ALL children have the right to be protected wherever they are – at home, in school, on the streets – and at all times, be they of peace or conflict or calamity. Their right to protection is as intrinsic to their well-being as is the right to survival, development and participation. Children deserve to live in an environment where good governance and the full enjoyment of human rights are mutually reinforcing.

This paper takes the approach of revisiting the definition of protection as it relates to the child, and advocates the creation of an overarching ‘framework for protection’ that would determine all child-related interventions by the government. It proposes the creation of a protective environment wherein all rights of all children are addressed in totality so that they are protected from becoming vulnerable to abuse and exploitation. In doing so, it ventures beyond the customary boundaries of what is conventionally considered to be the ‘protection’ sector.

The child internationally is defined as any person aged up to 18 years. In India, official convention has appeared to limit the definition to any person up to the age of 14 years (below 15 years). However, with the adoption of the Juvenile Justice Act (1986, amended in 2000), the National Plan of Action for Children 2005, and the Commissions for the Protection of Children’s Rights Act 2005, the Government of India has now recognized that childhood legally extends to the age of 18 years.¹

This is a positive move; it also clearly extends the state’s protection responsibilities to a larger number of young people. What is less clear in the closing year of the 10th five year plan and the start of the design process for the 11th plan, is what India understands protection to be. It is important to examine what the principles of human rights, equality and justice would dictate as minimum essential protection measures and standards for the survival and well-being of children in this country. The 11th plan should be formulated from the standpoint of rights, and the foremost target of its provisions and commitments should be the child.

The Constitution of India affirms the Indian state’s recognition of children as a section of the people deserving of special protections and supports. Progressive census counts tell us that this ‘section’ comprises nearly 42% of our population. What is done for them – and equally, what is not done for them – will determine what India becomes.

Protection – from or against perceived or real risk, danger or damage – relates not only to a person’s physical condition, but to all the nuances of life and status in diversity of physical, social, material, civil, cultural, psychological and political settings, and usually to a complex mix of them. In the case of children, it also relates to the child’s capacity for self-reliance and self-defence as also to the role and responsibility of family, community, society and state.

 

In its simplest form, child protection addresses every child’s right not to be subjected to harm. It thus complements other provisions that ensure that children receive all that they need in order to survive, develop and thrive. India has recognized the right to protection for its children through constitutional commitments and laws, policies and programmes it has put in place over the years. It has recognized that some children are in ‘especially difficult circumstances’² and made specific programme interventions for some of the children who fall under this category such as child labour, street children and children under the juvenile justice system.

The state’s first official detailing of protective and developmental provisions for children, seeking to take up some of its acknowledged duties and responsibilities towards those of tender age,³ first flagged in the Constitution, dates back to the third five year plan, which was the first to make specific commitments to children. Coupled with the exemplary pledges set out in the 1974 National Policy for Children, this should have ensured high investment, good implementation and demonstrable benefits to children in each subsequent plan period.

However, neither investment nor outcomes have been sufficient to prove a sustained and adequate national commitment. An area of particular default has been that of protection. Child protection is not a set of activities or measures assembled inside this or that scheme or programme or law. It is much more. It is also not contained or containable in policy and programmes specifically targeting the child.

An examination of present and possible child protection policies, legislation, programmes, investments and outcomes in the context of the potential of the 11th plan must, therefore, begin with an acknowledgement of the real character and dimensions of the protection issue, and therefore of the correctives, safeguards and redressal that could effectively address ‘un-protectedness’ as it affects children in India. Given the abject situation of millions of children, India stands in urgent need of a radical overhaul of its perception of how children deserve the state’s protection. This will obviously imply new and more farsighted measures to actually provide children the protection they need.

 

Both state and society are thus challenged to assure the child a protective environment and a caring community. In defining such an environment, Unicef sets out eight elements which reflect the range of protective provisions the state should feel obliged to offer.⁴

Protection is thus a dimension of the state’s vision for the people, young and old, and therefore, of how it perceives its mandate to serve the people. The extent to which the definition applies across the board in national action relating to children will depend on how far India accepts the wider ramifications of the term. The international definition relates to ‘exploitation, violence and abuse’. But an uncaring community and an un-protective environment wreak other kinds of damage as well.

