child rights

UN Drops India From ‘Children and Armed Conflict’ Report Over ‘Improvement’ in J&K

The report released on June 27 said India has been “removed from the report in 2023” in view of measures taken by the government to “better protect children”.

New Delhi: UN Secretary-General Antonio Guterres’ report on children and armed conflict does not include India for the first time in 12 years, the Indian Express reported.

Earlier, India was a part of the ‘UN Children and Armed Conflict report’ – alongside Burkina Faso, Cameroon, Lake Chad basin, Nigeria, Pakistan and the Philippines – over the alleged recruitment and use of boys by armed groups in Jammu and Kashmir and their detention, killing and maiming by security forces, the Indian Express report said.

The latest report released on Tuesday, June 27, said India has been “removed from the report in 2023” in view of measures taken by the government to “better protect children”.

Officials of the Ministry of Women and Child Development (WCD) said on Wednesday that this became possible due to the introduction of various policies and institutional changes since 2019, according to the Indian Express.

Also read: Detentions, Lack of Opportunities and Deteriorating Mental Health: Report Sheds Light on J&K Kids

However, in a Special Report released in 2022, the Forum for Human Rights in Jammu and Kashmir comprising Justice A.P. Shah, former Chief Justice of the Madras and Delhi high courts, Gopal Pillai, former government of India home secretary and many other judges, activists and lawyers had highlighted violations of human and child rights in Jammu and Kashmir with special attention to the latter.

The 2022 report states that teenagers continue to be harassed, picked up for questioning and are illegally detained, in complete violation of the Juvenile Justice (Care and Protection of Children) Act, 2015, The Wire had reported.

An August 2021 news report mentioned by this study said that at least nine minors between 14-17 years old had been illegally detained by the police. Several of the detained minors were beaten up or imprisoned for weeks, the report said.

The report also points out that Cordon and Search Operations (CASO) carried out by the armed forces use children even though they are protected against detention and arrest.

The violation of child rights in Jammu and Kashmir had also prompted the United Nations Security Council to express concern over ‘grave violations against children’ in a May 2021 report, The Wire had reported.

Meanwhile, the WCD Ministry, in a statement said, “The Government of India had been consistently engaged in efforts to exclude our country’s name from this ignoble list. The ongoing engagement of the Government of India with the Special Representative of the Secretary General (SRSG) sped up after an inter-ministerial meeting was held in November 2021” and it “led to an agreement to appoint a national focal point to identify priority national interventions to enhance protection of children, joint technical mission to hold inter-ministerial, technical-level meetings with the UN to identify areas of enhanced cooperation for child protection”, the Indian Express reported.

According to the statement, the technical team of the office of the SRSG visited India on July 27-29, 2022. This was followed by a workshop on strengthening child protection, held in J&K in November 2022 by the WCD Ministry in collaboration with the Ministry of Home Affairs and the J&K government with the participation of the United Nations.

Why Do Children Turn to Crime?

‘It was friendship, ma’am,’ is how many children will describe what made them step into the world of crime.

The greatest challenge that every one of us who works with the juvenile justice system faces is keeping the balance between being fair to both the CICL [child in conflict with the law] and the victim. There are some rare cases of gruesome murder or brutal sexual assault that have to be handled with care and sensitivity.

Reflecting on her inner turmoil, Bipasha Roy [a former member of JJB in Kolkata] says, ‘While talking to a CICL, conflicting emotions would rage in me. I would be torn between detaining the offenders in the Observation Home and at the same time talking to them gently to assuage their fears and apprehensions. With experience I could control my emotions as the child’s vulnerability and helplessness would soften my stance. I realized, after years of delving into the backgrounds of so many children, that most of them never got the opportunity of imbibing good values. Their life was a big struggle to survive. With no roof over their heads, or even the certainty of two square meals a day, often with no parents or guardians to take care of them…it was difficult, almost impossible grow into well-behaved, mature adults.’

‘Juvenile, Not Delinquent: Children in Conflict With The Law’, by Enakshi Ganguly, Kalpana Purushothaman, and Puneeta Roy, Speaking Tiger, 2023.

What one finds when interacting with the children is that the effects of poverty are often compounded by peer influence.

It has in fact been isolated by several studies as a major factor that predisposes offending children to criminal behaviour. The fact that many among the children who end up in the system are in a severe state of deprivation only encourages the formation of gangs. It is through these gangs that the young people acquire criminal behaviour. It isn’t hard to imagine why there is far higher likelihood of delinquency among young people belonging to a gang than those who are not.

A young boy of about 8-10 years, we’ll call him Sonu, along with another friend of 14-15 years, was having a good time till they were apprehended by the police. The mother of the young boy worked in a high-ranking civil servant’s house as a maid and the father worked in a private company. Sonu and his friend, who also lived in the neighbourhood, would leave home every morning with their bags full of books, ‘apparently headed for school.

However, instead of going to school, they would walk around identifying houses where everyone had gone out. Perched on his older friend’s shoulder, Sonu would enter the homes through windows or balconies. After stealing whatever small items they could carry in their bags, they would go to some scrap dealer, sell them and then buy guavas, ice cream, chocolate, etc., eat them and go back home.

