these measures targeted, reached, or benefited children of these groups.
10.4.2. Children do not figure much in this part of the SPR. The text is replete with head-counts of
various groups, descriptions of what laws and reservations cover, and a recitation of rights
and standards that India recognises. But the section headed ‘Status of ethnic, religious or
linguistic minorities’ only gives data on numbers and locations. Para 310 on page 412 makes
a mild comment on the bias towards parent or guardian in minority ‘personal’ laws
governing marriage, adoption and maintenance. The text reporting on education again gives
numbers instead of assessing change or drift. The table (8.12, on page 417) on comparative
enrolment shows gross enrolment instead of net, and relates to periods prior to 1996, before
the SPR’s required review period. While this table displays high enrolment rates, Table 8.13
shows out-of-date but high dropout rates, and Table 8.15 on page 422 gives un-dated
information on poor literacy. Did children of these groups fare better during the reporting
period? The SPR does not tell.
10.4.3. The obligations set by India’s acceptance of the 1992 UN Declaration on Minorities are
acknowledged, but there is no assessment of how well tribal cultural diversity, the cultural
variety in different faith communities, the richness of language and dialect, and above all the
recognition of the equal worth of all these, have been upheld by the State during the
reporting period. These years have witnessed violence and discrimination against all minority
groups. The national NGO workshop on children in armed conflict (reported in ‘Broken
Promises,’ January 2000) registered particular concern at the discriminatory exclusion of
minority groups perceived by the majority as ‘outsiders’ to the mainstream as the dominant
majority defines it. The SPR reports that crimes against Dalits and tribals stood at 25,638
and 4,276 respectively in 1998, and claims that ‘these crimes have shown a continuous
declining trend during the last three years.’ But the “three years” in point are 1996 to 1998,
as the bibliography shows, and there is no news on what has happened since then. Is this
kind of litany of legislations and demographic statistics an acceptable report?
10.4.4.   Throughout the more than 20 pages devoted to the subject, there is virtually no information,
and certainly no analysis, on what has happened to secure the dignity and well-being of the
children of minorities of any kind.
11. Looking Ahead: Issues of Continuing and Emerging Concern
11.1   General Measures of Implementation

11.1.1 There is serious concern at the reported dilution of rights provisions in the proposed
new legislation to adopt a national charter for children and to set up a national
commission for children. At the core of this concern is the apparent departure from
CRC obligations which India has accepted. The Minister’s foreword to the SPR speaks
of the mammoth task of fulfilling children’s rights, and says “We would like to give our
solemn commitment towards this end and reaffirm that we are determined to translate
the rights of all children into their daily lives.” The Introduction affirms that the
proposed national commission will “act as a vigilant guardian and protector of children’s
rights in India..” The response to the SP Committee’s concluding observation (#11),
says the commission’s purpose is to “protect the rights of children,” and states that it
will have “statutory powers to enquire into violations of child rights” and will review all

66
laws pertaining to children and make recommendations to “harmonise them with the
provisions of the CRC.” In reporting general measures of implementation (Page 13), the
Government states that the “high-powered” commission will “address the CRC agenda
and proactively actualize the provisions of the CRC.” It says the commission will be set
up along the lines of the National Human Rights Commission (which is nominated by
the Prime Minister, Speaker of Parliament and Leader of the Opposition, among others,
and appointed by the President of India). “It is expected that the Commission will be
empowered to take up the issue of special courts for children and also order punitive
action in case of violation,” and may have state level bodies. The 2001 draft of the
National Commission Bill was made public, but if it is the reportedly  revised 2003 Bill
that is now awaiting legislative approval by Parliament, that is what should be studied
and assessed for its adherence to CRC implementation requirements and standards.
11.1.2. The revisions reportedly delete earlier reference to the CRC, and remove the
provision for the commission to “intervene, investigate or act,” leaving only
powers of enquiry and investigation. The revised Bill reportedly provides for the
‘Central Government’ (not the President) to appoint the commission, and removes the
high-level committee. Provisions for state-level commissions and children’s courts have
reportedly been dropped.

11.1.3 The proposed National Charter for Children (reportedly aimed at replacing the 1974
National Policy) in its 2001 draft acknowledged some but not all of the rights listed in
the CRC. The 2003 revised text reportedly drops all use of the term ‘right,’ and lists the
commitments of State and ‘the community’ to provide a range of supports and services
to children. It is understood to have re-cast the 2001 draft provisions without declaring
any of them to be rights of the children of India. Why this has been done, if it has, is not
known. If this is to be the guiding frame for national plans and the national commission,
it is unfair to the children it purports to serve.

11.1.4
There continue to be gaps in the existing legal system that allow for continuation of
violations of children’s rights. These need to be addressed. (Lack of compulsory
registration of marriages, Child Marriage Restraint Act that does not declare child
marriages null and void, Child Labour Act that prohibits child labour only in certain
processes listed as hazardous and regulates child labour in all other processes, lack of
comprehensive law for trafficking that allows trafficking of children for various
purposes both within the country and across borders, Family laws that continue to
categorise children based on status of marriage of the parents, narrow definitions of
sexual abuse that lead to further victimisation of the victims).

11.1.5
Implementation of existing laws continues to be weak. Examples of this can be seen in
the falling sex ratio in spite of the Prenatal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act, 1994 because neither the State Governments nor the Central
Government have taken appropriate measures to control misuse of the sex selection
procedures or the continuing instances of child marriage and has instead made laws that
perpetuate elimination of the girl child e.g. the law prohibits persons with more than two
children to contest for a political office and this constraint is used to eliminate the girl
child.

11.1.6
The process of formulation of laws and policies by the government continues to be non-
transparent and non-consultative. It fails to incorporate the recommendations and
suggestions from NGOs and other civil society groups. The passing of the 86
th
amendment to the Constitution and the Juvenile Justice Act 2000 are examples of the

67
short-sightedness shown by the government (more details available in the relevant
sections).

11.1.7
Family Law is much more oriented to adults than to children. One of the most
significant examples of this is the categorisation of children as Legitimate and
Illegitimate depending on the status of the marriage or relationship of the parents, and
the discrimination in inheritance rights.

11.1.8
In the absence of holistic people centred and child centred planning governmental
policies and actions have an adverse impact on children. Examples of this can be found
in the impact of agricultural policies, environment related polices and most recently the
population policy (the 2 child norm with incentives and disincentives has impact on an
already declining sex ratio by encouraging selective foeticide).

11.1.9
Problems with inter-sectoral co-ordination and in dealing with children. Ministries such
as the Ministry of Home and law enforcement agencies prevent an inter-sectoral
approach to children’s rights from taking roots in governmental administration.

11.1.10
Per capita investment in the child was worse affected by low budget allocations,
proportionate to other sectors.

11. 2 Definition of the Child

11.2.1 There continue to be varying definitions of the child. These different age-specifics under
different laws create a dilemma.

11.3 General Principles

11.3.1 Despite affirmative measure to ensure non-discrimination, social indicators such as health
and education show that the children of lower socio-economic status, especially dalits and
minority groups continue to be disadvantaged. This raises questions about the capacity of
the law enforcement agencies to perform their task, the political will of the legislature to
mount pressure and the executive to maintain it. The increasing ethnic violence in the
country is a cause for deep concern.
11.3.2 The need to seek children’s participation continues to be viewed as a “fetish” and a western
concept. They are therefore more in the nature of ‘events’ rather than processes. It is still an
anomaly in a culture that allows restriction and regulation of information to children by
adults. Definite systems need to be set in place to ensure sustained processes that facilitate
children’s participation.
11.3.3
Failure to honour of the 0-6 age groups right to education in the 93
rd Amendment Bill
(passed in Parliament as the 86
th Amendment) is an issue of deep concern and a reflection of
the Government’s lack of commitment to this age group.
11.3.4 In spite of recognition of the discrimination faced by the girl child and programmes initiated
by the government to address it, the alarming widening of the gender gap in infant survival
and the female/male juvenile sex ratio for the 0-6 age group in the Census 2001 clearly
shows that this is an area that will need much greater attention.

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11.4   Civil Rights and Freedoms

11.4.1 Registration of births continues to be a challenge in India, although there is a growing
recognition among the people regarding the importance of having a birth registration
certificate, especially for admission into educational institutions.
11.4.2 The past two years have witnessed gross violation of the civil rights and freedoms of
children in the riots in Gujarat where children and their families were brutally murdered,
maimed and sexually abused by state supported mobs. Even though the Constitution
recognizes the pluralistic nature of the Indian society and guarantees rights to non-
discrimination, caste and religion and ethnicity remain causes for violation of civil rights and
freedoms.
11.4.3
Although steps have been initiated to remove children form adult jails, there is no estimate
available on the number of children who continue to be lodged in them. The instances of
children being arrested under POTA and lodged in adult jails show that there is still
ambiguity among the law enforcers regarding the treatment of children.
11.4.4
The circular issued by the Police Commissioner of Delhi (No.44 /C&T/AC-II, 2003) to all
the police stations regarding the “harsh and inhuman treatment” of children on the streets
by police personnel and the need for training in sensitive handling of children is a
recognition by the Delhi Police Department of the gap that still exists. This is a situation that
is faced by children across the country and needs immediate attention.

11.5   Family Environment and Alternative Care

11.5.1 There is no uniform law on adoption and most personal laws do not allow for adoption. As
a result a lot of children who could have found a home in the country of their birth are put
up for inter-country adoption.

11.5.2 The repeated reports of selling of children and their trafficking for adoption is an issue of
concern and calls for examination and monitoring of adoption procedures and follow-up
post adoption.

11.5.3
Although relatively more visible than before, there continues to be a culture of silence
surrounding violence in the home and calls for greater attention and intervention, especially
support services.

11.5.4
Not all states have got legislations to deal with corporal punishments in schools and it
continues to be viewed both by parents and teachers as a legitimate form of disciplining.

11.5.5
The situation of children in childcare institutions- overcrowding, lack of facilities, and
violence continues to cause concern and calls for much greater attention.

11.6   Basic Health and Welfare

11.6.1 Health and health services
11.6.1.1
Stagnation of first day, first week and first month morbidity and mortality
11.6.1.2
One third of all birth continues to be low birth weight.
11.6.1.3
High malnutrition and starvation despite availability of food stocks.
11.6.1.4
Short falls of minimum basic, preventive and protective services and failure to make
systematic and consistent age specific interventions.
11.6.1.5
Deprivations on the basis of socio-economic status, culture and gender continue.
11.6.1.6
Withdrawal of government from providing health services and levying of user
charges has taken health care out of the reach of the poor.

69
11.6.1.7 Additional disease burden and newer diseases due to environmental degradation,
pollution and deterioration of living conditions.
11.6.1.8
Children do not find any focus in the health policy and the detrimental effect of the
Population policy on the already declining sex ratio needs immediate addressing.

11.6.2   Disability
11.6.2.1
Inadequate data on disability continues to hamper planning and implementation.
11.6.2.2
The large section of the disabled group remains un-served. (Even by Governments’
own admission only 5% of the children with disability are presently served or able to
access services. Rural areas are even more un-served.)
11.6.2.3
Degrees of disability are not recognised. Not all forms receive equal attention.
11.6.2.4
The stress continues to be on institutionalised services. Community based support
remains un-addressed.

11.6.3 Standard of living
11.6.3.1
Children continue to live in unsafe and insecure living conditions. Growing
urbanization leading to greater evictions, new economic policies, ecological
degradation contributes to worsening of living conditions.
11.6.3.2
Children continue to suffer from housing distress due to the growing housing
deficit.
11.6.3.3
Large number of children and their families continue to be forcibly evicted from
their homes and habitats without adequate or appropriate compensation.
11.6.3.4
The lack of data on homelessness is a challenge.
11.6.3.5
Non-availability of potable drinking water and increasing commercialisation of
water. Depletion of water combined with contamination of water is a growing
phenomenon.
11.6.3.6
Only 36% of the population have access to sanitation.