 

The Constitution promises citizens the right to life and liberty. What does this imply in terms of protection? Children who become part of the neonatal and infant mortality toll are unprotected; so are girl children killed as foetuses. Children rendered destitute by natural or man-made disasters, left without adult support, or faced with threats to their health or well-being are unprotected. Children whose uncertainty of status makes them nameless and faceless to the state are unprotected. So are children who live on the fringe of subsistence, either alone or with families. The denials that ruin or cut short their lives demand protection they do not now enjoy. Neglect and failure to care are as harmful and damaging as active abuse. The impact of poverty and invisibility are life-threatening. The consequences of discrimination, intolerance and exclusion equally call for protection.

The nuances of un-protected-ness extend to other aspects of denial and deprivation. The child is entitled to protection against:

* the inequities of poor and stratified development services which impose unjust or inadequate conditions and standards of health, nutrition, education and what is meant to be care;

* being rebuffed or ignored by substandard providers of services;

* being denied a listing on official records, a name and a nationality;

* being deprived of the enjoyment of his/her own culture, religion, language;

* being stigmatized or marginalized because of his/her own culture, religion, language;

* being targeted for discrimination or exclusion because of gender, caste, class or community, or due to a health or psycho-social condition;

* being portrayed in a demeaning, derogatory or pornographic manner;

* being denied attention or respect for being a child.

 

In a nation which has not yet succeeded in overcoming socio-cultural divisions and stratifications, and which continues to fall short of achieving economic justice for its people without qualifying benefits on the basis of their origins or characteristics, the national planning process must take note of the alienation that disparities bring in their wake – and the resentment and brutalization that can ensue. There is growing concern at the rise of violence in Indian life: what are its roots, and how can it be addressed? Are the angry elements to be blamed for anti-social attitudes and behaviour, or has the state in its dispensations somewhere become anti-social itself? Has the design and delivery of ‘development’ bypassed some of the people? If so, is this being reflected in the emerging attitudes of those who feel dispossessed, and how is this influencing children and the youth?

The UPA’s Common Minimum Programme espouses the principle of ‘preserving, protecting and promoting social harmony, and enforcing the law… to deal with all obscurantist and fundamentalist elements who [sic] seek to disturb social amity and peace.’ It also commits the UPA government to ‘protect the rights of children’, and mentions child labour and the travails of girl children as part of its concern. The CMP document speaks of the unmet rights of Scheduled Caste and Scheduled Tribe communities, though it does not specifically take note of SC and ST children and their special vulnerabilities.

It is important to note that India’s own affirmations for children have included neglect as a cause for protection, along with exploitation and abuse. Correctives to overcome exclusion therefore become a part of the state’s protection responsibilities. The National Policy for Children (1974) promised that ‘children will be protected against neglect, cruelty and exploitation,’ and declared that in all situations of dispute where the child is in need of the protections of the law and the state, the best interests of the child shall be of ‘paramount concern’. Paramount, not incidental!

 

The National Charter for Children (2003) acknowledges the principles and provisions of the Constitution and of the 1974 National Policy as comprising its guiding frame, and includes ‘neglect’ and ‘degrading treatment’ in its listing of conditions from which children must be protected. The charter states its intent to ‘secure for every child its right to be a child and enjoy a healthy and happy childhood… and to awaken the conscience of the community in the wider societal context to protect children from all forms of abuse…’ and asserts that ‘the state and community shall undertake all possible measures to ensure and protect the survival, life and liberty of all children.’ What would ‘all possible measures’ be? All these assertions are calls to action.

It is natural for development plans to focus on material changes, and to set targets and measure progress by quantitative changes in the provision of health, nutrition, safe water, education and such elements of physical input and output/outcome. But in labelling the progress effort as ‘social development’, a nation accepts the dimension of social justice and equal rights as intrinsic to the way forward. This must extend to the state, including protection in what it recognizes as its core obligations. Development must not merely be sustainable, but also just. In cannot and must not result in protection failure.

This acknowledgement cannot escape recognition of the sites and settings, in all aspects of development with justice, in which protection must be ensured. The child has the right to expect protection in all of them. They range from the settings of daily life of every deprived child and community, to situations of crisis or emergency. In moving to rights-based planning, the state must see and address what this implies in terms of protection. The country still lacks a disaster prevention and disaster management policy that is child-aware. Even more, it lacks a ‘neglect prevention’ vision. It is not semantics to speak of these. The wages of neglect are all too clear in the condition of far too many children.