The parents were both illiterate and too busy to ask about their school activities. Soon the boys felt more emboldened and started stealing more expensive things as well. The complaints in the neighbourhood about the thefts increased and the police were alerted. One day, as Sonu was trying to climb into a house through a kitchen window, perched on his friend’s shoulder, the police arrived. The older boy ran away leaving Sonu to be caught by the police. Later, the older boy was caught too. There was a lot of pressure from the government officials whose houses had been stolen from by Sonu and his friend that they be ‘punished’.

But the JJB magistrate, after hearing the details of the case, decided to have a ‘chat’ with the boys. They both pleaded guilty and promised that they would go back to school, upon which they were handed over to the parents.

‘Friendship thi, ma’am’ (It was friendship, ma’am), is how many children will describe what made them step into the world of crime.

This was what was repeated to me in a recent visit to a Place of Safety (PoS) where the older boys are housed. Ranjan (name changed) could not hold back his tears, and nor could we. He was in school and was doing fairly well. He made friends with Kunal (name changed) who convinced him to pick pockets. On the fateful day they picked a fancy cellphone from someone’s pocket. As luck would have it, the pocket was that of a police officer who managed to catch Ranjan. He said he had been taken to the police station and even tortured but he did not reveal Kunal’s name. The reason? Kunal was not a very good student and was already behind in class. He was over 18 and if caught would be sent to adult prison. Ranjan did not wish that for him, so he took on the blame alone. His loyalty to his friend was moving. It also showed his strength of character. But his story also confirms how peer pressure, or ‘friendship’, remains one of the many reasons for children to get into the world of crime.

Also read: The Supreme Court Also Needs to Protect the Rights of Children Who Protest

Richa Arora, in a report titled ‘Study of Children in Conflict with Law’ in Delhi, which she wrote for TISS, spotlights residence as a key determinant of child delinquency. A child who witnesses crimes in his surroundings and neighbourhood becomes accustomed to such actions and learns from them. The area where the child lives, the surroundings and the socio-economic status of people around, play an important role in determining what the child is exposed to and what his/her actions might be.

Jagdeep has been in and out of the system for a long time. Beginning with offences of lesser gravity, this time he was in for murder. It’s his ‘family honour’ that he must protect, he said. He had in fact been convicted for not one but several murders, which he committed to save his family’s ‘honour’ in a property dispute. When I met him, his older brother and father were in jail, and Jagdeep was in a PoS. It is quite clear that he does not think he did anything wrong, and nor does he think have his father and brothers. In fact, his family is proud of him.

One can only imagine how much worse it might be when the violence is not just in the surroundings but is directed specifically at the child.

Enakshi Ganguly has been involved in research, advocacy and training on a wide range of human rights issues, such as displacement due to development, child rights, women rights and those concerning other marginalised groups since 1985. She is an Advisor at HAQ: Centre for Child Rights, which she founded in 1998 and co-directed till 2018.

The above is an excerpt from Juvenile, Not Delinquent: Children in Conflict With The Law, written by Enakshi Ganguly, Kalpana Purushothaman, and Puneeta Roy, and published by Speaking Tiger in 2023.

Bombay HC’s Recent Remarks While Granting Bail to a POCSO Accused Are Concerning

The court said that the Act was not intended to punish minors in consensual relationships and brand them as criminals. However, the judge appeared to ignore crucial details about the case while making this statement.

On April 26, 2023 the Bombay high court, in bail application no. 997/2022, made a heavily loaded observation while granting bail to Imran Iqbal Shaikh – that the Protection of Children from Sexual Offences (POCSO) Act was not intended to punish minors in consensual relationships and brand them as criminals. This comment by Justice Anuja Prabhudessai was widely reported in the media.

The facts of the case, as per the FIR, are that the 17-year-old victim left her house on December 27, 2020. The victim’s mother (complainant) filed a case of kidnapping at the Dindoshi Police Station. The victim’s statement reveals that after she left the house, she stayed with her friend for two days. Thereafter during the day she roamed on the streets and at night she slept in a rickshaw. On December 29, 2020 while she was sleeping in the rickshaw, the accused called her to the terrace of an SRA building near Kodarmal Masjid, demanded money from her and then had forcible sexual relations with her. Again on January 7, 2021 the accused called her to the terrace of a building near Sanjeevani Hospital and had sexual relations with her. On January 12, 2021, the victim was walking near her college. Her teachers who saw her called her parents. Later on February 18, 2021 a case under the POCSO Act was recorded.

On June 14, 2021, the sessions court, Mumbai rejected the accused’s bail application, observing that the accused was a habitual offender. (In 2018, a case under the POCSO Act was recorded against the accused. In that case the accused had on multiple occasions raped a 15-year-old girl who was working in a bangle factory. The crime took place at his home and also at a lodge. In December 2018, the accused was granted bail by the session court, Mumbai on account of various lapses by the police – medical report not legible, reason for delay in filing FIR not mentioned, registers of the lodge not collected etc.