11.6.4   HIV/AIDS
11.6.4.1
There is no specific strategy nationally or in the states to address the needs of
children infected or affected by HIV/AIDS.
11.6.4.2
Lack of data is a challenge.
11.6.4.3
There is lack of child friendly, child centred and child appropriate services including
testing.
11.6.4.4
National Aids Control Organisation (the government’s body spearheading
initiatives) has not funded the expensive anti-retroviral therapy. Care is expensive
and denial of health insurance for the infected leads families into debt and children
into further vulnerability.
11.6.4.5
Absence of a social security net for orphaned children.
11.6.4.6
Myths and cultural beliefs continue to play a role in spreading of infection and care
of the infected.
11.6.4.7
Community responses remain discriminatory and stigmatising.
11.6.4.8
Dual problems of substance abuse and HIV/AIDS amongst children.

11.7   Education

11.7.1
Despite increase in the number of schools, nearly half of India’s children remain out
of school. While enrolment figures may show a rise, retention remains a challenge.
11.7.2
Parallel streams of education (most often provided through low quality, informal or
non-formal school systems) continue to create discrepancy amongst the children.

70
11.7.3 The Constitutional Amendment making Education a fundamental right for children
in the 6-14 age group excludes the pre-school child’s right to learning. The above 14
is similarly left out.
11.7.4
It also provides for parallel streams of unequal services, and therefore condones
inequity in quality and substance. This is not fair implementation of a basic right.
11.7.5
Mainstreaming of disabled children needs much more attention. This requires
investment in training, and infrastructure / facilities.
11.7.6
The budget allocation for elementary education is still well below the minimum.

11.8 Special Protection Measures

11.8.1   Children in Emergency
11.8.1.1
Lack of data on children affected by armed conflict.
11.8.1.2
Lack of adequate information on the impact of natural calamities and man-made
disasters on children.
11.8.1.3
Lack of a child centred comprehensive disaster mitigation policy.
11.8.1.4
Lack of a policy to address the vulnerability/rights of children living in conflict areas
and those affected by ethnic and religious strife.

11.8.2 Juvenile Justice Systems
11.8.2.1
No figures to indicate the actual numbers.
11.8.2.2
The law does not state the date or point in time with reference to which a person’s
juvenility is to be decided.
11.8.2.3
There continue to be gaps between international standards and the law.
11.8.2.4
The treatment of children in the juvenile justice system continues to be primarily
custodial in nature.
11.8.2.5
A class bias visible in implementation of the law. It is usually the child from a lower
class background who is entrapped by juvenile justice procedures and institutions
11.8.2.6
Despite stipulation to the contrary, children under seven are incarcerated as children
in conflict with law
11.8.2.7
Lack of consultation in the formulation of the law (and now the amendments)
results in gaps in the law

11.8.3 Children in Situations of Exploitation Including Physical and Psychological
Recovery and Social Integration.

11.8.3.1 Sexual Exploitation, Abuse

11.8.3.1.1
The growing incidence of child sexual abuse, of both boys and girls demands for
comprehensive and adequate laws to provide justice, rights and protection to our future
generation. The Government’s reports to the committee to has recognised this. Sexual
abuse happens both within the home and outside it. The perpetrator is almost always a
known person, often sometimes someone the child trusts. However, in the absence of a
complete and comprehensive law that covers all forms of sexual abuse only cases of rape
or sodomy in which there has been penetration get addressed. Needless to say there are
no statistics.

11.8.3.1.2
The laws on sexual abuse address only two situations, rape when there has been
penetration in the case of girls (376 IPC), or simple “outrage of modesty (354 IPC),
however grievous the crime. Sexual offences against boys get addressed only through
Section 377 which deals with “Unnatural Offences” ( carnal intercourse against the

71
order of nature with man women or animals…). Here too, the law dictates that there
must be penetration in order to establish the offence..

11.8.3.1.3
Areas of continuing and emerging concerns:

a.
Culture of silence surrounding sexual abuse.
b.
Lack of a comprehensive understanding in law of what constitutes child
sexual abuse.
c.
Existing law further victimises the victim as the burden of proof is on the
victim.
d.
Lack of trauma counselling services.
e.
Rehabilitation remains weak.
f.
Growing numbers of reported cases of  children who are abused

11.8.3.2 Child Labour
11.8.3.2.1
The Child Labour Act has not been reviewed and a large number of children
continue to be employed within their families in household enterprises, agriculture,
training centres etc.
11.8.3.2.2
India has not removed its declaration of Article 32.
11.8.3.2.3
Child Labour is still not defined in law.
11.8.3.2.4
The government continues to make a distinction between the hazardous and non-
hazardous occupations.
11.8.3.2.5
Some children face three-fold exploitation  -- of age, economic status and caste.

11.8.3.3   Sale, Trafficking and Abduction
11.8.3.3.1
All action to address trafficking is hampered by limited understanding on this issue
and the lack of adequate data.
11.8.3.3.2
The government’s continues to view and treat “trafficking” synonymously with
prostitution and sexual exploitation. The laws, policies and programmes continue to
reflect this limited understanding. Public opinion is also blurred on this.
11.8.3.3.3
No comprehensive law to deal with all forms and purposes of child trafficking
based on a holistic understanding of the phenomenon.
11.8.3.3.4
Weak on preventive measures.
11.8.3.3.5
Lack of crisis intervention centres and services of trained counsellors needs
immediate attention.
11.8.3.3.6
Inadequate facilities for rehabilitation of the victims of trafficking
11.8.3.3.7
Lack of adequate measures to ensure repatriation of victims of cross-border
trafficking.
11.8.3.3.8
Lack of a unified immigration law in the SAARC countries to check cross-border
trafficking

11.9 The Constitutional  86
th Amendment

11.9.1 Passed by Parliament as the Constitution 93
rd Amendment Bill, making education a
fundamental right for children aged from 6 to 14 years, the amendment elevates the
right to education only for children of primary and elementary school-going age.
This leaves the following shortcomings:

a Contrary to the definition of a child, the Bill allows compulsory education
to end only at the age of 14.

72
b The term ‘compulsory education’ is often interpreted in a way that makes
the parents responsible for their children’s absence at school. This is in
contrast to the socio-economic realities of the country.
c Primary education still is not free.  Parents have to pay considerable sums
for school uniforms, books, stationery, examination fees etc
d The amendment only talks of compulsory education between the age group
of 6-14 years. Pre-primary education for children below 6 years of age has
been ignored.
e The aspect on social integration does not ensure that it is in the best interest
of the child.
11.9.2
There has been no effort for structural changes to make existing institutions child
friendly.
11.9.3
The JJ Act 2000 does not state the right of the child to be heard in judicial and
administrative proceedings.
11.9.4
The Act does not define a minimum age below which children shall be presumed
not to have the capacity to infringe the penal law, which is in contradiction to
Article 40(3) of the Convention.
11.9.5
There is a need for public action to ensure that the Act will be carried out in all
States of the country (as the former Act was only in force in 50 per cent of the
States).
11.9.6
The Government of India should adopt a code for children – as the Committee
recommended in its 23
rd session – to ensure full compatibility of the domestic
legislation with the Convention.

11.10 Areas of Concern

11.10.1 The fact that the Government did not live up to its promise to allocate 6% of GDP
to education is a matter of deepest concern. On the contrary, according to the latest
budget, government expenditure on education decreases, and will remain at around
3% of total government expenditure. This has a negative impact on the quantity and
quality of schooling and on child labour in the country.
11.10.2 Despite political rhetoric, it is regrettable that education on and about CRC is still
not mandatory, or at least actively provided.
11.10.3 Clearer recommendations for an increased participation of children must be made.
11.10.4 It is disappointing that the government – despite the recommendations of the
Committee on the Rights of the Child in its 23
rd Session – has not established a
single age of majority to clarify its definition of the child, and has not ensured that
minimum age limits in all laws conform to the principles and provisions of the
Convention, and did not make more of an effort to enforce protective minimum-
age requirements. The Committee’s special concern at the very low age of criminal
responsibility under the Penal Code (set at 7 years), as well as the fact that the
minimum age for sexual consent for boys has not been specified, have not been
answered.
11.10.5
Efforts to ensure the timely registration of all births in accordance with article 7 of
the Convention, and to take measures with respect to training and awareness-raising
of registration are still insufficient
11.10.6
There are still a number of shortcomings with respect to alternate family care and
adoption.  Aspects not in line with the Convention – especially the lack of a uniform
adoption law – should be rectified.
11.10.7
Despite the Committee’s recommendations on this part, there still are obvious
lacunae within the existing law under which cases of sexual abuse are filed. The
existing laws were formed in the 19
th century and bear no relevance to today’s

73
conditions.  Being a party to the CRC, India needs to review such outdated laws, as
their relevance in cases of sexual abuse reported today is questionable.
11.10.8 As far as children with disabilities are concerned, we show that presently, a very
small percentage of the population has access to special or integrated education and
illustrate the status of the functioning of the Scheme of Integrated Education.
11.10.9 We express our deepest concerns at the negative impact on the health and safety of
children living in inadequate housing, and recommend appropriate measures to
prevent any occurrence of forced evictions and displacement as the overall picture
has not improved within the past years.
11.10.10   On the problem of child labour, India should take no pride in having the highest
number of child labour in the world. Measures must address the challenge of
poverty, and livelihood and improve the coverage of primary and elementary
education.

11.11   Recommendations on Education

11.11.1 Allocation of budgetary resources (art. 4)

a Expenditure on education must be increased to a minimum of 6% of GDP.

11.12 Training/Dissemination (art. 42) and Respect for the Views of the Child (art. 12)

a The inclusion of the education on the Rights of the Child should become
mandatory in all schools and centres of non-formal education.

b The government should approach NGO’s working on this issue to achieve
an effective implementation.
c The government should ensure proper funding for training programmes.

11.13 Name and Nationality (art. 7)

a.
The government has to ensure the registration of all births in the country, and
set a time-frame for the achievement of this objective.
b.
The right to a name and nationality should not be selectively bestowed; every
child has the right to identity. The law must apply impartially.
c.
Street children, who may not have parents or guardians, should be provided
with an official document equivalent to a birth certificate.
d.
It is necessary to make provisions for those children whose births were not
registered to do so or, if registered, to issue birth certificates.

11.14 Temporary Alternate Family Care and Other Non-Institutional Services (art. 20)

a.
Measures should be taken to harmonise laws, policies and schemes with the
Convention.
b.
The process of having a non-institutional approach to childcare should be
accepted as the norm. The Foster Care Scheme should be extended to other
areas to cover more children.
c.
The Government should develop a ‘holistic’ model with a focus on non-
institutional services.

74
11.15 Adoption (art. 21)

a.
The most important issue is the enactment of a Common or Special Adoption
Law that will be applicable to all Indian citizens, irrespective of their religion.
This would be an enabling legislation and ensure the best interest of the child.
Until such a law becomes reality, a modification in the existing Hindu Adoption
and Maintenance (HAMA) Act, 1956 should be sought which will take care of
the existing lacunae in the law.
b.
Until a common adoption law comes into effect, the government’s present
guidelines should be made more enforceable.

11.16 Violence/abuse/neglect/maltreatment (article 19)

a.
Child rape should be incorporated in the existing law.
b.
Boys should be included in the existing law.
c.
Incest should be separately addressed.
d.
The term ‘rape’ should also include a broader term like ‘sexual offences’.
e.
The child should be allowed in camera trial.
f.
Trials should be held within six months of the complaint being filed.
g.
No media coverage should be allowed.
h.
Medical services coupled with counseling should be provided to ensure
complete psychological care.

11.17 Children with Disabilities (article 23)

a.
A transfer of responsibilities for the education of children with disabilities from
the Social Welfare Department to the Department of Education needs to be
considered by the state government.
b.
The State Council for Education, Research and Training (SCERT) and the
Education Department need to accept all models of integrated education that
have been accepted by the National Council for Education, Research and
Training (NCERT).
c.
The involvement of the SCERT needs to grow in terms of training of special
educators for single categories and for multi-category teaching.
d.
Prevention is better than cure. Research has shown that 50% of disability in
India is due to preventable causes. Most Indian children are disabled due to
poverty and its correlates: protein malnutrition, iodine deficiency, and Vitamin
A deficiency. The State government has worked on a polio free campaign which
has been quite successful.  The government now needs to take up prevention
campaigns for disabilities such as hearing impairment and mental handicap.

