United Nations Convention on the Rights of the Child

‘Love Jihad’ Laws: No Room for Consent

The politics of ‘love jihad’ has deep roots in our patriarchal society. Individual agency needs a voice, now more than ever.

The chief minister of Uttar Pradesh, Adityanath, has proposed legislation threatening that those engaging in ‘love jihad’ must be prepared to die. Here, the suggestion is that ‘innocent’ and ‘gullible’ girls are forced into marriage with Muslim men and forced to convert in order to do so. It also suggests that the state has the right to step in to protect the girl and honour the Indian tradition of marrying within one’s own network. He has even threatened that boys who engage in this practice would find that their “Ram Naam Satya” (a phrase chanted at Hindu funerals) journey would follow. While without threats of death, other states – Karnataka, Haryana, Madhya Pradesh – are considering similar proposals.

This call is communally-tinged and promotes honour killings. Honour killings occur when a girl is supposedly duped into marrying someone who comes from a family, caste, or religion that is unacceptable to her family or village leadership, thereby justifying action by them to avenge the dishonour caused and to restore the family’s izzat or honour.

Both practices deny women and girls their constitutionally guaranteed right to social justice, liberty of thought, expression, belief, faith and worship, and equality of status. India is a signatory to the United Nations Convention on the Rights of the Child (CRC) (Office of the High Commissioner, United Nations Human Rights Commission, 1989) that calls for ‘free and full choice’ in decisions on when and whom to marry, and these practices also show that we do not honour this commitment.

Girls are seen in need of constant policing

Persisting patriarchal gender norms underlie both honour killings and ‘love jihad’. Girls and young women continue to be perceived as incapable of making informed decisions and in need of constant policing. Marriage continues to be perceived as an alliance between families and not an alliance between two individuals.

In Uttar Pradesh itself, as recently as 2015-16, a state-wide survey by Population Council reports that as many as 40% of young married girls did not participate at all in the decision on when and whom to marry, while 51% simply acquiesced to their parents’ wish. They were typically shown a photograph of the prospective groom, told that ‘he is from a good family’, or felt it was their duty to obey their parents. While a few did have an opportunity to become acquainted with their husband prior to marriage, just 8% made their own decisions. In short, few girls and young women in Uttar Pradesh make informed decisions, and as a result, almost three in five (57%) met their husband for the very first time on the wedding day.

Also read: Ulterior Motive of ‘Love Jihad’ Laws Is to Drive Muslims Out of the Social Ecosystem

This is, of course, not unique to Uttar Pradesh. A largely similar picture emerges from various other recent state-wide studies—for example, in Bihar and Jharkhand, and also in earlier studies across diverse states in 2006-07, including (undivided) Andhra Pradesh, Bihar, Jharkhand, Maharashtra, and Rajasthan.

Girls acquiesce for several reasons, key among them is the fear of losing family support. For instance, girls interviewed in the Young Lives longitudinal study in rural Andhra Pradesh and Telangana made it clear that even when parents asked about their preferences, it did not necessarily mean girls felt able to express their preferences. Meaningful consent is hardly possible. For instance, girls who reported that their family had sought their consent were asked to explain their role in marriage-related decisions. Responses included:

“They asked me one day before the engagement whether I would like to marry him. I said I will accept their decision. I also said that in future if I have any problem with him they have to stand up for me.”

Clearly, girls fear that rejecting their parents’ decisions and selecting a husband of their own choice would compromise their chances of securing the support of their natal family.

The consequences of any deviation from traditional marriage norms – marrying a boy from an ‘unacceptable’ family, caste, or religion – can be severe. The tip of the iceberg is of course ‘love jihad’ and honour killings. There are also threats of resorting to legal action under the Prohibition of Child Marriage Act or the Protection of Children from Sexual Offences Act that subvert young people’s exercise of life choices. Documentation of these threats and misuse of the law is evident from findings of an unpublished study by the Population Council of residents of protection homes in Bihar, a state in which child marriage rates are among the highest in the country, and in which millions of girls enter marriage without meaningful consent.