On January 19, 2022, the sessions court, Mumbai again rejected the second bail application of the accused, stating he is habituated to committing this crime and had committed the same crime within two years. The accused may repeat the crime with other minors, threaten the victim and her family and may also distribute objectionable photographs. Since the accused had no permanent place of residence, there was an additional apprehension that he may flee the city.

On October 15, 2022, the sessions court, Mumbai rejected the discharge/bail application of the accused for the third time. It is interesting to note that on this occasion, the accused came armed with an affidavit by the victim stating that the relationship was consensual and that she wishes to take the case back. In spite of this, the sessions court, Mumbai deemed it fit to reject the bail application of the accused.

Also read: To Tackle Rising Cases of Child Sex Abuse, the NCRB Must Address Gaps in POCSO Data

One then wonders what prompted the Bombay high court to grant bail to the accused. especially since the sessions court had on three occasions by two different judges rejected his bail application? And more importantly, why did the high court charged with the responsibility of protecting all minors make this highly inappropriate comment, given the circumstance of the said case?

Our experience while working at Majlis, an organisation that provides legal and social support to victims of sexual violence for over 10 years now, has given us an in depth understanding about what goes on behind-the-scenes in rape trials. Our close interactions with child sexual abuse victims reveals that they face multiple marginalisations and grave pressure from the accused and his high-profile lawyers, because of which most victims are forced to turn hostile.

Did the Bombay high court consider why in a consensual relationship, the minor victim was roaming the streets by day and sleeping in a rickshaw at night for almost two weeks?

Did the court consider that the accused is a repeat offender, and what could be the repercussions of granting him bail? As ‘parens patriae’ did the high court consider the best interest of the child victim?

The accused by his own admission was 21 years of age in 2018. How then can he be only 22 years of age in 2021, when the second POCSO case was filed? The fact is that the accused is at least 24 years of age and a repeat offender. Can he be termed as a minor as the high court observation suggests?

What was the pressure put on the victim and her mother that she gave an affidavit to the accused stating she wanted to withdraw the case?

While bail is a right of the accused and we absolutely support granting of bail in appropriate cases, it is the arbitrary comments by the court that are of deep concern. What is the message that the high court is sending to the lower courts and the police? It is a dangerous trend to look at all sexual violence cases, especially where the victims are minors, as consensual, because rarely are these cases about love and romance – there is a whole lot of abuse thrown in.

Advocate Audrey Dmello is the director of Majlis, a legal centre for women and children.

The Pandemic and Lockdown Have Been Catastrophic for India’s Pre-Schoolers

The effect of screen time on the youngest generation, especially in their formative years, needs urgent redressal.

The results of the first post-pandemic Annual Status of Education Report (ASER) are out but the situation may be even worse than what the 2023 survey has captured.

As an educationist of 45 years standing, the question I ask myself is – Are we on the brink of losing a whole generation? I am serious when I pose this question. It bothers me, fills me with anguish to see what we adults are allowing to happen to our children, irrespective of the age bracket they belong to. Mobile, screen time exposure is having a catastrophic effect on them. The worst hit are the ones born a few years before or during the COVID-19 period. What will happen to them, when they reach their puberty, teens, adolescence, is beyond comprehension.

We, at Mothercare School, have had pre-schoolers coming to us for the last 45 years. We have never before witnessed what we get to see now. Children who are unable to speak, interact with others, focus, relate to others, socialise, share. Their cognitive ability is lacking, they do not have the required fine or gross motor control. In fact, we find quite a few cannot chew or swallow solid food. Most of them throw tantrums if not given what they want. Some, even at the age of 5/6 years, are speaking a mix of Korean, English, Hindi which no one can understand. Why? These kids have got addicted to Korean or other language cartoons and that’s the mixture of garbled language they can speak, which no one, not even their parents or speech therapists, can understand.

Also read: ‘Exams as War’, ‘Focus on Science’, Boys Shown More: Report on Edtech Ads Flags Concerns

Some little ones do not sleep before midnight because of their addiction and get up by noon the next day. The COVID-19 period was an abnormal one for middle-class families. With work from home, no domestic help, ailing, dying family members, financial setbacks…. these kids were left to fend for themselves, often with a mobile device handed over to them. It starts with parents saying we only give them the mobile while feeding them. The children don’t open their mouth to eat, till they have a mobile in their hand. Blackmailing learnt at a very early age.

The screen time saga has begun, regardless of what damage electromagnetic waves do to the fast, multiplying brain cells of the child. Even now, with both parents working, breakdown of the joint family system in India, or elderly ailing older generation at home and kids left in care of maids who use their own, mobiles as pacifiers for the kids, watching their own favourite TV programmes. The little one quiet and manageable with her or his hand-held mobile. Everyone is happy but clueless about the permanent damage to the young child.