11.18 Right to an Adequate Standard of Living (article 27)

a.
The state should not undertake forced evictions unless it can provide adequate
rehabilitation and compensation.
b.
Evictions, if unavoidable, must be announced at least 1 month in advance of the
actual demolition.
c.
Resettlement should be as close as possible to the vicinity so that the children
are not totally uprooted from their familiar environment, and can continue to
attend school etc.
d.
Evicted children must be registered and identification cards must be provided
to them.

75
e. Food supplement as well as educational support must be provided during the
transition and re-settling period.

11.19 Economic Exploitation (article 32)

a.
The government should withdraw the declaration it made with respect to article
32 of the Convention.
b.
Poor families should receive subsidies to pay for transportation, school
uniforms, stationery etc.
c.
Public spending on education should be increased to at least 6 per cent of GDP
to increase the equipments and facilities in schools.
d.
Public expenditure in the agricultural sector needs to be increased, especially
with regard to infrastructure and irrigation to fight rural poverty and
unemployment more effectively.
e.
The government should initiate public employment programs for the rural poor
in close cooperation with local NGOs.
f.
The implementation of a social safety net and reasonable land reforms are an
additional necessity to fight poverty and the supply of child labour.

76

Annexures

77
India: Every Right for Every Child: Citizens’ Alternate Report 2003
Annexure #1:
Excerpt from the Govt of India Annual Report of the Dept. of
Women and Child Development 2002 -2003.

Note: The text provides no explanation of these persisting age anomalies.
Who is a Child?

According to the Convention on the Rights of the Child, ratified by India in
December 1992:

“… A child means every human being below the age of 18 years unless, under the law applicable to
the child, majority is attained earlier.”

· According to UN estimates, there are close to 400 million children below the age of 18 years
living in India – more even than in China.

· However, the legal conception of a child varies depending upon the purpose: whether it is for
imposing legal disabilities, (e.g., In the political rights sphere), for spelling out duties and
obligations (e.g., in the juvenile justice system), for affording protection (e.g., from exploitative
or hazardous employment), or for establishing eligibility to receive benefits or special services
(e.g., health, education and maintenance benefits).

· The Census of India treats persons below the age of 14 years as ‘children’.

· According to the Indian Panel Code 1860, nothing is an offence, which is done by a child under
seven years of age (Section 82).

· In the Juvenile Justice Act 1986, juvenile is a boy who has not attained in the age of 16 years, and
a girl who has not attained the age of 18 years.

· According to the Child Marriage Restraint Act of 1929, ‘child’ means a person who if a male, has
not completed 21 years of age, and if a female, has not completed 18 years of age.

· In the Factories Act 1948, no child who has not completed his fourteenth year shall be required
or allowed to work in any factory.

· According to the Mines (Amendment) Act of 1983, no person below the age of 18 years shal be
allowed to work in any mine or any part thereof.

· The Child Labour (Prohibition and Regulation) Act of 1986 defines a ‘child’ as a person who has
not completed his fourteenth year of age.
(Panel on Page 39 of the Annual Report DWCD 2002/2003.)

78
India: Every Right for Every Child: Citizens’ Alternate Report 2003

ANNEXURE #2

Article published in India Today, current affairs periodical (August 2003)

Elementary Failure
The Government’s most ambitious education scheme threatens to falls short of funds and its
target.

Hold your breath. Union Human Resource Minister Murali Manohar Joshi is performing a vanishing
act. In another 150 days, his ministry will take the 23.8 million children currently in farms,
sweatshops and dingy homes and put them in schools across the nation, to be educated by 400,000
freshly appointed teachers. Providing the swallows his swadeshi pride and invites foreign funding
agencies to give the additional Rs. 53,000 million which the cash-strapped Finance Ministry has
refused to sanction to the Sarva Shiksha Abhiyan (SSA) in the very first year of its complete
implementation. All this if you believe the goals his ministry has been advertising so proudly since it
through of SSA, The Union government’s most ambitious–and its most flawed–education scheme
yet, which aims to put into school all the 192 million children in 1.1 million habitations by the year-
end.
Over three years have passed since the SSA was announced and more than Rs. 35,000 million have
already been spent, yet elementary education is still far from a true fundamental right for all children
in India–on paper, the 86
th Constitutional Amendment Act passed in 2002 makes free and
compulsory education a fundamental right for all children between the ages of 6 and 14. On the face
of it, Joshi’s plan is prefect. Elementary education was always treated like Cinderella, it was time the
central government realised that every child out of school is a slap on the nation’s face. This was the
first time the center was going to intervene on such a large scale, collapsing all existing schemes,
cutting out duplication, demanding detailed plans for each of the country’s 600 districts and setting
up a separate machinery for its implementation. In actual numbers, the goals were constructing
319,000 new schools with 1.06 million class rooms and as many teachers. Even Rajiv Gandhi’s pet
scheme, Operation Blackboard, which began in 1986-87 and lasted for 10 years, spent only Rs.
35,000 million whereas the ongoing District Primary Education Programme (DPEP), now a part of
SSA which began in 1994 and is 85 per cent foreign-funded, has spent [only] Rs. 70,000 million.

The scheme may have been visionary, but the goals appear to be virtual; all children between the ages
of 6 and 11 to be in school by the end of 2003; all children to be in the school by 2007 and all of
these children are to pass Class 8 by 2010. Even the most optimistic educationist calls it a tough nut
to crack. As the NDA government winds down its five-year term, the drop-out rate is as high as
10.25 per cent (1999-2000). And its decline is not very encouraging: since 1960-61 the annual rate of
decline has been a measly 0.6 per cent. As K. Venkatasubramanian, member, Planning Commission,
puts it, “It is not enough. Children find it is more profitable to be outside schools. Their presence has
to be made an economic gain.”

But the SSA has been dogged by problems from the beginning. Much of these have to do with the
nature of the programme which assumes that all states will be able to implement the scheme equally
well. As R. Govinda, scholar at the National Institute for Education Planning and Administration,
points out, “Mere Central Government initiatives cannot help if the states do not have the vision and
the perspective to implement it.”
So though there are states such as Himachal Pradesh where the enrolment of children in primary
schools or their equivalent is almost 100 per cent, there are others such as Uttar Pradesh, where 4.3

79
million children have never been inside a classroom, and Bihar, where the figure is 4.43 million. The
state started the scheme only last year. Bihar Primary Education and Parliamentary Affairs Minister
Ramchandra Purvey has an easy explanation:” Neither the officials not the bureaucrats could
understand it.” West Bengal too is a major offender – 3.95 million are out of school currently.
According to S.B.N Biswas, additional state project director, there are not enough teachers. Recently,
the Centre cleared 60,000 additional teachers for West Bengal and also gave the go-ahead for 1,420
teachers who will hold refresher courses. One of this has, however, been implemented yet. Such is
the widespread unpreparedness of states that it took a majority two years to even formalize the
district plans required for Union funds to be sanctioned–even now. Only 583 of the 600 districts
have submitted their reports.
And such is the irony that thought the HRD Ministry is now complaining that it has been short
changed by the Finance Ministry (which has only sanctioned it Rs. 19.51 million  this year as opposed
to its request for Rs. 73,000 million, despite Joshi’s many epistolary efforts), last year Rs. 7,000
million was actually not utilized. The reason: the funds were released in February and could not be
utilized by March 31, the end of the financial year. This year too only Rs. 12,000 million of the
allocation was released as late as July because the Finance Ministry has imposed a ban on the direct
release of money to state implementation societies, special purpose vehicles created to handle the
SSA. On such accountancy issues does the fate of the nation’s children rest.
Yet the HRD Ministry is hopeful that its goals will be met. A confident Joshi says the Centre has
already sanctioned positions for 396, 000 teachers to cater to 15 million  children. The rest of the
23.8 million gap, he says, will be bridged by the approval the Centre has given for Education
Guarantee Scheme (EGS) and Alternative and Innovative Education (AIE) centres for 12.2 million
children. “Sanctions have also been given for 87,000 classrooms and 40,000 school buildings,” he
says.
If you are more realistic, like Sanjiv Kaura of the National Alliance for Fundamental Right to
Education (NAFRE), then the quality of education will become relevant. Says Kaura:” The education
being given to 100 million children in government schools is highly suspect. About 30 per cent of the
schools are a single room/single teacher set-up, another 20 per cent have only two teachers and only
9 per cent have toilets for girl children.”
This target-oriented approach that tends to ignore quality makes for strange bedfellows. One of them
is the BJP and Congress. The EGS/AIE scheme that underpins SSA is actually a progeny of Madhya
Pradesh Chief Minister Digvijay Singh’s government. In fact, the then finance minister Yashwant
Sinha had mentioned it in his budget speech in 2000 while announcing its national extension.

In many places, say Kaura, “the EGS stands for a community shack and a Class 8/ Class 10 pass
‘para’ teacher. Why is the formal school system not being strengthened instead of institutionalizing
cheap, second-track parallel layers for the masses?” But Joshi describes it as an “interim measure”.
“Children cannot remain uneducated while formal schools are established. In any case, we are
ensuring that the education imparted here is not inferior,” he says. The reality, though, is different
(see box ‘Paper Scheme’).

That is not all. Qualities built into the SSA are again being parceled out in separate schemes. Though
Prime Minister Atal Bihari Vajpayee had announced free education for all girl children in 1998, the
scheme was scrapped because of the special focus on the girl child in the SSA. Yet the Union Cabinet
has again announced a Rs. 10,000 million National Programme for the Education of Girl Children
(spread over four years) in 2,200 educationally  backward blocks and slums.
What is the way out for Joshi, whose credibility now depends on the SSA being a success? The
minister argues that 2002-03 was the first full year of implementation because the initial years were
spent entirely in “orienting the states and preparing an exhaustive database”. As for foreign funding,
he does not think it is an about-turn. “It will have to be without any conditions attached and there
will be no compromise on this ground.” He says. Brave words. Now if only he means them.

80
Test Case:
Paper Scheme
EIGHT-YEAR-OLD ASIF’S FEET SINK INTO THE slush. He walks an hour to school everyday
but does not bother with shoes – they are torn, he says. Shoaib, 10. comes to school only after
helping his father at the workshop. And Rukshana, 13, a first – time student, grapples with basic
English only after cooking for her grandparents and siblings.

It is 1.30 in the afternoon in Seemapuri, Delhi, right under the nose of the Central state governments.
It is a government school which an NGO, Pratham, is using in the afternoon to run an Education
Guarantee Scheme (EGS) school under the Sarva Shiksha Abhiyan. The Delhi Government adopted
the scheme in July, but has still not released the funds to the NGO. “They zre giving us grants for
only 240 students,” says consultant Ragini Tripathi. “These 405 children have come from as far as
Ghaziabad to study here. Should we turn them away?”

Under the EGS, the government sanctions Rs 845 a year to evry primary student. This amount goes
up to a princely Rs 1,200 a year in Classes 6-8. The ten teachers Pratham has employed for his centre
alone cost Rs 1,800 each. There is no money to provide textbooks, let alone a school building. “Rules
are rules,” shrug state government officials. “They can spend on a survey to find out how many out-
of-school children there are,” says Tripathi, “but not on educating them. It’s a cruel joke.” Quite.

81
India: Every Right for Every Child: Citizens’ Alternate Report 2003
Annexure # 3

Policy Commitments -- Statements of Intent:
Excerpts from Govt of India Annual Report of the Dept. of Women and
Child Development for 2002-2003.