A large proportion of residents in these homes were girls and young women whose parents had used legal mechanisms to break a consensual marriage, both among under-age and adult girls. An under-age resident reported:

“It was a love marriage. My parents lodged an FIR. They said that their daughter was manipulated and abducted by the boy, that he had forcefully taken their daughter with him. I was not willing to get married in the family in which they had fixed my marriage…. It was fixed without my consent, so then I had to run away…. We made a plan…. and then we eloped…. They (the parents) didn’t threaten me but they threatened him, saying that if we get married, they will kill him.”

The narratives of older girls were not so different, as another resident reported:

“I used to talk to a boy on a regular basis. I told my brother that this is the boy I wish to marry. My brother told me that it is not possible, because it is a Hindu-Muslim issue…. One day, I saw that they were planning my marriage. So, I told my father about my affair; he was furious. I then told this to the boy, and he asked me what I wanted. I asked him to take me with him, anywhere. He agreed, and the next day we left. Later we received a phone call from my sister-in-law saying that a case had been filed against my husband…. She told us, ‘Your father-in-law has been arrested by the police, so come back here please.’ We went back and surrendered, and I was sent to the short stay home. My husband is in prison.”

While there may be some parents—and this proportion is undoubtedly growing—who respect girls’ choices even if it is to marry a boy from a different caste or religion, the majority do not and some are well aware of the possibility of honour killing. A mother in Rajasthan expressed her misgivings thus:

“If a girl goes off with someone and gets married, we will have to hold our heads in shame. Our society will keep passing comments, I would be afraid of that. In our area, if a girl goes off with a boy (galat kaam), she won’t be allowed back home, they will kill her, this happens among us, that’s why we don’t send girls out.”

Representative image of a woman with mehendi on her hands. Photo: Reuters

What can be done?

Programmes have thus far wisely invested the limited resources at their disposal in empowering girls, building their agency, and apprising them of their rights and opportunities. But in order to exercise these rights, an empowered girl needs an empowered, supportive environment, and it is time to invest in that.

Building a supportive environment must simultaneously engage multiple stakeholders. On the home front, parents must be sensitised about the rights of girls, about enabling daughters to take advantage of schooling, skilling, and employment opportunities available to them, and the value of daughters more generally. Gender transformative life skills education must reach boys, and not only work to change attitudes, but also apprise them of their own rights, including those surrounding marriage decisions.

Also read: Raising ‘Love Jihad’ Bogey, Yogi Threatens Death for Men Who ‘Hide Identity, Disrespect Sisters’

Beyond the home, the community leadership, teachers, and health care providers must be exposed to new ideas and to clarifying values about gender roles and their role in protecting the rights of girls. Platforms exist but have not thus far been sufficiently exploited. For example, frontline health workers, teachers, and elected representatives under the Panchayati Raj system are all entrusted with behaviour change communication and ensuring human rights of the communities they serve. Training for frontline health care providers includes modules on human rights and right to health; training of teachers to impart the Adolescence Education Programme in various states includes a focus on values clarification; and training of elected representatives under the Panchayati Raj system emphasises the need for behaviour change communication and changes in values. While values clarification is stressed in training programmes in multiple sectors, the extent to which these values are translated into behaviour change is not clear.

More intractable is changing patriarchal mindsets of our elected leadership, our judiciary, and our criminal justice system. The proposed legislation by the chief minister of Uttar Pradesh is evidence of this. Misperceptions are deep rooted – about girls’ inferiority, gullible outlook, and their inability to make informed choices. Urgent action is needed, as articulated by India’s own Attorney General, K.K. Venugopal to the Supreme Court, in which he called for gender sensitisation of judicial officers, saying that it is a national imperative so that the trend of insensitivity to women’s rights can be corrected. One can only reiterate this imperative and call for its extension beyond the judiciary to elected leaders at district, state, and national levels.

This article was published on IDR. Read the original here.

CIC Pulls up Child Rights Protection Body for Refusing to Reveal Basic Information

The Central Information Commission said the questions raised before the National Commission for Protection of Child Rights were in “public interest”.

The denial of information by the NCPR has raised doubts about the transparency of the organisation. Credit: PTI

The Central Information Commission (CIC) has called into question the conduct of the chief public information officer (CPIO) and of a consultant and an adviser at the National Commission for Protection of Child Rights (NCPCR), for denying information to an appellant, Ajit Kumar Singh, about the the number of complaints received by the panel, the decisions in the cases where the accused were found guilty and the relief that was granted to them.