Is there nothing that can be done? This issue needs to be taken up on a war footing. What we have found to work is to get the kids engaged in things – more interesting activities, interaction with other sensitive adults and children. We humans are gregarious animals and we need human one-to one interaction. The children need varied stimuli for each and every development area. They need the human touch in every stimulus providing activity. The virtual kind makes us into isolated beings lacking in human traits.

Watch: ‘Once in a Century’ Crisis as Schools Struggle to Make Up for COVID Learning Loss

If we cannot give time and inputs needed by these little ones at home – in these formative years of their life, when 95% of brain development and personality traits get ingrained – we should look for a good pre-school/day care facility, one that is a home away from home. A place where personalised attention is given and conscious effort made to fill in all the gaps mentioned above. Children should have the opportunity to try their hands at different activities. And adults must be able to see what game, sports, music, art, dance, dramatisation, story narration, interests the child. What inherent talent, attributes, does the child have. What is her or his god given gift. An early start with sensitive teachers who can sow the seeds of interest, which can, someday, perhaps, become a career for them. The seed gets sown in a child-friendly way, at this formative stage.

Blank faced toddlers with mobiles in their hands. Our future generation is too precious. This whole problem requires in depth research, study and an effort to find constructive solutions. This is a wakeup call to all of us educationists, parents, schools and apex bodies. Act before it’s too late.

Shobha Dev has been running Mothercare School in Lucknow for the past 45 years.

Whose Vikas Is it, Anyway?

I refuse to accept that in India, we do not have sufficient money and resources to provide basic accommodation and education to all children under 14; it is simply not true.

After almost 20 years, I have had the opportunity to travel around Delhi, where I worked in many export firms as a migrant worker from Kerala in my early 20s. I was curious to see the developments projected by the political slogans and rhetoric of India Shining, Make in India, Digital India and, of course, Sab ka Saath, Sab ka Vikas.

How can you claim sab ka saath sab ka vikas when at every red light, children appear from every direction to sell a pen, flag, or even a Santa (during Christmas). I asked why they weren’t at school; their replies were simple smiles, depressing and painful. I saw a girl aged 13 or 14, carrying a toddler and begging at another red light. Seeing children selling fruits outside the child welfare centre was depressing and shocking. It was deeply disturbing to see a girl in such weather without proper clothing. Whose India is shining? These poor children’s, or of those who can afford every luxury in India?

The Constitution of India (Article 21A): ‘The State shall provide free and compulsory education to all children of the age of six to 14 years’ and ‘the right to education is held to be a fundamental right under Article 21; every child has the right to free education up to the age of 14 yrs’ (Unni Krishnan JP and others vs State of Andhra Pradesh, AIR 1993 SC 2178). ‘We have to be very strict in maintaining high academic standards and maintaining academic discipline and academic rigour if our country is to progress’: Orissa High Court, 2011.

Also read: How Karnataka’s ‘Preventive Protocol’ Could Help in Retaining All Children in School

The Directive Principles of State Policy (Article 39): ‘That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment’.

The Universal Declaration of Human Rights (Art 26): ‘Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory… Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms’. Why are these children not part of the process? Are they not State subjects? Without them, how can we claim that India shines ― sab ka saath sab ka vikas? Rather interestingly, the constitutional right to education is a fundamental right in DPSP and in UDHR, which India signed and ratified; bypassing all these, our government is now discussing directly or indirectly the implementation of Article 351, which is to promote the spread of Hindi, which is only a directive.

In the UK, parents would be prosecuted by the local authority if a child under 16 is not regularly attending school. We should, at least, provide sufficient resources for families, mainly accommodation and food. Unlike in India, where the government sees everything in terms of Hindu, Muslim and minorities, in England, all local authorities build more social housing to ensure that no one faces homelessness. The local authority is responsible for education. If it fails to ensure that all children get full care and support, then it would be prosecuted; the classic example is the case of Baby P.

I refuse to accept that in India, we do not have sufficient money and resources to provide basic accommodation and education to all children under 14; it is simply not true. Why is the State not working to ensure that all children get compulsory education? Is it not a fundamental right? Why is the State pretending that these children do not exist in India, even in the capital? Are they not part of the sab ka saath sab ka vikas slogan?

Also read: How Children With Special Needs Are Being Left Out of Mainstream Education in India

In Jhandewalan [where, incidentally, the RSS HQ is located], I saw a cycle-rickshaw with a few dirty blankets piled underneath. I waited almost an hour to see what would emerge from them, and I was shocked to see that it was the rickshaw-puller, who had to sleep on the pavement. Would we call it sab ka saath sab ka vikas? Indeed, I would not.

Is it not that the government has only guaranteed that some children get compulsory education, even in the capital city of India, and other children’s fundamental rights are violated? How could they spend on PR for the Make in India, Digital India and Sab Ka Saath campaigns when these poor children are denied primary education? I have not seen a shining India – or sab ka saath sab ka vikas – but a shocking India in which live the working population and the children of the poor. If the government had spent half of what it does on PR, all these children at the red lights would have received education.

Our nation requires urgent attention to these issues and critical reforms to build more social housing where every citizen has shelter. And local panchayats must be given control of education; they can provide sufficient support to children.