The Annual Report states the Government’s intention of adopting a national charter for children,
establishing a national commission, and formulating a national action plan. It speaks of the
Government’s consideration of possible revival of the national children’s board.  These statements
should be compared to what is said in the First Periodic Report on CRC, and also to subsequent
reality.  National Charter for Children

The National Agenda for Governance enunciated the Government’s intention to announce a
National Charter for Children with an aim to ensure that no child remains illiterate, hungry or lacks
medical facilities. The department has prepared a draft National Charter for Children after obtaining
the views/comments or suggestions of the state government/UT administration and concerned
central ministries/departments and experts in the field. A meeting was convened on 27 August, 2001
with the social scientists of the country under the chairmanship of Dr. Murli Manohar Joshi, Ministry
of Human Resource Development to discuss the draft National Charter for Children.

The National Charter shall be a written document, a statement of intent embodying the
Government’s agenda for children. The Composed National Charter will emphasize Government of
India’s commitment to children’s rights to survival, health and nutrition, standard of living, play and
leisure, early childhood care, education, protection of the girl child, equality, life and liberty, name
and nationality, freedom of expression, freedom of association and peaceful assembly, the right to a
family and the right to be protected from economic exploitation. The document also define the rights
of children in difficult circumstances, children with disabilities, children form marginalised and
disadvantaged communities and child victims. The proposed document while stipulating the duties
for the State and the community towards children also emphasizes the duties of children towards
family, society, and the nation.

The document is being finalised for obtaining for approval of the Cabinet. This is one of the items
announced by the Prime Minister on 15 August 2002.
(Page 38 of the Annual Report).
National Commission for Children

The Department of Women and Child Development is in the process of setting up the National
Commission for Children. The Commission would be a statutory body set up under an Act of
Parliament. The proposed Commission would be set up for proper enforcement of children’s rights
and effective implementation of laws relating to children. Diverse functions of the Commission
would include, investigation and examination of matters for safeguarding interest and laws for
children, review of policies, programmes and other activities for children, undertake research, fund
litigation, inspect how children’s homes are kept, inquire into complaints and take suo-motu action,

82
etc. The bill also includes certain powers for the Commission, such as summoning and enforcing the
attendance of witnesses and examining them upon oath; discovery and production of any document;
receiving evidence on affidavits; requisitioning any public record or copy thereof from any court or
office; issuing commissions for the examination of witnesses or documents or any other matter
which may be prescribed. Approval of the Cabinet is being obtained and it is expected to introduce
the Bill in the Parliament shortly.
(Page 104 of the Annual Report).

National Plan of Action for Children

The Department of Women and Child Development in the Ministry of Human Resource
Development has initiated action for preparing a National Plan of Action for Children. This Plan of
Action will be prepared after harmonising the goals for children set in the UN General Assembly
Special Session on Children held in May 2002, the monitorable targets set in the Tenth Five Year
Plan, and goals for children in related ministries/departments. The Action Plan will be prepared in
consultation with concerned ministries and departments, states/union territories governments, non-
governmental organisations and experts.

The Department of Women and Child Development has constituted a committee for the purpose of
preparation of the National Plan of Action for Children under the chairmanship of Secretary,
Department of Women and Child Development. The Committee includes the secretaries of other
ministries and departments, experts and NGOs.

The Minister for Human Resource Development has requested the chief ministers to extend their
cooperation in preparation of the National Plan of Action for Children. The other concerned
ministries and departments are also being requested to provide necessary inputs for preparation of
the document.

National Plan of Action for Children is one of the items, which were announced by the Prime
Minister on Independence Day, 2002. Accordingly, PMO is being apprised of the developments
from time to time.
(Pages 38-39 of the Annual Report).
National Children’s Board

The National Policy for Children, 1974 envisages the creation of a National Children’s Board under
the Chairmanship of the Prime Minister to function as a focus and forum for planning, review and
proper coordination of the municipality of services aimed at meeting the needs of children. The
Board was initially set up in December 1974 with the Prime Minister as its Chairman. A proposal for
reconstitution of the Board is now under consideration.
(Page 104 of the Annual Report)

83
India: Every Right for Every Child: Citizens’ Alternate Report 2003
ANNEXURE # 4
SHILLONG DECLARATION
ON
CHILDREN IN ARMED CONFLICT

We, the participants of the National Workshop on Children in Armed Conflict gathered here in
Shillong from 10-12 January 2002.

Mindful that the complex and pernicious issue of children and armed conflict is today an
international concern and urgent national agenda;

Also mindful that conflicts in India, of verifying dimensions, over a considerable period of time
extending to the present, have affected religious, caste and ethnic minorities, indigenous and tribal
peoples and refugees from neighboring countries, impacting most adversely on children and women;

Reaffirming that the rights of children to special protection, and calling for continuous
improvement of the situation of all children without distinction, as well as for their development and
education in conditions of peace and security,

Disturbed by the harmful and widespread impact of armed conflict on children and the long-term
consequences this has for durable peace, security and development,

Nothing with deep concern that in more recent history, a pervasive neo-colonial wave prompted
by globalization, population pressures and the ever-widening search for more natural resources has
penetrated all regions of the world, which has exacerbated tensions among various communities
themselves, often resulting in armed conflict;

Nothing UN Security Council Resolutions 1261, 1314 and 1379 calling for international action for
the protection of children in armed conflict;

Nothing the need for review and amendment of the Government of India’s Geneva Convention,
Act, 1960

Concerned that special legislation in areas of emergencies and armed conflict situations inter alia
Armed Forces (Special Powers) Act 1958, National Security Act 1980, Punjab Security of State Act
1953, Public Safety Act, and re-promulgated Prevention of Terrorism Ordinance, 2001, violate
India’s commitments to International Humanitration Law and Human Rights Standards and have
grave implications on the safety and security of children;

Recalling India’s obligations under its Constitutional provisions and Acts, and international treaties
and agreements, inter alia, the International Bill on Human Rights, International Convention on the
Elimination of all forms Racism and Racial Discrimination, Convention on the Rights of the Child,
Convention on the Elimination of all forms of Discrimination Against Women, the Geneva
Conventions;

Nothing with concern that there are no special policies/guidelines at the national level for children
in conflict areas to address their special needs;

84
Nothing with concern that the new Juvenile Justice (Care and Protection) act 200 fails to meet to
India’s obligations under the Convention on the Rights of the Child nor adequately address the
specific rights to protection for children in armed conflict;

Recalling the recommendation of the Graca Machel Review 1996-2000 for War-Affected Children
that States should sign and ratify the two additional protocols to the Geneva Conventions,
International Criminal Court Statue (1998) on the worst forms of child labour;

Condemning the targeting of children in situations of armed conflict, including enforced
disappearances, extra-judicial execution, sexual violence, abduction and displacement, recruitment
and use of children in armed conflict, strategies and actions directed at causing physical, emotional,
mental or psychological damage to children, and direct attacks on objects protected under
international law, including places generally having a significant presence of children, such as schools
and hospitals,

Condemning with gravest concern the recruitment, training or use of children under 18 in armed
conflicts by armed force or other armed groups, in both state sponsored and non-state institutions
and progrmmes;

Expressing concerns over growing tension in the region and deploring the training of children in
the use of firearms in the National Cadet Corps as well as schools under the direct administration of
the state, armed personnel or private groups, organization which includes the training of children in
the preparation for combat.

Condemning the manufacture, sale, transfer and use of weapons of indiscriminate destruction
including landmines and anti-personal landmines, the use of which has had particularly devastating
effects on children;

Also condemning the proliferation and accessibility of arms, particularly small arms, is a major
contributory factor to the escalation of armed conflicts and also to the increased availability and
access to arms by children;

Concerned at the proliferation of nuclear weapons and weapons of mass destruction including
chemical and biological weapons, in the South Asia Region;

Welcoming International commitments and also affirming the urgent need for the elimination of
compulsory or forced recruitment of children under 18 for use in armed conflict and work which is
harmful to the health, safety and morals of children as enunciated in Convention 182 of the
International Labour Organisation concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour, 1999;

Welcoming the adoption of the optional Protocol to the Convention on the Rights of the Child on
the involvement of children in armed conflict, which prohibits the use of children of under 18 in
hostilities and the efforts made by the Special Representative of the Secretary General, United
Nations on children conflict to further efforts to address this situation.

Also welcoming and re-affirming the determination to put an end to the use of child soldiers and
the need to address all causes leading to armed conflict, including issues of identity and self-
determination, intolerance and discrimination in the regional declarations on the Use of Children as
Soldiers, inter alia, the Berlin (1999), Montevideo (1999), Maputo (1999), Kathmandu (2000) and
Amman Declarations (2001);

85
Appreciating the commitment made in the NGO Action Plan at the International Conference on
War Affected Children in Winnipeg, Canada, September 2000, to create the necessary infrastructure
to protect children and youth in countries and populations vulnerable to armed conflict;

Recognizing the efforts made by non-governmental organisations to address the situation of
children in armed conflict;

Solemnly declare the following,

c.
We call upon all governments in the South Asia Region to fully ratify, implement and
accept all international standards set by treaties, protocols and all other agreements
relating to children in armed conflict.

d.
We call on the Government of India and all parties to any conflict, state and non-state,
to fully respect of the Charter of the United Nations, the Universal Declaration on
Human Rights, the Convention on the Rights of the Child and all international
standards of human rights and humanitarian law

e.
Urge the Government of India to immediately ratify the Additional Protocols to the
Geneva Conventions and revise the Geneva Convention Act of 1960 to reflect this
ratification.

f.
We urge the Government of India for the immediate ratification and adherence in letter
and spirit to the Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict, insure its application in every situation of
armed conflict and enforce it as binding on all parties to the conflict;

g.
Call on the Government of India to ratify the Convention on Refugee and its Additional
Protocol and ensure full protection of refugees and displaced persons due to armed
conflicts;

h.
We urge the Government bring a National Policy to address the special needs of the
children in areas of armed conflicts

i.
Strongly urge the Government of India to ratify the Rome Treaty establishing an
International Criminal Court and bring all military and para-military personal and
security officials responsible for children’s rights violations particularly acts of sexual
violence and abuse of children under the law of the land;

j.
Urge the Government of India for the immediate ratification of and adherence in letter
and spirit to Convention 182 of the International Labour Organisation;

k.
Call on all non-state parties to conflict for the adherence to spirit and provisions of the
Optional Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict and the Geneva Conventions;

l.
Call on the Government of India to repeal the Armed Forces (Special Powers) Act 1958,
and the Prevention of Terrorism Ordinance 2001;

m.
Call upon the G Government of India and all State governments to adhere to the
directions of the Supreme Court regarding arrest and detention;

86
n. Further call on non-state parties to conflict for the adherence to the spirit and
provisions to Convention 182 of the International Labour Organisation;

o.
Call on the Government of India, inter-governmental agencies, corporate entities and
other non-state parties to respect traditional values and rights to peace and desist from
such activities which compromise the survival, welfare and rights of children;

p.
Cal for close monitoring by international humanitarian and human rights agencies in all
areas engaged in or under dispute in conditions clearly susceptible to or presently
involving armed conflict;

q.
Call for the total ban of the production, sale, stockpiling, transfer and use of landmines
and anti-personnel mines in India and for the speedy rehabilitation and restoration of
lands destroyed by their use;

r.
Also call for immediate effective action by the Government of India, neighboring
country governments, governments of producer countries, cooperation of international
agencies and non-state actors for non-proliferation of small arms;

s.
Call upon the Government of India and Pakistan to abandon and reject the option of
weapons of mass destruction including nuclear weapons and to ensure their destruction;

t.
Call on the Government of India, inter-governmental agencies, non-government
organisations and other agencies to priorities immediate, adequate and appropriate
measures for the prevention, treatment, recovery, rehabilitation and reintegration of all
children without prejudice of affected by all forms of armed conflict, with special
attention to those actively involved in combat;

u.
Call on Government, and inter-government agencies, non-government agencies to
ensure comprehensive programmes of prevention, protection, economic and social
support and rehabilitation of girls and women affected by armed conflict, in particular
single headed households;

v.
Call on the Government of India, inter-governmental agencies, non-government
organisations and other agencies to likewise priorities the development of policies and
strategies to be implemented within a reasonable time frame, to ensure the physical,
psychological and cultural healing of children and their communities displayed by armed
conflict;

w.
Appeal to non-governmental organisations to enhance their efforts to address the needs
of children affected by armed conflicts and other conflict situations, as this issue has
been a neglected one
*
.