While the NCPCR’s mandate is to ensure that all laws, policies, programmes and administrative mechanisms are in consonance with the child rights perspective as enshrined in the constitution of India and the United Nations Convention on the Rights of the Child, the denial of information by the commission has raised doubts about the transparency of the organisation.

The CPIO, G. Suresh, in his reply on May 17, stated that the “information sought by the appellant was not disclosable as per exemption under section 8(1)(j) of the Right to Information (RTI) Act”. However, the central information commissioner, M. Sridhar Acharyulu, held, “The NCPCR uses a privacy exception to refuse entire information en bloc. No effort is done to provide information which could have been disclosed on their own under Section 4(1)(b)”. The CIC further clarified that “except the name of the child, nothing could be denied”.

Consultant, adviser misguiding NCPCR

Acharyulu also raised questions about the conduct of the the adviser, Rakesh Bhartiya, and consultant, Raman Gaur, appointed by the NCPCR. He said that both Bhartiya and Gaur misguided the commission to deny the information.

“These two experienced seniors did not even provide reasons to justify the denial. They failed to perform their duty to separate information that can be given from the information that cannot be given, as prescribed under Section 10(1) of the RTI Act. They do not know that Section 10 provides for severability,” the interim order of the CIC said.

Stating that the CPIO, adviser and consultant had not only refused to divulge information “without forwarding any justification”, Acharyulu said they had also “bluntly rejected the entire information, abusing section 8(1)(j) of the RTI Act.”

“It is most unfortunate that the consultant and advisor have guided the CPIO and the public authority to breach the RTI Act,” he added.

Questions pertained to core functioning of the NCPCR

Going into the merits of the plea, the CIC said, “When the appellant was not seeking names and personal information and wanted information about the number of cases left out without any action, or action taken and pending before the commission for years, public authority cannot invoke Section 8(1)(j) at all.”

He said the question raised by the appellant about the action taken by the NCPCR on four-year-old complaints was in “public interest” and related to its “core function”.

The CIC also directed the NCPCR to provide, within 15 days, information regarding cases pending for over two years pertaining to the Bihar circle and the details of disposal of cases where the accused were found guilty, after removing names and personal details of children.

It also directed the CPIO, the adviser and the senior consultant, who appeared in the matter as “deemed PIOs”, to show-cause why maximum penalty should not be imposed upon them for illegal obstruction of information.

The New Law Banning Child Labour is No Ban At All

The amendment seeks to abolish all forms of child labour, but includes a proviso that allows children up to the age of 14 years to work after school hours in ‘family enterprises’.

A child working in a loom. Credit: Wikimedia Commons

On July 19, 2016 the Rajya Sabha passed a Bill to amend the Child Labour (Prohibition and Regulation) Act, 1986, which will soon be placed before the Lok Sabha for its final enactment as the ‘Child and Adolescent Labour (Prohibition and Regulation) Act.

The amendment prohibits the engagement of children below the age of 14 in all occupations and processes so that they are able to enjoy their fundamental right to education under the Right of Children to Free and Compulsory Education Act of 2009.

Further, it extends to cover adolescent children in the 14-18 age group, which number about 32.3 million according to the 2011 census for 15-19 age group. The Bill also makes engaging child labour a cognisable offence, punishable by imprisonment for a term of not less than six months and up to two years, or by a fine of not less than Rs 20,000 and up to 50,000 or both.

We should be celebrating the passage of the Bill as a historic moment for children in India that could radically transform their lives. However, in effect, it is a half-hearted expression of the state’s attitude towards its children, their childhood and dignity.

Although the Bill abolishes all forms of child labour to enable children to enjoy their right to education up to 14 years, it also introduces a proviso allowing children of up to 14 years to work after school hours to help the family in fields, do home-based work or work in a forest.

Even as it extends the Act to cover adolescent children, all it does, in effect, is benefit a small number engaged in certain specific forms of child labour.

Perpetuating exploitation

The proviso of family work is seemingly benign about which, apparently, there need not be any disagreement.

In all families, rich and poor, is it not desirable and acceptable that children help in a family’s daily chores? Why is it that family work is mentioned and made explicit under this amendment?

It is because the Bill does not seek to justify routine family work, but the work that millions of children render in home-based units of beedi rolling, bindi and bangle production, agarbatti and papad making, zari and embroidery work, packing and sticking labels, chappal making, handicrafts and the manufacturing of several other products.