Baiju Thittala is a solicitor in Cambridge, UK, and Labour councillor for East Chesterton. He drew attention to racist English language requirements for non-EU nurses in the UK.

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.

Child Rights Body Asks Magistrate to Inquire Into Children Protesting Against Evictions in Haldwani

NCPCR chairperson Priyank Kanungo said that the involvement of children in protests violates the Juvenile Justice (Care and Protection of Children) Act, 2015.

New Delhi: The National Commission for the Protection of Child Rights (NCPCR) has asked the Nanital district magistrate to “look into the matter” of children participating in protests in Uttarakhand’s Haldwani against their eviction from homes.

According to Deccan Herald, NCPCR chairperson Priyank Kanoongo said that the involvement of children in protests violates the Juvenile Justice (Care and Protection of Children) Act, 2015 and asked the Nainital district magistrate to inquire into the incident and submit an action report within seven days.

Thousands of families – most of them belonging to the Muslim community – in Haldwani were protesting against an order issued by the Uttarakhand high court allowing the railways to evict them from their homes. While the railways claims that the land belongs to them, the residents have disputed the claim and say they have ownership documents. The Supreme Court on Thursday, January 5, stayed the order.

The NCPCR letter said that it has observed that minor children are being used “by the perpetrators for illegal protest”.

“In the photographs that have been uploaded on social media, children are clearly seen sitting with banners in their hands in the protest. It is pertinent to mention that children of tender age have been brought to the protest site in these adverse weather conditions which can prove to be dangerous for their health and wellbeing,” the letter, dated January 5, says, according to Deccan Herald.

Curiously, the NCPCR has not expressed any concern at the prospect of thousands of children becoming homeless if the evictions in Haldwani are carried out.

“It is pertinent to mention here that the Commission on earlier occasion has observed that use of children in such illegal protest has resulted in injury and even caused the death of minor children in one of the protests,” the letter adds.

The children who are participating in protests should be identified and produced before the Child Welfare Committee if required to ensure their safety, Kanoongo wrote, according to Deccan Herald. The parents of the children may also be counselled if the need arises, he said.

During the protest in Shaheen Bagh against the Citizenship Amendment Act (CAA) too, the NCPCR had written a similar letter to the district magistrate. It claimed that children might be “under influence of rumours/miscommunication” during the protests and as a result may be suffering from “mental trauma”.

How Karnataka’s ‘Preventive Protocol’ Could Help in Retaining All Children in School

The state’s RTE protocol on out-of-school children is the first in the country. It has incorporated the provisions of the Articles of the United Nations Convention on the Rights of the Child into its own rules.

“This is a very, very good petition,” a bench headed by the then Chief Justice of India had said in 2018 while admitting a plea filed by Akhil Delhi Prathmik Shikshak Sangh, a registered society of primary school teachers.

The society had sought the implementation of the fundamental right to education of 3.5 crore poor children, aged between six to 14 years, who were out of school in the country, as per an India Today report on January 29, 2018.

In November 2018, another CJI of the Supreme Court heard the same case. However, he dismissed the plea, saying, “Don’t expect miracles. India is a huge, huge country. Priorities are many, and certainly, education is one of the priorities.”

So what happened to Article 32 of the constitution of India in the case of these 3.5 crore children who were denied their fundamental right to education? According to B.R. Ambedkar, Article 32 “is the heart and soul of the constitution” and rights given through it would always be exercised in the Supreme Court.

Before the 1970s, only the affected parties had the locus standi to file the case, which means that any one of the 3.5 crore children deprived of his/her right to education could have moved the court. However, this principle changed after the Emergency period.

Legal experts had opined that a public interest litigation need not be filed only by the affected person whose rights have been violated, but it can be filed by anybody for the benefit of the public at large.

In such cases, experts said that either the Supreme Court could take cognisance of the matter and proceed suo moto or hear a petition on behalf of an individual for the public benefit. It is obvious that none of the 3.5 crore out-of-school children would have had the necessary resources to move the court for restoration of their right to education. So, a public-spirited organisation moved the court on their behalf.

However, the outcome was no doubt a tragedy.

What is of greater concern is that the latest estimates put the number of out-of-school children even higher. The 2020-21 report by the Unified District Information System for Education (UDISE) Plus, available on the education ministry’s website, shows that the net enrollment ratio of classes 1 to 5 was 92.7% and it was 74.1% for classes 6 to 8 in the given period.

An analysis of the data says that about 7% of children aged 6 to 11 years and nearly 25% of children aged 12 to 14 years are out of school and will not have completed even eight years of compulsory education.

This means, as per the 2011 census figures, that almost 5.5 crore children, out of the approximately 23.3 crore children of compulsory school aged 6 to 14 years, are not enrolled in upper primary schools.

In 2002, the 86th constitutional amendment made the right to education a part of the fundamental right to life under Article 21A, and the Right to Free and Compulsory Education Act was passed in 2009.

Representative image. Photo: Reuters

But the question is, why 3.5 crore children, or 5.5 crore as per the latest UDISE data, remain out of school despite Article 21A and the RTE Act, 2009?