*
The National Workshop made special reference to international standards and rules such as, inter alia, the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), United Nations Guidelines for the
Prevention of Juvenile Delinquency (The Riyadh Guidelines), United Nations Rules for the Protection of Juveniles
Deprived of their Liberty, UN Minimum Rules, United Nations Standard minimum Rules for Non-custodial Measures (The
Tokyo Rules) and the Cape Town Principles and Best Practice on the Prevention of Recruitment of Children into the
Armed Forces and Demobilisation and Social Reintegration of Child Soldiers in Africa.

87
India: Every Right for Every Child: Citizens’ Alternate Report 2003

ANNEXURE # 5
Alternate Draft Report of the Mumbai NGO Working Group on the CRC
[Submitted for incorporation in the Citizens’ Alternate Report 2003].
1. INTRODUCTION

1.1 This alternate report evaluates the state of the rights of the child in India with respect to the
work experience of the Mumbai Working Group.  In doing so it focuses on some of the
recommendations made by the Committee on the Rights of the Child in its 23
rd session and
assesses whether the Government of India followed these recommendations to improve the
state of children’s rights.  Moreover, it gives recommendations of how further to improve
the situation of the children in the country.

2. POSITIVE ASPECTS

2.1 In its last report to the Committee the Government of India promised to undertake policy
action in some areas to improve the status of children’s rights within the country. Among
these commitments were:

2.2.1.a The Constitution 93
rd Amendment Bill
2.2.1.b The review of the Juvenile Justice Act

2.2 The Constitution 93
rd Amendment Bill was ratified by the Indian Parliament and is
perceived as progress towards making basic education a reality throughout the country.
Indeed, it has to be welcomed that the right to primary education is now established as a
fundamental right with a constitutional backup. There are, however, a few shortcomings
:

2.2.a The age factor: While the Convention defines a child as a person
below the age of 18, the government allows compulsory education to
end at the age of 14. This should be changed and the national
legislation be made to comply with international standards.

2.2.b Children below the age of 6 years have been excluded.

2.2.c Compulsory education: As the term is understood now, compulsory
education tends to penalize parents for not sending their children to
school. This is in sharp contrast to the political and socio-economic
realities in the country. In most cases it is not the parents preventing
their children from receiving education but the lack of political will to
provide the necessary resources. This is sustained by the mere facts:
around 7500 schools have no building, 125,000 are single-room
schools, and 60 per cent of them lack basic facilities such as drinking
water and toilets. The teacher-pupil-ratio increased to 1:42 within the
last 3 decades, 4000 primary schools have no teacher, 112,000 are
single-teacher schools, and 25,000 primary school teachers are para

88
teachers. Moreover, there is still a high marginalization of members
of scheduled tribes and scheduled castes. Many tribes cannot receive
education in their own language. The lack of political will also
becomes evident when regarding the 2000-2001 budget (the budget
analysed when writing the report). Contrary to the government’s
stated intention to raise expenditure on education to 6 per cent of
GDP, the actual expenditure will decrease by around Rs 400,000 with
the percentage remaining at around 3 per cent of GDP. Some State
governments fare even worse. Political rhetoric aside, there has not
been much actual improvement of primary education.

2.2.d Cost of schooling: Primary education is still not free. Parents face
cost for school uniforms, books, stationery, examination fees etc. For
some rural families the expenses are so high that they cannot afford
schooling for all or some of their children. Thus, the socio-economic
realities – as addressed in more detail later – prove to be an obstacle
for many families.

2.3 Education does not receive the financial resources it needs.  As a consequence there is a lack
of adequate infrastructure, of adequate facilities and equipment, and an adequate number of
teachers.  Primary education still is far from being free and universal.

2.4 In 2000, the Government of India amended the Juvenile Justice Act, 1986  to the Juvenile
Justice (Care and Protection of Children) Act. The following passages evaluate the
strengths and point out some areas of concern.

2.4.1 Strengths of the new Juvenile Justice Act:
2.4.1.a              A juvenile is defined as a person under the age of 18.
2.4.1.b The Juvenile Justice Board consists of a Magistrate and 2 social
workers of whom at least 1 should be a woman.
2.4.1.c The Magistrate should have special knowledge or training in child
psychology or child welfare.
2.4.1.d The social workers should have been involved in health, education
or welfare activities pertaining to children for at least 7 years.
2.4.1.e A juvenile in conflict with the law should be released on bail
regardless of whether accused of a bailable or non-bailable offence.
2.4.1.f The Juvenile Justice Board is empowered to obtain a social
investigation report on a juvenile even through a recognized
voluntary organization.
2.4.1.g Proceedings or enquiry in respect of a juvenile in conflict with the
law shall continue as per the provisions of the Act even after the
juvenile or the child ceases to be a juvenile.
2.4.1.h It establishes an Inspection Committee consisting of
representatives of the respective State government, local
authorities, child welfare committee, voluntary organizations and
other medical experts and social workers to inspect Children’s
Homes.

2.4.2 Areas of concern:
2.4.2.a In the Act the state defines its own role quite passively, more as a
“facilitator than a doer”. This raises the concern that the state

89
might leave the main responsibility for the protection,
rehabilitation and social integration of juveniles with voluntary
organizations, thereby avoiding its duty of becoming actively
involved in the process.
2.4.2.b The aspect on social integration does not ensure that it is in the
best interest of the child.
2.4.2.c There has been no effort for structural changes to make existing
institutions child friendly.
2.4.2.d The Act does not state the right of the child to be heard in judicial
and administrative proceedings.
2.4.2.e The Act does not define a minimum age below which children shall
be presumed not to have the capacity to infringe the penal law,
which is in contradiction to Article 40(3) of the Convention.
2.4.2.f There is a need for public action to ensure that the Act will be
carried out in all States of the country (as the former Act was only
in force in 50 per cent of the States).
2.4.2.g The Government of India should adopt a code for children – as
the Committee recommended in its 23
rd session – to ensure full
compatibility of the domestic legislation with the Convention.
3. PRINCIPAL SUBJECTS OF CONCERN AND RECOMMENDATION S
3.1 GENERAL MEASURES OF IMPLEMENTATION
3.1.1
Allocation of budgetary resources (article 4)

3.1.1.1 In its last report to the Committee the government of India expressed its intention to
increase budgetary allocation towards the educational sector. The new budget, however, does
not reflect the government’s will to take the necessary steps to ensure the appropriate
distribution of resources with respect to economic, social and cultural rights of children. On
the contrary, according to the budget for the year 2000-2001, government expenditure
on education
decreases by almost Rs. 400,000, and remains at around 3% of total
government expenditure. Thus, the government clearly missed its goal to increase
the expenditure on education to 6% of GDP by the year 2000. Experts state that India
needs to spend around 2.9% of its annual GDP on primary education alone
to make
education for all children a reality within the next 5 years.

3.1.1.2 Statistics show that within the last 40 years the number of primary schools increased by 2.82
times, while the number of colleges and universities increased by 18 times and 8 times
respectively. Given the still rather high levels of illiteracy in this country – around 27%
among males and 61% among females – the need for an increase in primary schools
becomes obvious.

3.1.1.3 Further, we are concerned about an insufficient number of teachers.  While the number of
teachers for primary schools increased by 812,000 within the last 30 years, the teacher-pupil-
ratio, too, went up from 1:39 to 1:42 in the same period – clearly indicating a failure to
employ a sufficient number of teachers.  Even worse, around 4000 primary schools do not
have a teacher, 112,000 are single-teacher schools, and 25,000 primary school teachers are
para teachers.

3.1.1.4 In addition, the quality of schooling needs to be improved.  Today 7500 schools have no
building, another   125,000 are accommodated in a single room, and 60% of them lack

90
facilities such as drinking water, toilets etc. Thus, initially motivated children can easily
become frustrated and will be inclined to drop out.  Official drop out rates currently are 36%
in primary education and 53% in upper primary classes. Although they declined during the
past decades, these figures are still significantly high and deserve a closer look as to why
children are not inclined to stay in the educational system.

3.1.1.5 Equally disappointing is the fact that schooling is still far from being universal.  In rural areas
70% of the boys and 55% of the girls between 6-14 years attend a school.  For urban areas
the corresponding figures are 84.5% and 80% respectively. The picture becomes even
gloomier when regarding the situation of the scheduled castes and tribes. In the former
group only 46% boys and 19% girls between 6-14 are enrolled, and even less, namely 41%
and 18% respectively among members of scheduled tribes.

3.1.1.6 We strongly recommend, therefore, that expenditure on education be increased to a
minimum of 6% of GDP. Further, of the total allocation on education 50% should be
reserved for primary education, and at least 20% of the funds allocated to primary
education should be utilized for educationally deprived sections of the society as
there is still a persistent marginalization of minorities.

3.1.2 Training/Dissemination of the CRC (article 42) and Respect for the views of
children (article 12)


3.1.2.1 The government intended to make education on the Convention part of the country’s school
curriculum. Education on the subject is, however, still not mandatory. The practical
experience of NGOs, shows that governments and teachers are sometimes not easily
convinced of the advantages the inclusion of the CRC would have for children.  It is
only on the initiatives of NGOs that state officials support action, but a lack of
funding limits the scope of work.

3.1.2.2 Education on the Convention should become mandatory and should be more
actively encouraged by the government as we believe that the creation of responsible
citizens can only be acquired through practical training and proper education.  Given
the opportunity to participate in the issues of their concern, children will learn how
to function as responsible members of the society, and how to address issues in a
democratic manner. In the process they gain confidence to take action for positive
change either in themselves or in their environment. A child who participates
effectively will be aware of societal processes and of his or her own rights. It will be
sensitive towards violations of rights of others and prepared to take action to bring
about change.  This will facilitate a process of empowerment in the child’s mind.

3.1.2.3 Recommendations:
3.1.2.3.a The inclusion of  education on the Rights of the Child should
become mandatory in all schools and centers of non-formal
education.
3.1.2.3.b The government should approach NGOs working on this
issue to achieve an effective implementation.
3.1.2.3.c The government should ensure proper funding for training
programmes etc.

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3.2 DEFINITION OF THE CHILD

3.2.1 The Committee recommended that the Indian government review its legislation with a view
to ensuring that age limits conform to the principles and provisions of the Convention, and
take greater efforts to enforce those minimum-age requirements.

3.2.2 Contrary to this recommendation, there is to-date no uniform definition with respect
to children. The age of a child varies under different laws:

3.2.2.a The Indian Majority Act 1875: a person is deemed to have attained majority
on completion of 18 years.
3.2.2.b The Child Marriage Restraint Act 1929: “child” means a person who, if a
male, has not completed 21 years of age, and if a female, has not completed
18 years of age.
3.2.2.c The Factories Act 1948: No child who has not completed his fourteenth
year shall be required or allowed to work in any factory.
3.2.2.d The Child Labour (Prohibition and Regulation) Act 1986: “child” means a
person who has not completed his fourteenth year of age.
3.2.2.e The Immoral Traffic (Prevention) Act 1986: “child” means a person who
has not completed 16 years of age, and “minor” means a person who has
completed 16 years of age but has not completed 18 years of age.
3.2.2.f The laws are often in conflict with one another due to these diverse
definitions: for example under the Indian Penal Code, the age of statutory
rape is 16 years whereas sexual intercourse by a man with his wife, the wife
being between 15 and 16 years of age is not rape. The Child Marriage
Restraint Act prohibits child-marriage; child-marriage is a marriage in which
either of the contracting parties is a child, i.e. a female under 18 years and a
male under 21 years.