 

The positioning of child protection, therefore, cannot be separated from the principles of justice, or confined to the departments or sectoral boxes of social welfare, child development or social justice or labour portfolios as they now stand. These portfolios are too narrow; moreover, protection as a state obligation has a place in every portfolio. It belongs in all sectors of development. The 11th plan will only perpetuate present national disservice to children if it fails to take this into account.

Most recently, the new National Plan of Action for Children 2005 (NPA) has affirmed protection as a key commitment and has somewhat expanded what it means, pledging to ‘address issues of discrimination… in order to ensure equality.’⁵ This is taking a stand against exploitation, abuse and neglect, and reaffirming the 1974 National Policy promise to extend protections to children before and after their birth. The ‘before birth’ provision carries more implications in today’s foeticidal climate for girl children than could ever have been foreseen in 1974.

 

The new NPA also promises governmental action to prevent discrimination against children afflicted or affected by HIV/AIDS. Action to achieve the protective cover pledged by these policy and plan declarations will entail pro-active measures in many sectors of government.

Paragraph 13 of the NPA sets out 12 key areas – virtually all of which imply protection.⁶ The reduction of IMR and MMR, and of child hunger and malnutrition; achievement of 100% birth registration, abolition of female foeticide, infanticide and child marriage; measures for children in difficult circumstances; universalizing care and development; ensuring that children have a voice and are heard – all these carry protection implications for those now left out or short-changed. The NPA recognizes this as part of protection when it pledges the nation to ‘prevent children from falling into distress and vulnerability by developing strategies for food and livelihood security for families and provision of basic minimum services, ensuring special attention to the most vulnerable.’⁷

The government’s espousal of the international Millennium Development Goals also brings into focus other protection issues. Each of the MDGs carries child protection risks and fallouts. Poverty and exclusion can lead to abandonment of children; lack of civil registration excludes children from hunger-reduction benefits; child labour exploitation is aggravated as market forces push the poorest into unorganized work and informal economic activity.⁸ All these fallouts can be seen in India.

 

India’s acceptance of the UN Declaration of Human Rights (UNDHR), the UN Declaration and subsequently the Convention on the Rights of the Child (CRC), the UN Covenants on civil, political, social, cultural and economic rights, and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), places further obligations on the state to honour the provisions of these international instruments.

With India’s ratification of the UN CRC,⁹ and subsequently of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, many child protection options have become obligations. The government’s notified intent to accept the Optional Protocol on the Involvement of Children in Armed Conflict adds one more. This must carry implications for the 11th plan and any other national commitment affecting the child in India, as must the concluding observations made by the UN Committee on the Rights of the Child on India’s performance in implementing the Convention.

 

Indeed, it is worth noting that the UN Committee on the Rights of the Child has to date found India’s performance below par on most aspects of child protection, and has recommended more sincere and conscious national action. The 10th plan was framed and launched after India had received one set of corrective recommendations (Concluding Observations of the Committee on the Rights of the Child: India CRC/C/15/Add.115, 28 January 2000), and the UN Committee’s second set of reminders and recommendations (Concluding Observations of the Committee on the Rights of the Child: India CRC/C/15/Add.228, 30 January 2004) was issued before the mid-term appraisal (MTA) exercise.

What will India be able to report in the next round of CRC performance assessment (due in 2008) and what will it tell its children then? The question faces the plan designers now.

The declared commitment to child rights that India has adopted as one of the seven countries of the South Asian Association for Regional Cooperation (SAARC) underlines its acceptance of the obligation to accord priority attention to and ensure due investment in the rights of the child.

India’s acceptance of the Millennium Declaration and the Millennium Development Goals is an added formalization of the Indian state’s commitment to key rights of children.

 

On two specific issues of child protection – child labour and child prostitution – India has accepted the commitment of the 1997 Oslo International Conference on Child Labour and the 1996 Stockholm World Congress against Commercial Sexual Exploitation of Children, and its 2001 follow-up Congress in Yokohama. On child trafficking, India is also party to the regional SAARC commitment to end this criminal trade (see footnote 12). With all three of these problems posing a present threat to the country’s children, it is time to act.