It appears that the elevation of the earlier Article 45 of the constitution on ensuring free and compulsory education within a period of 10 years, which was only a directive principle of state policy, to the status of a fundamental right, making it justiciable under a court, has not brought a difference in the state’s approach, ensuring that the child is compulsorily educated.

Section 4 of the RTE Act has a ‘curative’ approach of ‘rehabilitation’ rather than a ‘preventive’ approach of ‘compulsory retention’ of the child. It thus reads: “Special provisions for children not admitted to, or who have not completed, elementary education: Where a child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age.”

The section further “provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time-limits, as may be prescribed.”

The above provision presumes that a child has been out of school for a long period and will require bridge courses. The RTE Act has no statutory provision/protocol for preventing a child from dropping out.

Based on the above provision in the RTE Act, the definition of a ‘drop-out’, for instance, in Karnataka was: “Any child remaining absent in excess of 60 days in any academic year (excluding medical grounds) and not presenting himself to school thereafter.”

Most of the other states too define a drop-out in a similar fashion. With such a definition of a ‘drop-out’, a child could remain out of school for months together violating his/her inherent right to life under Article 21A, and concomitantly his/her right to education. Such children are being rehabilitated after they become drop-outs and child labourers over long periods of time.

Tent schools, bridge schools, non-formal schools, flexi-schools, etc., continue as parallel streams to rehabilitate them in violation of the UNESCO Convention on non-discrimination in education.

Also read: Realising a Child’s Right to Education: Going Beyond the Brick and Mortar

A preventive or a rehabilitative approach?
“Though most schools begin their academic year in May or June, the Ministry of Education has been recommending (MHRD Guidelines of 2009), and the states too have been conducting surveys many months later, mostly in December and January, to identify children who have never been enrolled or who have dropped out after the academic year started.
The surveys identify the out-of-school children months later, put them in remedial teaching courses during summer and place them back in formal school in the next academic year.

However, there appears to be no guarantee that all the identified out-of-school children would undergo the rehabilitative programmes and that the rehabilitated children will not drop out again (more than 50% of them drop out again, as per studies).

The most glaring lacuna in the RTE Act is that no one in the government is held accountable for a child that is out of school for such long periods, though ensuring a fundamental right is the State’s responsibility. A law that holds no one responsible and foresees no punishments for its violation cannot be termed as an effective law.

A former labour minister of Karnataka indirectly exposed the futility of the ‘curative’ approach of conducting bridging programmes. Under the state’s child labour action plan, only 1.08 lakh child labourers were mainstreamed over a 12-year period. Children would have crossed 14 years of age before getting rehabilitated under this programme. This indicates the impossibility of rehabilitating through a ‘curative’ approach the lakhs of out-of-school children given at any time.

The ‘curative’ bridging programme is like bailing out water with a ladle while the boat is filling up through leaks. Unless the ‘leak’ is first plugged metaphorically, any amount of bridging programmes will be futile.

A study conducted by the Azim Premji Foundation in June 2012 found that a majority of parents and children have cited economic compulsions as the reason for children dropping out. However, the RTE Act merely says under Sections 8(c) and 9(c) that the appropriate government or local authority shall “ensure that the child belonging to a weaker section and the child belonging to a disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds”. But the RTE Act and most State rules do not say how this is to be done.

As per Karnataka’s RTE Rules, 2012, Rule 4(9) merely states: “The CPI (commissioner for public instruction) or local authority shall ensure that access of children to the school is not hindered on account of social and cultural factors.”

Though the Supreme Court failed to take suo motu action under Article 32 to restore the fundamental right of the 3.5 crore out-of-school chidlren across the country in 2018, as earlier mentioned, it is heartening that the Karnataka high court had taken up a suo motu PIL in 2013 itself (WP 15768/2013) to bring all these children back to school in the state.

A bench of then Chief Justice D.H. Waghela and Justice B.V. Nagarathna had issued a notice to the Karnataka government, saying: “Upon perusal of a report published in The Hindu on March 31, 2013 titled The Glitches that dog RTE implementation that about 54,000 students are still out of school in Karnataka, it is deemed appropriate to take suo motu proceedings with respect to the reported violation of fundamental right of children to primary education.”

This pioneering initiative of Karnataka through this still on-going suo motu PIL has moved away from the curative, rehabilitative approach and introduced a ‘preventive protocol’ into its RTE Rules for retaining children in school and ensuring that their fundamental right to free and compulsory elementary education is ensured continuously. This makes the rehabilitative bridging programmes unnecessary. Most other countries’ compulsory education laws mandate such a preventive approach.

The PIL brought about a change in the definition of a ‘drop-out’. The earlier definition of a ‘drop-out’ mentioned above was revised and was brought down to “a child with unexcused absence of seven days” so that action to prevent the child from becoming a long-term drop-out would be initiated immediately on the first signs of the child dropping out.