3.2.3 Recommendation: It is necessary that the definition of the term “child” be brought
in conformity with the Convention, viz. below 18 years of age. This has been a
demand of child rights activists throughout the country, especially with regards to
the Child Labour (Prohibition and Regulation) Act which prohibits children below 14
years from working in hazardous occupations and processes.

3.3 CIVIL RIGHTS AND FREEDOMS
3.3.1 Name and Nationality (article 7)

3.3.1.1 It its 23
rd session the Committee recommended greater efforts to ensure the timely
registration of all births in accordance with article 7 of the Convention, and to take measures
with respect to training and awareness-raising of registration in rural areas. Furthermore, it
encouraged steps, such as the establishment of mobile registration offices, and registration
units in schools and health facilities.

3.3.1.2 Data for the year 2000 (Multiple Indicator Cluster Surveys 2000) for the State of
Maharashtra reveal the following realities:

3.3.1.2.a In rural areas 22.4 per cent children were not registered and 21.2 per cent of
those registered had no birth certificates.

92

3.3.1.2.b In urban areas 14.9 per cent were not registered. Here, 17.8 per cent of
those registered had no birth certificates.

3.3.1.2.c The reasons given by those who had not registered were: lack of knowledge
by 42.9 per cent in urban areas and by 27.2 per cent in the rural areas; not
enough time by 13.7 per cent in urban and 34.8 per cent in rural areas; 10.2
per cent in urban areas and 13.0 per cent in rural areas did not regard
registration as important.

3.3.1.3 A birth certificate is a ticket to citizenship. Without proper registration, an individual
does not officially exist and therefore lacks legal access to the privileges and
protections of a nation. Civil registration is also a basic tool by which an efficient
government counts its citizens, plans the requirement for schools, health centers and
other public services. Especially with respect to children’s rights, therefore, proper
registrations are imperative.

3.3.1.4 Recommendations:
3.3.1.4.a It is necessary for the state to work out a realistic plan to ensure 100% birth
registration. It is also necessary to make provision for those older children
whose births were not registered to do so, or if registered to collect birth
certificates.
3.3.1.4.b For street children, who may not have parents or guardians, some kind of
official document equivalent to a birth certificate needs to be determined,
and a procedure laid down for the child to independently avail of this.
3.3.1.4.c It is essential to establish the variety of reasons of why births are not
registered or certificates are not collected, and to work out ways to simplify
the procedures.

3.4 FAMILY ENVIRONMENT AND ALTERNATE CARE
3.4.1 Temporary Alternate Family Care and Other Non-Institutional
Services (article 20)


3.4.1.1 Under the joint initiative of the State government and Unicef, Bal Sangopan Yojana
(Foster Care) was launched in 1995. Eleven organizations in Maharashtra are
providing Foster care service to children of the families in crisis. The scheme aims at
the prevention of institutional placements of children and to provide alternative
family care for those who are already in institutions. Altogether 340 children are
covered under the government scheme at any given time. Although the number of
requests received far outweigh the sanctioned provision, each agency raises its own
funds to accommodate a few more. Besides these institutions, in nine districts,
Women & Child Welfare Officers are operating the scheme covering 116
beneficiaries.

3.4.1.2 The scheme is a progressive step by the State Government to reduce the incidence of
placing children in institutions and to arrange for alternative family care wherever feasible,
for those children who are already in institutions.

3.4.1.3 Some of the strengths are:

93
3.4.1.3.a A child, who is placed in an institution, usually remains there till the age of 18 years.
With BSY other alternatives for family care are explored and efforts at rehabilitation
of the biological family are made.
3.4.1.3.b The BSY Scheme is of great help to families in crisis, as it not only involves the
child but also the other family members who play an important role in the child’s
life.
3.4.1.3.c The Scheme promotes the non-institutional approach, which deviates from the
traditional approach of institutional placements.
3.4.1.3.d Rehabilitation of the family can be facilitated if the family is not made dependent on
aid, and is helped to mobilize its own resources while the temporary help is availed.
3.4.1.3.e In the case of an orphan or a destitute child who is not adopted, the child can
continue to receive assistance until he/she is independent and rehabilitated.
3.4.1.3.f Children of a family where there is a marital breakdown or the parents are separated
are considered under the Scheme. The counseling can bring about reconciliation and
provide support to the children during this critical period.

3.4.1.4. Areas of concern:
3.4.1.4.a The implementation of the Scheme should be monitored only by NGOs who have
experience in child welfare and by professionals as it involves working with
individuals in crisis.
3.4.1.4.b Periodical evaluation of individual cases is necessary to determine the future course
of action. Otherwise it reduces to a financial dole out. This does happen in the
current practices.

3.4.1.4.c The Scheme of Assistance to Voluntary Organization for Homes (Shishu Grah) for
infants for promoting in-country adoption was implemented by the Ministry of
Social Justice and Empowerment. A Unit under the scheme comprises 10 children
in the age group of 0-6 years, and a maximum number of units per institution can be
two. A non-recurring, maintenance and administrative annual grant of Rs 4,81,950
(for 10 children) is provided with the concerned agency contributing 10% of the
cost. The Central Adoption Resource Agency (CARA) has assigned Voluntary
Coordinating Agencies (VCAs) to inspect Shishu Grahs with a view to make their
functioning effective.

3.4.1.5 Areas of concern:
3.4.1.5.a The scheme has been granted to institutions that have no adoption programme.
Some of them are neither aware of the proper procedures nor of documentation
related to the determination of the child’s legal status as free for adoption,
placement and subsequent legalisation.
3.4.1.5.b These indicate gaps in monitoring and evaluating the programme.

3.4.1.6 Sponsorship: In the State of Maharashtra, the ‘Savitribai Phule Dattak Yojana’ provides the
educational accessories to a limited number of girl children. There are a number of formal
and informal sponsorship programmes in the country that are administered by private
individuals, Trusts, and other local and national level NGOs.

3.4.1.7 A wide number of family and school related services are rendered by a few NGOs with a
view to minimise the school drop out rate and to sustain the child in the school, family and
community. These include financial aid, counseling, personality enrichment programmes,
nutrition, hobby classes, coaching classes, recreation and sports.

94

3.4.1.8 Areas of concern:
3.4.1.8.a The number of those in need far outweighs the small number of beneficiaries.
3.4.1.8.b There is no regulatory mechanism to monitor the misuse of the funds collected in
the name of sponsorship or to ensure effectiveness of the services.

3.4.1.9 Recommendations:
3.4.1.9.a Review of all child legislation by the Law Commission towards the content as
well as modalities and infrastructure for implementation.
3.4.1.9.b Review of the National Policy for Children Act 1974, with an intention to
incorporate clear recommendations of the CRC and to develop a new policy
for vulnerable children.
3.4.1.9.c Integration of various policies related to the child and evolution of a “holistic
model” with a focus on non-institutional services.
3.4.1.9.d Measures should be taken to harmonize laws, policies and schemes with the
CRC.
3.4.1.9.e The process of having a non-institutional approach to childcare should be
accepted as the norm. The Foster Care scheme should be extended to other
areas to cover more children.

3.4.2 Adoption (article 21)

3.4.2.1 In its 23
rd session the Committee recommended a review of the legislative framework of
domestic and inter-country adoption, and for the Indian government to become a party to
the 1993 Hague Convention on Protection of Children and Cooperation of Inter-country
Adoption.

3.4.2.2 Despite the Committee’s recommendation, there is to-date no uniform adoption law
in India. Several bills that had been introduced for enactment of adoption legislation
have been unsuccessful.

3.4.2.3 Adoptions are carried out under two laws:
3.4.2.3.a The Hindu Adoption and Maintenance Act (H.A.M.A.) of 1956.
3.4.2.3.b The Guardians and Wards Act (G.W.A.) of 1890.

3.4.2.4 The H.A.M.A. is the only adoption law that is applicable to Hindus. Under the law
two children of the same sex cannot be adopted and the adopting mother is not a joint
petitioner but only a consenting party in the adoption.

3.4.2.5 Inter-country adoptions are carried out under G.W.A. of 1890 and the child leaves the
country only as a “Ward” to be adopted later in the receiving country.

3.4.2.6 The National Policy on children has no special reference to adoption. In the absence of a
common adoption legislation, inter-country adoptions are governed by the Supreme Court
judgment of 1984 which provides the guidelines for adoption. In 1995, the Ministry of Social
Justice & Empowerment, Government of India, revised the guidelines to regulate matters
relating to adoption of Indian children. Hence, adoption of Indian children is presently
governed by the Supreme Court guidelines and the Government of India ‘Revised Guidelines
On Inter-Country Adoption Of Indian Children 1995’.

3.4.2.7 The Govt. of India has established a Central Adoption Resource Agency (CARA) in the
Ministry of Social Justice & Empowerment, to act as a clearing house of information in

95
regard to children available for adoption and to regulate, monitor and develop programme
for the rehabilitation of children through Adoption/Guardianship.

3.4.2.8
Problems and Lacunae:
3.4.2.8.a The National Policy for Children, 1974, needs review since it has to be more
child-oriented and need-based in order to be effective, and needs to include
adoption.
3.4.2.8.b There are a number of contradictions in licensing policies of institutions.
3.4.2.8.c In the absence of a uniform adoption law, there is no legal protection available to
the adopted child and the child does not enjoy the same status and rights as a
natural born child (except under H.A.M.A.).
3.4.2.8.d The best interests of the child cannot be protected in the absence of a suitable
legislation.
3.4.2.8.e The Supreme Court judgments are used as the reference point for inter-country
adoptions, but they have the status of being only guidelines and not law.
3.4.2.8.f Promotion of in-country adoption should be the major goal as per the CRC and
inter-country adoption is to be considered only as the second-best option. But in
practice this does not always happen.
3.4.2.8.g The CRC recommends that the adoptions should be carried out only by authorized
agencies, but there is no mechanism to ensure and enforce that this happens and
there are still many cases of “private” adoptions. This may involve unethical
practices and also does not guarantee the child any legal security.
3.4.2.8.h There is no adequate support system or government schemes or programmes
available to the natural mothers who do not want to give her child to adoption but
due to a force of circumstances are compelled to take the decision. Adequate
counseling too is unavailable to help them with their situation.
3.4.2.8.i There is a lack of adequate networking between agencies at inter-state levels and
there is no forum for them to interact on common issues.
3.4.2.8.j According to the Convention, a child means every person below the age of 18 years.
In India, the census treats persons below the age of fourteen as children. There is no
uniform concept or consistency on who is a child, by law.
3.4.2.8.k There is a lack of coordination in dealing with children since several ministries are
involved with children.

               Box-1: Case Study on adoption

Asha & Nisha are twins who were given up by their birth-mother. They were born out of
wedlock and due to social stigma attached to unwed motherhood the mother was unable to
take care of them. No one  in her family was willing to support her.
A Hindu family decided to adopt them. They were, however, unable to adopt both the girls as under
the Hindu Adoption & Maintenance Act 1956 only one child of each sex can be adopted. The only
options open to the family were:
I.
To take one child in adoption and the other in Guardianship.
II.
To take both of them under legal Guardianship under the Guardians & Wards Act 1890,
which did not confer on the children rights of adopted children.
The lacunae in the Law have been detrimental to the child’s interests.

3.4.2.9 Recommendations:
3.4.2.9.a The most important issue is the enactment of a Common or Special Adoption
Law that will be applicable to all Indian citizens, irrespective of their religion.