The situation of girl children is India’s special shame. India was the initiator behind the 1990 SAARC declaration of a year and then a decade for the girl child. But, neither the year or decade long observances, nor other well-intentioned schemes like the Balika Samriddhi Yojana, have stemmed the tide of female foeticide, childhood neglect, early marriage and resultant early maternal mortality, and overall social injustice. The lame explanation of son preference as a social bias or poverty as a cause can no longer be an excuse: the state must find a way to protect both the dignity and the lives of daughters.

It is unfortunate that no one is held accountable for poor enforcement of existing protective laws. It is also unfortunate that the state is not re-examining the inherent risk of promoting a gender-blind pursuit of the national population policy, and of limiting concern over child marriage to its link to early child-bearing. The protection of life calls for these approaches to be revisited. India may attain some birth control goals by the time of the next census, but can it afford to do so by preventing girls from being born? At stake is the nation’s demographic viability. What could be the ‘sector’ to address child marriage and girls’ disappearance in the 11th plan? These are definitely not just health or family welfare issues. Indeed they need to be viewed as protection issues.

 

Through the plans, the government has persistently positioned children with mothers, clubbed ‘women and children’ as one composite, and generally treated the family as the prime unit of access to the child. Even accession to the UN Convention on the Rights of the Child has not ensured children as people in their own right. Some of the language of the new NPA for Children tries to do so; the NPA’s implementation will have to demonstrate whether the distinction is understood. The home, household and family circle are often the sites of abuse or neglect, and child protection implies that the state must where necessary intervene in the child’s interest. Reporting on CRC implementation in 2001-2002, India stated that the problem of corporal punishment of children in the home is ‘a private family matter’, implicitly extending this privacy to other forms of abuse inside the home.¹⁰ The new legislation on domestic violence limits its provisions to women, and fails to protect children.’¹¹ Wherever the child is at risk, this cannot hold.

The new NPA seeks to be more forthright on state responsibility; again, this must reflect in a more pro-active protective approach. How do we change attitudes within families and move towards the creation of a more caring community?

Every child deserves to have his or her existence acknowledged. This is critical to the protection of his/her protection of civil and political rights – name, identity and nationality. Birth registration is therefore the first protective civil right of every child. India officially claims to have birth registration coverage of ‘around 59%’. In 2001, it claimed ‘around’ 54%. In 2000, it admitted 40% (down from 47% claimed in 1990) in one national report and confessed to 35% in another report. Even the highest figure is nothing to be proud of; the NPA now sets a goal of 100% by 2010.

 

In its 2001 First Periodic Report on CRC implementation,¹² the government listed a number of measures that could improve registration coverage. How far these were taken up in the ensuing 10th plan period is unclear if the registration level has risen only ‘around’ five percentage points. They should find place among protection provisions in the 11th plan. Equally important, there should be accountability for failure to improve.

The right to a name and nationality goes with the right to identity, and with attendant entitlements to the child thus identified. Lest we forget, availability of birth registration certificates are fast becoming the determining factor for whether the child receives admission in schools and is therefore able to exercise his/her fundamental right to education.

At the same time, protection should not be reserved only for those who can produce Indian passports; any child in need in Indian territory should have a claim on the state’s protective shelter and benevolence, to receive basic services and support. This is often the approach adopted in the case of children trafficked across borders.

 

Clearly what all children need is an environment that protects them. And this has been acknowledged by the government at different times.¹³ But does the implementation framework reflect this approach too?

An examination of the protective measures is designed to address only those children whom it has categorized as ‘children in difficult circumstances’. It is clear that the current approach of the government to protection is designed to address those children who have already missed the protective net and fallen into what it categorizes as ‘difficult circumstances’. It is not designed to create the environment where all children are protected.

Even in its current coverage it falls short of reaching the most vulnerable because the interventions through the existing schemes do not cover all categories of children in difficult circumstances identified by the government itself. Besides, it is widely acknowledged that data on all categories of children in difficult circumstances is inadequate. Therefore, even within its ‘limited coverage strategy’, it falls short of its own goals.