There needs to be better linkage between education and development activities in rural India. Credit: Unsplash/pixabay

Representational image. Credit: Unsplash/pixabay

Next, Rules 6A to 6D, spelling out a protocol to be followed by a designated authority to bring the child back to school, were added to Rule 6.

In summary, the amended Rules say the following:

To overcome the lacuna in the RTE Act which fixes no accountability on a specific government official for ensuring that no child drops out, education coordinators (ECOs) at the cluster level were designated by Karnataka as attendance authorities to initiate action within seven days of a child dropping out and bring back every child to school within a time-frame to fulfil the state’s duty to protect the Fundamental Right of a child to education.

To address the lacuna in the RTE Act which fails to outline how the economic, social or cultural barriers faced by a ‘vulnerable’ child, which may be belonging to a disadvantaged section or to a weaker section should be addressed, the protocol addresses the root cause of a child dropping out in the following manner. If persuasion of parents to send their child to school fails, attendance authorities have to bring these children and their parents/guardians before the Child Welfare Committees (CWCs) set up under the Juvenile Justice Act at the district level.

The CWC has to conduct an enquiry as to the reasons for the child dropping out and provide suitable assistance to the family by converging any necessary assistance/benefits available from various departments on the family to enable them to send the child to school.

If a child still does not come to school even after parents receive suitable assistance, the CWC has to take charge of the child as “a child in need of care and protection” under the Juvenile Justice Act and admit her to a free government residential school; or send her to a fit institution, foster home, etc., to ensure her fundamental right to education, all within a time-frame.

The above protocols are in line with an earlier Karnataka high court ruling by Justice V.P. Mohan Kumar in 1997 in A. Sriram Babu v/s Chief Secretary [June 6, 1997 in W.P. 1351 of 1997]. This judgment stated: “….. the guardianship of a minor vests in the sovereign, i.e., the State…… The Sovereign had entrusted the guardianship to the parents. If they fail, the Sovereign can resume the right.”

So far, this judgment that the State should take charge of minors who are denied rights by their parents had never been implemented. The court intervention in WP 15768/2013 implemented this ruling, reinforcing the State’s responsibility.

A unique model

Karnataka has also formulated a policy for the education of children of migrant workers – one of the first in the country. The state’s RTE protocol on out-of-school children is also the first in the country. It has incorporated the provisions of the following Articles of the United Nations Convention on the Rights of the Child (UNCRC) into its own Rules:

Article 28: Free and compulsory elementary education ‘on the basis of equal opportunity for all children’. This means that a child has to attend formal school, and evening classes, flexi-schools, tent schools to accommodate child labourers is not acceptable.

Article 18(2) and 19: When parents are unable or unwilling to provide the rights of children, the state should assist them in fulfilling their child-rearing responsibilities.

Article 9(1): A child may be separated from its parents, in accordance with applicable law and procedures, when such separation is necessary for the best interests of the child.

Inclusion of the above UNCRC provisions into Karnataka’s RTE Rules on out-of-school children is unique in the whole country. Since a high court ruling in any state applies to all other states, the changes brought about through WP 15768/2013 were submitted by CIVIC Bangalore as recommendations for adoption across India through the New Education Policy (NEP).

However, no positive response was received from the Education Secretariat or the committee drafting the NEP on this matter. If it had been adopted by the NEP and built into the Central RTE Act through amendments, it could have been replicated and upscaled to the entire country to ensure the right to free and compulsory elementary education of the almost 5.5 crore children currently out of school in the country.

Also read: The NEP Goes Against the Existing Constitutional Mandate of the RTE

Below are the details of the ‘preventive protocol’ for retaining all children in school through the amendments made to Rule 6 of Karnataka’s RTE Rules

Rule 6A (1): Education Coordinators (ECOs) in every cluster designated as Attendance Authority (AA) (government official) to be accountable for ensuring 100% UEE.
Rule 6A (2): To prepare VER/WER one month before school opens. The Attendance Authority to issue Attendance Notice to all parents whose children are eligible to come to school.
Rule 6B(1): If child fails to join or come to school for 7 days, within next 3 days, HM to make enquiries and if no reasonable excuse for non-attendance exists, to inform AA within next three days.
Rule 6B(2)- Attendance Notice: AA to make enquiries and if no reasonable excuse for non-attendance exists, to issue Attendance Notice to parents and take acknowledgement
Rule 6C: Reasonable excuses for non-attendance – child enrolled elsewhere, or disasters, riots, etc. preventing child from coming to school.
Rule 6D(1): Measures to ensure compulsory attendance – AA to work in conjunction with Grama Panchayat members/municipal Standing Committees on Education, School Development & Monitoring Committees, NGOs to conduct enquiry and persuade parents.
Rule 6D(2): Attendance Order – If child fails to come to school even after persuasion of parents (time-frame fixed at two weeks), AA to issue Attendance Order to parents to appear before Child Welfare Committee at district level under JJ Act on specific date.
Rule 6D(3): AA’s to take SJPU’s help, if necessary to bring these children and their parents/guardians before Child Welfare Committees (CWCs).
Rule 6D(4): CWCs to conduct enquiry with parents and find out reason for non-attendance of child.
Rule 6D(5): CWC to provide suitable assistance to the family by sanctioning conditional scholarships based on eligibility criteria and /or converging benefits of various departments on the family and ensure attendance of child in school.
Rule 6D(6): The mitigating factors under which assistance is to be given to the parents to be circulated to CWC.
Rule 6D(8): If child still does not come to school, CWC to take charge of child and admit it to free government hostel/residential school (seats in free hostels are vacant); or Sending them to shelter home, fit institution, foster home, etc. under JJ Act.