96
This would be an enabling legislation and ensure the best interests of the
child. Until such a law gets enacted, a modification in the existing H.A.M.A.
should be sought which will take care of the exiting lacunae in the law.
3.4.2.9.b Until a common adoption law comes into effect, the government’s guidelines
should be made more enforceable.
3.4.2.9.c It is also essential that enquiries be conducted in an expeditious manner for
declaring the child destitute under the Juvenile Justice Act so that the child
can be suitably rehabilitated without undue delay.
3.4.2.9.d A set of “norms and criteria” must be developed to assess the suitability of a
placement with Indian or foreign parents, so that there is uniformity in
practice among agencies and no indiscriminate placement.
3.4.2.9.e The role and functions of the following agencies involved in adoption work
must be clearly defined and delineated to avoid ambiguities and
misinterpretations.
- The Central Adoption Resource Agency (CARA)
- Placement Agencies
- Scrutiny agencies
- V.C.A (should actually be called A.C.A. Adoption Coordinating
Agency; because the nomenclature of the term “voluntary” causes
confusion).
- These agencies must also be licensed for adoption work.
3.4.2.9.f The major role and function of CARA should be to regulate inter-country
adoptions and facilitate domestic adoptions. All its functionaries must be
clear about this role and should not in any way take a contrary stand of
promoting inter-country adoptions over in-country adoption.
3.4.2.9.g The Govt. must undertake projects and programmes to promote in-country
adoption through its various media and also support NGOs in their efforts of
promotion of domestic adoptions.
3.4.2.9.h A regular annual meeting of all adoption agencies must be called under the
auspices of CARA so that there is a platform and an opportunity available for
discussion of common issues.
3.4.2.9.i There should be a separate licensing system from the State Government for
agencies involved in in-county adoption work just as there is a license for
inter-country adoption work from the central government. A set of eligibility
criteria must be laid down for adoption agencies by the government.
3.4.2.9.j Agencies receiving funds from affiliated agencies abroad should ensure that
such assistance is not linked with an obligation to send a certain number of
children for foreign adoptions.
3.4.2.9.k A “birth certificate” as a form of identification, is the basic right of every
child. The adopted child must receive a birth certificate like any biologically
born child.
3.4.2.9.l All adoption agencies must take a more holistic view of child welfare and
evolve preventive, community based non-institutional services for children
and families “at risk.”
3.4.2.9.m An orientation programme must be undertaken for all the functionaries of the
Juvenile Court, Welfare Boards, City Civil Courts, High Courts and District
Courts that deal with destitute children and adoption. A module must be
developed to address all the issues.
3.4.3 Violence/abuse/neglect/maltreatment (article 19)

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3.4.3.1 Despite the Committee’s recommendations on this part, there still are obvious lacunae
within the existing law under which cases of sexual abuse are filed. The existing laws were
formed in the 19
th century and bear no relevance to today’s conditions.
3.4.3.1.a The emphasis lies on morality and modesty and disregards the trauma and loss of
the sexually abused victim.
3.4.3.1.b Oral sex is not included, child rape not validated, incest offences are not separately
addressed, and sections of rape and molestation ignore the male sex.
3.4.3.1.c In some cases of abuse it is almost impossible to find evidence of penetration
especially
when the child is below 12 years of age. By the very virtue of several such
cases being reported, such outdated laws need to be seriously reconsidered and
declared redundant.

3.4.3.2 Being a signatory to the CRC, India needs to review such outdated laws, as their relevance in
cases of sexual abuse reported today is questionable.

Box 2 :Case Studies on violence/abuse/neglect/maltreatment

1. A grandfather had been abusing his grandchild, a complaint had been filed and the matter tried in
court.  Over a period of time, the mother of the child became a victim of a lot of planned acts of
revenge.  The parents separated and the mother was given custody of the children, aged 5 and 3years.
The children had to be taken to the grandfather’s home, unsupervised so that the father could have
“visiting rights”.
The judgment was  derogatory, suspecting the woman’s mental state and actually condemning her
accusation. The judge said he found it hard to believe the possibility of a grandfather sexually abusing
his granddaughter.
The judgment included the judge’s opinion about the validity of the case when the 3-year-old child
could not verbalize what had happened to her when the counselor spoke to her the first time. The
child’s mental state, its confusion at the sequence of events where she had been dislodged from the
home, the parent’s rift, and the abuse was totally sidelined.
The whole attitude of the judge and his written comments in the judgment speak volumes of the
insensitivity and narrow mindedness of the judiciary.

2. An NGO filed a case of domestic violence and child sexual abuse based on a woman’s accusation
that her husband ill-treated her and sexually abused her daughters.  The man had political clout and
in turn filed a case of abduction and kidnapping against the activists in the NGO because they had
assisted the wife to leave the house with her children.  The accused man was arrested and released on
bail. .Despite proof of the children having been abused and the wife having been harassed, no further
action taken against the accused. He continues to pose a threat to his wife and children.

3.4.3.3 Recommendations:
3.4.3.3.a Child rape should be incorporated in subsection 376.
3.4.3.3.b Boys should be included in the existing law.
3.4.3.3.c Incest should be separately addressed.
3.4.3.3.d The term rape should also include a broader term like sexual offences.
3.4.3.3.e Monetary compensation should be a part of the punitive measures given by
the court along with imprisonment.
3.4.3.3.f Sensitized police and judicial personnel should deal with the child — the
atmosphereshould be child friendly and uninhibitive, including the dress
code of the police and judges.

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3.4.3.3.g The child’s right to dignity and privacy needs to be addressed as per the
CRC. The child should be allowed to be in its own environment.
3.4.3.3.h The child should be allowed in camera trial.
3.4.3.3.i Strict confidentiality should be maintained.
3.4.3.3.j Trials should be held within six months of the complaint being filed.
3.4.3.3.k Child friendly phrases, i.e. in the language of the child should be enforced.
3.4.3.3.l No media coverage should be allowed.
3.4.3.3.l Medical services coupled with counseling should be provided to ensure
complete psychological care.

3.5 BASIC HEALTH AND WELFARE
3.5.1 Children with disabilities (article 23)

3.5.1.1 In its 23
rd session the Committee recommended to increase the capacity of institutions for
the rehabilitation of children with disabilities, and to improve access to services for those
children living in rural areas. It also stressed the need for awareness campaigns to promote
the rights of children with disabilities. Further, the Committee encouraged the government
to undertake greater efforts to make the necessary resources available for an adequate
training of persons working with these children.

3.5.1.2 In the light of these recommendations we urge the government to take a proactive role on
behalf of children, especially children with disability. We wish to draw the government's
attention to the following key areas.

3.5.1.3. Education of children with disability is not a welfare activity. It is every child’s right,
including children with disability, to receive education. Education enables people with
disability to take their place as equal members of the civil society. Besides special education
facilities, integrated and inclusive education is an important development that goes a long
way in the rehabilitation of persons with disability.

3.5.1.4 Presently, a very small percentage of the population has access to special or integrated
education with the coverage being even lower in rural areas (less than 5%).  The National
Council for Education, Research and Training (NCERT) has broadened the scope of the
scheme of integrated education and has initiated training and multi-purpose special
educators to work as resource teachers or itinerant teachers under the integrated education.
However, the State Council for Education, Research and Training (SCERT) of the state
needs to be far more proactive.  The full potential of the integrated education scheme is yet
to be explored by the state’s education department and the NCERT and all models of
integrated education scheme need to be implemented.

Box-3: Case Study on children with disabilities

A girl was found lying on the footpath and had maggot infested wounds on her back. She was unable
to communicate. A team from an NGO working with children took the child to a children’s hospital.
The child was refused admission as the doctors felt that she was above 14 years of age and the
hospital does not administer to children above that age limit. The team took the child to the General
hospital but was once again refused admission because she was mentally challenged. The child was
then taken to an Institute for Mental health. Here too she was denied admission, as they required a
magistrate’s letter for patients without relatives. With the intervention of the Superintendent of the
hospital, the child was admitted in a General Hospital and given IV drips. The girl was then admitted
in a home for children with disabilities and follow-up continues.

99
3.5.1.5 Recommendations:
3.5.1.5.a A transfer of responsibility for the education of children with disability from the
social welfare department to the Department of Education needs to be considered
by the state government.
3.5.1.5.b The SCERT and the Education Department need to accept all models of integrated
education, which have been accepted by NCERT such as the area approach. It
needs to broaden and strengthen the implementation of the scheme so that it
benefits the maximum number of children with disability who have been integrated
into regular schools as close to their homes as possible.
3.5.1.5.c The involvement of the SCERT needs to grow in terms of training of special
educators for single categories and for multi-category teaching (which is very
limited presently).
3.5.1.5.d The centrally sponsored scheme of grant-in-aid to voluntary organizations running
special schools for children with disability basically provides for only primary
education with only a few schools being for secondary education. Moreover, in
spite of the fact that it is well recognized that the first five years of a child are the
most important learning years, there are very few early intervention programmes
and preschools for the various categories of children with disability.
3.5.1.5.e The Government should implement a scholarship scheme for children with
disability from lower socio-economic backgrounds. The central government had
twice commissioned research studies to evaluate the implementation of the
scholarship scheme. One of the studies was done especially to evaluate the
implementation in Maharashtra state.
3.5.1.5.f As per the direction given under the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act (PWD), 1995, the State
Government has appointed a Commissioner. However, the Commissioner needs to
be given independent charge. The appointment of the Commissioner and the
Advisory Committee needs to be publicized so that organizations working with the
disabled as well as the disabled and their families become aware of their existence
and their work.  They can also approach the Office of the Commissioner to redress
their grievances.
3.5.1.5.g Prevention is better than cure. Research has shown that 50% of disability in India is
due to preventable causes. Most Indian children are disabled due to poverty and its
correlates: protein malnutrition, iodine deficiency and vitamin A deficiencies, which
are major causes for blindness and mental retardation. The State government has
worked on a polio free campaign, which has been quite successful. At present there
are no official prevention programmes for the hearing impaired.  The government
now needs to take up prevention campaigns for other disabilities such as hearing
impairment or mental handicap.
3.5.1.5.h The PWD Act has laid down that the government should ensure a barrier free
environment especially in public places.  However nothing has been actively done so
far by the state government, which is a matter of great concern. The State
government needs to ensure that all new public buildings should be accessible to
people with visual and locomotor disabilities including wheel chair users.

3.5.1.5.i A special focus is also required on equalization of opportunities and social
integration of children with disability into mainstream society.

3.5.1.5.j The PWD Act should enforce the mandatory 3% reservation in corporate and
service sectors.

100
3.5.1.5.k More funds should be allocated for the “seed money” and self-employment
schemes and the manpower in charge of implementing these schemes must be
retained for effective and wider utilization of funds.

3.5.1.5.l Improved co-ordination between Special Employment Exchange, Vocational
Rehabilitation Centres (VRCs) under the Ministry of Labour and existing training
and sheltered workshops under the Ministry of Social Justice will help to cover more
handicapped persons.

3.5.1.5.m NGOs wanting to take up the challenge in the area of income generation activities
for the handicapped should be assisted in terms of grant exemptions (e.g. sales tax,
octroi tax etc).

3.5.2 Right to an adequate standard of living (article 27)

3.5.2.1 Although the Committee expressed its concerns at the negative impact on the health and
safety of children living in inadequate housing and recommended appropriate measures to
prevent any occurrence of forced relocation and displacement the picture has not
improved within the past years.

3.5.2.2 In Maharashtra state about 50,000 homes have been demolished within the last 2
years. Even by taking the very conservative assumption that the families concerned
consisted of 4-member-families the number of children negatively affected by these actions
is as high as 100,000 who have not only suffered the psychological trauma of having seen
there homes destroyed but were also deprived of their basic right to shelter. The state of
homelessness is often aggravated by impoverishment, ill health, and social discrimination or
even social exclusion. Moreover, involuntary and often violent removal results in the
destruction of local identity, culture and skills. In most cases, those evicted receive little
warning, entirely insufficient or no compensation, limited or no access to legal protection
and almost never adequate resettlement.

3.5.2.3 The government of Maharashtra had the intention to adopt a norm of a 4-member-family.
According to this new legislation, any additional family member would not have been
entitled to benefits from the State’s welfare scheme, including free health care. Due to
public pressure, however, the state government did not set this intention into practice.  The
example shows, nevertheless, the danger the urban poor face with regard to their basic rights
to health and shelter.

3.5.2.4 The Maharashtra example also illustrates the shortcomings of public action in favour of the
poor with the adverse results this has especially for children. These policy actions deprive a
large number of children of their basic needs and rights – most of all of proper nutrition,
health care and education. Following this policy, the state contradicts its own commitment
made by signing the Convention on the Rights of the Child and calls into doubt the
seriousness of its intentions.