This is the work that requires the entire family to participate to meet the demands of contractors who supply them with the material and procure the finished product on a piece-rate basis.

Such work is a form of hidden exploitation under unregulated labour conditions in which numerous children from deprived and marginalised communities are engaged.

It is the kind of work in which poor landholders are tied to the creditors who provide them with seeds and fertilisers, often forcing them into a long-term contract on adverse terms and conditions which forces the entire family to work as cheap labour on their own farms.

Children perforce get trapped in this vicious cycle of oppression and work as farm labour along with the entire family especially during peak seasons at the cost of education.

It is the kind of work that starts before and after school hours until late in the night at the cost of children’s health until they can no longer concentrate in the classroom or participate in school and are branded as slow learners. Unable to straddle both school and work, these children are forced to give up the former.

While conventional wisdom blames the quality of education for the problem of retention of children in schools, it is often ignored that children drop out because they are unable to cope with going to the school and working at home.

Such work incorporates children into the family occupation and thus somehow maintains the status quo and perpetuates caste hierarchy. Taken to its logical conclusion, it implies that it is best for the children to continue in their family profession – a potter’s child ends up as a potter, a weaver’s child a weaver and an agricultural labourer’s child a farm worker.

This is the kind of work that legalises the exploitation of children engaged in family-based enterprises, consequently making child labour invisible.

Do children really benefit?

Being insensitive to the challenges faced by the most deprived castes and communities, the amendment defeats its very purpose – enabling children to enjoy their right to education.

By justifying in law the participation of children in work before and after school hours, the Bill denies them the time and space to develop and grow as citizens with similar choices and opportunities that children from affluent families enjoy. Such a proviso would only contribute towards fostering existing inequalities and discriminatory practices in society.

It contravenes the equitable right of all children to a childhood and their entitlements to live a life with dignity as guaranteed by the constitution and the the UN Convention on the Rights of the Child, to which India is a signatory.

The amendment to the Act should have instead enabled children to engage in activities, before and after school hours, that foster their active participation in school as a student and enhances their overall self-esteem and dignity.

In whose interest is the amendment?

Where does this resistance to completely withdrawing children from work actually come from? With the enrolment of 99% of children in schools, it is evident that parents from deprived communities aspire to educate their children and are making enormous sacrifices to keep them in school.

The pressure to incorporate a proviso that allows children to work after school hours is certainly not from the poor. Those who benefit from this are the employers and contractors who make their profits over home-based units in the informal sector.

Is it then the influence of the private sector, which is dependent on the workforce in a home-based unit? Or is it our policymakers who are insensitive to the rights of all children and insist on perpetuating traditional skills and crafts, and who would never think twice about educating their own children?

Unfair to adolescent child labour

The amendment has also inserted a new section that prohibits the employment of adolescents – children in the age group of 14-18 years. The extension of age under the Act should be a viewed as a positive step.

However, it prohibits child labour only in mines, in the production of inflammable substances or explosives and the hazardous processes assigned with it in clause of the Factories Act, 1948. Thus, it actually gives a legal sanction for the employment of adolescent children in all other sectors.

It is totally oblivious to the extent of exploitation and suffering of innumerable adolescent children, who move from working on construction sites, to sweat shops and farms and so on, and who are trapped by the hardships of fulfilling their basic needs and struggle for survival.

Such adolescent children are often unhealthy, yet continue to work till they become completely incapacitated.

The burden of the state’s inability to provide social protection, food security, employment, universal health care, access to credit and financial support to their parents falls on adolescent children.

Thus the cost of the state’s inaction results in entire generations of adolescent children being further marginalised and excluded from their rightful share of the state’s resources and action.

A wasted opportunity

In the statement of objects and reasons in the Bill for prohibiting employment of adolescents in hazardous occupations and processes and regulating their conditions of service, it is stated that it would be in line with ILO Convention 138 on Minimum Age (1973) and Convention 182 on Worst Forms of Child Labour (1999).

India and Estonia are the two countries that are yet to ratify Convention 182 and are among the 15 countries that are yet to ratify Convention 138.

Addressing the complex issue of releasing adolescent children from work requires a whole-hearted legal framework and not a token effort to satisfy an international obligation.