Note: The case WP 15768/2013 was taken up suo motu by then Chief Justice D.H. Waghela of the Karnataka high court on April 1, 2013. The author impleaded herself in the case. A high-powered inter-departmental coordination committee under the chief secretary was set up by the high court to listen to her suggestions.

The case is still ongoing to monitor the implementation of these amended rules and ensure that all children are in school in Karnataka.

The writer is executive trustee of CIVIC Bangalore and a party-in-person in the suo motu WP 15768/2013 in the Karnataka high court.

Karnataka: Third Minor Girl Alleges Sexual Assault by Murugha Mutt Head

Shivamurthy Murugha Sharanaru is already under judicial custody till October 21, after he was arrested for allegedly raping two minor girls.

New Delhi: A minor has registered a complaint against Lingayat seer Shivamurthy Murugha Sharanaru for allegedly sexually assaulting her. This is the third such complaint against Sharanaru, who heads the Murugha Mutt in Karnataka’s Chitradurga.

The Karnataka police have registered a first information report (FIR) against him based on the minor’s complaint, the News Minute reported. This is the second FIR against the religious leader.`

Shivamurthy is already under judicial custody till October 21, after he was arrested for allegedly raping two minor girls.

Sharanaru has denied the allegations and called them a conspiracy, BBC had reported.

The fresh complaint was filed by a 12-year-old girl who approached the Mysuru police along with her mother. She alleged that Shivamurthy sexually assaulted her for two years at the residential hostel managed by the Murugha math.

The news report said that the girl alleged that two other girls were also sexually assaulted by the seer.

Also read: Rajasthan: 8 Men Gang-Rape Minor Girl, Circulate Video Online

Stanley, the chief of the NGO Odanadi, which helped the girl and her mother file the complaint, told TNM that it is unclear if the police are going to approach the other two girls for investigation.

An FIR has been registered with the Nazarbad police station of Mysuru city under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

In September, the two minor girls mentioned above filed a complaint against the seer for allegedly raping them repeatedly, respectively. The seer was arrested six days after the FIR was registered against him. He was denied bail five times. In this case, he was also charged under the SC/ST (Prevention of Atrocities) Act along with the POCSO Act.

UP: Minor Who Was Allegedly Gang-Raped Seen Walking Naked on Street in Viral Video

A first information report was lodged on September 7, a week after the incident happened, and one of the accused was arrested on September 15.

New Delhi: A 15-year-old girl, who was allegedly gang-raped by five men in Uttar Pradesh’s Moradabad, was seen walking naked on the street – allegedly after the incident – in a viral video that emerged on social media on September 21, Wednesday.

According to news reports, which cited the police complaint, filed only after a week, the incident happened on September 1 when the girl had gone to attend a fair along with her friend in a neighbouring village.

When she was returning at around 8 pm, five men, who were on two bikes, allegedly kidnapped her and took her to a forest area in Moradabad’s Saidpur Khadar area. All five men allegedly took turns raping her and then they decamped with her clothes.

A man in the vicinity, upon hearing her screams, tried to rescue the girl, after which she walked back home naked.

According to the news agency IANS, instead of helping the girl, some passers-by are seen standing as mute spectators, while others filmed her and shared the disturbing videos on social media platforms.

Incidentally, the girl’s parents didn’t believe her at first, and it was her uncle who registered a complaint in this case, Firstpost reported.

The girl’s uncle told IANS, “She was bleeding profusely when she returned home and narrated the ordeal to us.”

However, when the victim’s uncle approached the police to file a complaint, no action was initiated until he raised the matter before the district police head, the report said.

Also read: Nearly 20% Increase in Rapes Across India in 2021, Rajasthan Had Highest Cases: NCRB

A first information report (FIR) was lodged on September 7, and one of the accused was arrested on September 15, IANS reported.

However, in contrast to the family’s earlier statement, the superintendent of police (rural), Sandeep Kumar Meena, told PTI that the victim and her parents have denied that she was gang-raped. An official alleged that the victim has mental disabilities.

“The incident occurred around a fortnight ago and an accused [Naushe Ali] in the case has been sent to judicial custody. The rape was not confirmed in a medical examination of the woman. The matter is under investigation,” deputy inspector general of Moradabad range, Shalabh Mathur, told the news agency PTI.

The FIR named five accused, later identified as Nitin, Kapil, Ajay, Imran and Naushe Ali, who have been booked under Indian Penal Code Section 376D (gang-rape) and the POCSO Act.

(With PTI inputs)