3.5.2.5 At a Children’s Convention on Children’s Housing Rights, held in May 1996, 184 children in
the age group of 9-16 years from the streets, pavements and workers colonies (slums) of
Mumbai (Bombay), India got together to talk about their current housing situation, the
violations of their own housing rights and the aspirations that they have for themselves, their
families and their communities.

3.5.2.6 Box-4 summarises what the children from streets, pavements and slums had to say.

101
Box-4: Child's Right to Housing

CHILDREN LIVING ON THE STREETS OF MUMBAI
Alone on the mean streets of Mumbai, rebelling against poverty, neglect and abuse within their
families are the street children - run away children who have no bed........only “the earth and the sky”
and who have made the spaces under overhead bridges, railway platforms, marketplaces, street
corners and beaches their homes. They live in constant fear of the police, because they are get
beaten-up brutally. They never go to school. They work all day, as ragpickers, shoe-shiners, luggage
carriers, etc.  Since they have no safe place to keep their earnings, whatever they earn is blown-up on
movies, drugs, alcohol and other vices. They either relieve themselves in open spaces or pay Rs. 1/-
per visit to a public toilet. Their 'dwelling places' are surrounded by garbage and infested with
rodents. When asked what their dream house would be like, they talked of clean, sprawling rooms
with attached bathrooms and water connection, surrounded by a garden full of trees.

CHILDREN LIVING ON PAVEMENTS

Children living on the pavements or sidewalks alongside roads form another group of homeless
children. They live with their families in homes made of plastic sheet, gunny sack, tarpaulin or
cardboard sheets held together by ropes and stones. The threat of being evicted and rendered
completely homeless hangs like the proverbial Sword of Damocles over their heads. The resulting
insecurity and the sight of bulldozers, policemen and other officials pulling down their homes is
often traumatic for the children.

The fundamental issue facing the children from a slum community in Jogeshwari, Mumbai, India,
was the increasing communalisation in the area which has been building up over the years and which
erupted in large scale violence and rioting in December 1992 and January 1993. Most of the
discussions with the children centred around this.

During an exercise of building `The Home of their Dreams’ through modelling with clay, leaves,
sticks and other waste material, the children constantly expressed that what was most important for
them was a clean house and clean surroundings.

The house the young girls dreamt of and created through a clay model was labelled ‘Shanti Nivas’ -
the House of Peace. They stressed the importance of having a toilet inside the house. A swing and a
bed with cotton as a mattress excited them immensely. And they were very vocal about the fact that
the house should be surrounded by trees and flowers.
Box-5 : Narration of a pavement dweller

The saga of forced evictions for this young man in Mumbai began when he was a little boy,
and now his children suffer…

“I live on the pavements of Mahim. My parents migrated to Mumbai. Our first home was a pipeline.
I have spent 8 years of my life living in a pipe. Then we built a hut on a pavement. That was our
progress in life. Then the demolitions began.
In the first demolition we were carted in buses and physically dumped outside the city. My mother
died at this time. I think it was the shock of the experience. She could not cope with the trauma. I
arranged my own marriage on the pavement. I have lived on payments for 30-35 years.
The demolitions are getting worse and worse. The last time they were even carrying big guns. Are we
enemies that the government is waging a war against us? We fulfil our duties as citizens by voting but
the government is not doing its work. We would not live on the payments if we had a choice. We are
ready to move if the government gives us a site for resettlement. Instead of spending money on
demolitions the government should spend the same amount on re-housing us. We have no hope for
a better life. For the government we are enemies. We moved from the rural areas to the city and now

102
we roam about the city like nomads. If the basti gets demolished we move elsewhere…always on the
pavements. Our children’s health suffers. During demolition we don’t cook for 2-3 days. We lose
work days. But we have survived. That is our lot.”

3.5.2.6 Recommendations:
3.5.2.6.a The state should not undertake forced evictions unless it can provide
adequate rehabilitation and compensation.
3.5.2.6.b A grievance redressal mechanism must be set up for cases of any violation of
human rights.
3.5.2.6.c Evictions if unavoidable must be announced at least 1 month in advance of
the actual demolition.
3.5.2.6.d In these cases assistance must be offered to the needy such as elders and
families with young children and little or no support.
3.5.2.6.e Resettlement should be as close as possible to the vicinity so that the
children are not totally uprooted from their familiar surroundings, and can
continue to attend schools etc.
3.5.2.6.f Evicted children must be registered and identification cards must be
provided to them.
3.5.2.6.g Food supplement as well as educational support must be provided during the
transition and re-settling period.

3.6 SPECIAL MEASURES OF PROTECTION

3.6.1 Economic exploitation (article 32)

3.6.1.1 Despite the Committee’s previous recommendations on this aspect as well as the repeatedly
stated intentions by government officials to fight child labour more vigorously, most
experts agree that in absolute numbers India today has the largest body of child
labour in the world.

3.6.1.2 In this context we deeply regret that the government did not follow the Committee’s
recommendation to withdraw its declaration with respect to article 32 of the Convention. In
light of the current child labour situation the government should set a positive sign and do
away with the declaration, thereby demonstrating its intent for serious action to fight child
labour.

3.6.1.3 Government action so far tends to be confined to children working in so-called ‘hazardous’
conditions. According to the Ministry of Labour, 200,000 children who formerly worked in
hazardous occupations have been covered by the National Child Labour Projects (NCLPs)
which have been implemented in 96 districts in 13 states. It has to be welcomed that the
government put a number of NGOs in charge of the implementation of the projects, and
that the implementations of NCLPs help create awareness about child labour within the
country. Another positive sign is the continuation of the ILO’s International Programme for
Elimination of Child Labour in India, which so far helped 80,000 former working children.

3.6.1.4 Taking into account both the magnitude of child labour as well as the difficulty to
distinguish between hazardous and non-hazardous occupations, it becomes clear,
however, that far more needs to be done. The ultimate goal must be the total
elimination of child labour so that all children can enjoy their rights enshrined in the

103
Convention. To achieve this, public action needs to be extended to fight all forms of
child labour and to eradicate its root causes.

3.6.1.5 The root causes of child labour include poverty, unemployment/underemployment of
parents, and   inadequate quality and quantity of schooling

3.6.1.6 An assessment of the root causes of poverty and unemployment reveals that
3.6.1.6.a Most of the poor, i.e. 75%, live in the rural areas where child labour is concentrated
in agriculture.
3.6.1.6.b Public investment in the agricultural sector decreased sharply within the last 15 years
leading to increased rural poverty. This induced rural-to-urban migration and is
likely to have increased the supply of child labour.
3.6.1.6.c Child labour in urban areas is mostly found in manufacturing. Here the informal
sector is the largest employer of child labour.

3.6.1.7 The shortcomings of the educational system have been assessed before in this report.
They consist of an inadequate number of primary schools, badly equipped schools, an
inadequate number of teachers – especially in the rural areas, the fact that primary education
is neither free nor universal.

3.6.1.8 To eradicate the root causes of child labour effectively both shortcomings need to be
addressed.  This entails fighting poverty in order to create employment for adults.
Simultaneously, the quality and quantity of the educational system has to be
improved to achieve the goal of free and universal education.

3.6.1.9 Poverty eradication measures include increased public investment in the agricultural sector,
especially with regard to infrastructure and irrigation; land reforms to achieve a fairer
distribution of resources. This had positive effects in the State of Kerala, for example; public
employment programmes for the rural poor in close cooperation with local NGO’s;
implementation of a social safety net – including minimum wages, unemployment insurance,
old age pensions etc.

3.6.1.10 Free and universal education must become a reality. This entails subsidies for poor families
(for instance in the form of vouchers) to pay for transportation, school uniforms, stationery
etc.; increased spending on education to at least 6 per cent of GDP to increase the number
of and the equipments and facilities in schools.

Box-6: Case Studies on economic exploitation
1. Savita is 15 years old and has been working as a domestic worker since she was seven. She
is an orphan with a younger sister who also works as a domestic labourer. Although they do
have relatives, they receive no support from them and survive on their own earnings.
Savita works 7-8 hours per day for a single employer and is paid Rs 600 per month. Although
she feels she should be paid more, she is afraid to ask for a raise for fear of being fired and
she cannot afford to be out of work even for a short while.  Her employers are aware of her
need and as a result feel free to treat her badly, though only verbally. She is constantly
accused of being clumsy and not working properly. Six months ago she was accused of
stealing money from the house and although she vehemently protested her innocence, she
was not believed and was forced to pay back the money under threat of calling the police.
For five months she was not paid any salary at all.
Savita regularly attends NFE classes and is eager to learn because she feels that learning
might give her some protection from being cheated by employers.  She is keen on studying
English in particular – though mostly that she can understand what her employers say when

104
they abuse her.
2.   Laxmi is 13 years of age and is the sole regular earning member of her family, supporting
her parents, a brother and a sister.  Her father used to work for a contractor tarring roads
until he took ill and could not continue working.  Laxmi’s mother does not go out to work;
her older brother only works occasionally, spending most of his time loitering in the
neighbourhood. The younger sister gets occasional work as a temporary construction
worker but only when the job site is close to home.  Laxmi herself has taken her father’s job
in tarring roads.
She is not happy doing this kind of work but she feels that there is no alternative. She also
believes that it is her and her sister’s responsibility to look after the family if the males
cannot or will not work. She works for 10-12 hours per day and often has to do night shifts
since work is easier with less traffic and also pays higher wages.  It also provides, however,
greater risks of sexual harassment by the contractor and she has to endure touches and
suggestive conversations. She does not think of changing jobs as she expects other
contractors to be the same.
Laxmi likes to play but is usually too tired when she gets back from work – especially since
she has to help her mother with the housework.  When on a night shift, she sleeps for a few
hours and then has to work in the house.  Her eyes are invariably red from lack of sleep and
the fumes from the hot tar.  She says she feels very weak but has to go to work for the sake of
her family.   Her dream is to live in a family where the parents are well and able to go to
work, where her brother has a good job and all she has to do is look after the house and play
for the rest of the time.

3.6.1.11 Recommendations:
3.6.1.11.a The government should withdraw the declaration it made with respect to
article 32 of the Convention.
3.6.1.11.b Poor families should receive subsidies to pay for transportation, school
uniforms, stationery etc.
3.6.1.11.c Public spending on education should be increased to at least 6 per cent of
GDP to increase the number of and the equipments and facilities in schools.
3.6.1.11.d Public expenditure in the agricultural sector needs to be increased, especially
with regard to infrastructure and irrigation to fight rural poverty and
unemployment more effectively.
3.6.1.11.e The government should initiate public employment programs for the rural
poor in close cooperation with local NGO’s.
3.6.1.11.f The implementation of a social safety net and reasonable land reforms are an
additional necessity to fight poverty and the supply of child labour.

The statistics and data used in this report were obtained from the following sources:

1)
Statistical data on education:

a)
The Indian Ministry of Education.
b)
The Indira Gandhi Institute of Development Research.
c)
The Economic Times Intelligence Unit (ET Intelligence Unit).

2)
Data on allocation of budgetary resources:

a)
The ET Intelligence Unit.
b)
The India Development Report 1999/2000, published by the Indira Gandhi Institute of Development
Research.

3)
The data on birth registration
was obtained from MICS 2000.

105
4) The data on temporary family care and adoption was provided by the Family Service Centre (FSC),
Mumbai and the Indian Association for Promotion of Adoption & Child Welfare (IAPA), Mumbai.

5)
The data on children with disabilities
was provided by the Tata Institute of Social Sciences (TISS).

6)
The data on the inadequate standard of living
was provided by Youth for Unity and Voluntary Action
(YUVA), Mumbai.

7)
The data on child labour was obtained from
:
a)
The India Development Report 1999/2000, published by the Indira Gandhi Institute of Development
Research.
b)
The International Labour Organization’s Web site (at www.ilo.org
).
c)
The Indian Ministry of Education.

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