Thanks to the clause allowing children to work after school hours “in the family” and rationalising adolescent child labour by law, Indian children would once again lose their battle for a life of dignity and freedom.

Indeed, it is a lost opportunity to provide justice to the most marginalised children in India’s democracy.

It is a shame that our parliamentarians have not risen to the occasion and opposed the proviso for allowing children to work after school hours and genuinely release all children, including adolescents, from the labour force. Ending child labour once and for all and making child labour part of India’s history still remains a mirage.

Shantha Sinha is a former head of the National Commission for the Protection of Child Rights

Starve Them, Sell Them, Hang Them: The Destiny of India’s Poor Children

Five men and a 17-year old boy were arrested after the December 16 bus rape in 2012. Of the five adults convicted of the crime one is dead, and four have had the death sentence passed against them.

The 17-year-old, called Accused #6, was also convicted and punished. After serving his time in jail, equipped with some education and skills, he is set to start a new life.

He was not sentenced to die because he was a child under Indian law as well as the United Nations Convention on the Rights of the Child.

Yet, many in India felt justice had evaded Jyoti Singh, the rape victim, because the 17-year-old served just three years in prison.

The public was baying for the blood of the 17-year-old. Some want him castrated, others want him hanged. They wanted a new law passed in parliament that would mete the same punishment to him as to the adult rapists in the group. Irrationally, they believed that he should be re-tried under the new law for the same crime for which he had already been convicted and punished.

Nobody wanted to address the root causes of how he came to be part of the gang of rapists. In this new culture of intolerance, they simply wanted blood – not long-term solutions.

This viciousness is reflected in the public pressure that resulted in the Juvenile Justice (Care and Protection of Children) Bill, being passed by Parliament this week. The Narendra Modi government’s amendment to India’s existing juvenile justice law has reduced the age of children liable for life imprisonment from 18 to 16.

This means the number of children in jail will only go up. The same money that will now have to be spent to feed, house, educate, and counsel these children for a longer number of years could instead be used to prevent children from being in conflict with the law. After all it is a child in need who becomes a child in conflict with the law.

The 17-year old, known as Accused #6, was trafficked as a 11-year old to Delhi.

His mother, a destitute single mom abandoned by her also-starving husband, was unable to feed him, clothe him or educate him. Hungry and skill-less he ended up trafficked in Delhi exploited for five long years by restaurant owners, construction companies, garages and bus drivers.

Lonely, homeless and rudderless he ended up with a gang of older men for a family. In fact, Ram Singh, the prime accused, who died in prison, was his boss at one time.

He had gone on the night of the rape to ask Ram Singh to return the money that he had borrowed. Instead, he was made to join the gang, get senselessly drunk, join the gang-rape and left to wash the bus.

If he had been in school, properly educated and fed, he would never have been recruited by traffickers, abused and used by gangs.

But the same BJP that is the architect of the bill to reduce the age of punishment was quite happy to cut – in the 2015 National Budget – public expenditure on women and children by 44% and on some education programmes by 25%.

These cuts have effectively led to compromises on the quality of the mid-day meal programme in some art of the country. These cuts have also led to the closure of boarding schools under the previous government’s Education for All initiative through which poor girls could study with proper guidance, safe housing and adequate nourishment.

In addition, this summer the Modi cabinet approved a bill to legalise child labour in certain sectors like audio-visual entertainment and family enterprises, giving impunity to the sexualization of children in media and domestic servitude users.

Weeks after the Modi government came to power, the chairperson of its National Commission for Women even said she would like to legalise prostitution. Since an adult woman can legally sell her body for sex in India, she could only have meant the legalisation of pimping and brothel keeping.

If impunity is given to abusers and the basic needs of children are not met, more children will be in conflict with the law. Lowering the punishable age of children cannot prevent rape or other heinous crimes. In any case, data shows that only 2.4 % of sexual crimes in India are committed by offenders between the ages of 16 and 18.

Investing in schools, meals, clothes, for our children is more likely to prevent heinous crimes. Those baying for the blood of children should be lobbying with the ruling party to re-invest in the basic needs of poor children.

Ruchira Gupta is a feminist campaigner, professor at New York University, and founder of anti-trafficking organization Apne Aap Women Worldwide (www.apneaap.org). She tweets at @Ruchira Gupta