The 10th plan set out some worthy objectives that could have improved the status and condition of many children. The plan states that ‘after having accepted the rights-based approach for the development of children, it becomes obligatory on the part of the government to ensure ‘survival, protection and development’ of children, especially that of the girl child. As its second priority, the 10th plan identified ‘protection’ of children, in general, and in particular, children with special needs and problems, including those in difficult circumstances. It identifies children in difficult circumstances as children whose parents are prostitutes, drug addicts, having contagious diseases, in custody; victims of natural or man-made calamities; destitute/abandoned children; children with problems of under/malnutrition; and children with disabilities.

Recognizing that the state has to come forward to protect children with timely action to avoid social damage, the plan notes that ‘as the target groups under this category are mostly those who need curative-cum-rehabilitative services, efforts in the 10th plan will be to expand the existing limited services available in the field of disabled, social defence and social welfare.’¹⁴

 

The mid-term appraisal of the plan has, however, revealed many failures in reaching the targets set for children. The 10th plan’s deficiencies in setting comprehensive enough targets on protection was already a fault; inadequate performance in achieving even those targets leaves children under-served as the plan period moves to its final year.

This appraisal process has also revealed the persisting low levels of fund allocation for measures affecting children, with resources for child protection receiving the lowest priority. From an analysis of the budgets it is clear that scarcely any allocation has been made for child protection, which in itself is a reflection of the low priority this sector receives in government’s own planning and implementation. Can India afford to invest so little in safeguarding its greatest asset?

 

A disquieting feature of the mid-term appraisal report is how little it has to say about the protection needs and related vulnerabilities of children. A look at the Planning Commission’s own 2005 assessment of children’s gains from 10th plan performance¹⁵ shows an incomplete perception of what protection gaps should figure in the stocktaking. Given that the extension of childhood to 18 years is now official, the appraisal of programmes for youth and adolescents is inadequate on protection of their rights, especially those of girls and disadvantaged groups.

The review has concentrated on childhood care and education initiatives, particularly through the Integrated Child Development Services. It has identified child trafficking, HIV/AIDS, restraining child marriage and risks to girl domestic labourers as areas of concern. Even though the Planning Commission is the body mandated to apply a holistic lens to national development – and within it to every focus group, including children – there is insufficient evidence in the MTA of this having been done in relation to how and where children require protection, and whether they are getting it at all.

A few key factors need to be kept in mind in considering what needs to be done. One, with the belated recognition that childhood extends to 18 years, a clear 42% of India’s people are to be served by both developmental and protective measures. This cannot be considered as a minor or peripheral area of development obligation. Two, the issue of child protection cannot be limited to the portfolio of any one ministry or department of the government; it is multi-faced and cross-sectoral, and should be addressed as such. Three, while children deserve special and specific measures relevant to their age, vulnerability and incomplete ability to act for themselves, India’s planning, investment and action for child protection cannot be divorced from policy, legislation and programmes aimed at addressing the wider and deeper protection issues confronting the state and society.

The nation’s failure to overcome poverty, inequality and divisive socio-cultural forces – and the state’s own failures within these frames – imperils the protection prospects for children. What is more, the pervasive and persistent damage and pain caused to children through both economic and socio-cultural exploitation and maltreatment are not just by-products of situations or pressures aimed at adult society; children are specifically targeted. The enactment of protective or preventive laws is not a solution unless they are enforced. Protective and caring governance would go even further than law enforcement.

 

With the 2005 NPA for Children now in place, it is essential that it is not left as a paper promise. Its provisions for protection in particular, invite a new national commitment. Along with assurance of needed resources, it is vital for the 11th plan design to recognise the linkages between lack of development, resultant exclusion of deserving groups among children, and their communities, and the protection risks that ensue, as also the linkages between discrimination, vulnerability relating to group identity, and the threats and dangers that result.

Is enough known about the shape and size of the country’s child protection needs? Even in the current final year of the 10th plan, steps could be taken to initiate work on developing a firm and comprehensive data base. Apart from birth registration deficits, child labour is not the only issue on which the state is still working on guesstimates. Fact finding and analysis are key requirements for setting up appropriate indicators by which change can be measured. Review of the efficacy of existing measures is a related need.

 

Every aspect of protection calls for training, orientation and attitude formation or sensitization. A major need exists for counselling skills, and for training institutions to provide courses and set professional standards. The quality and capability of personnel in protection-related services is not good enough. Those arms of the law and administration most likely to be responsible for dealing with children in need of protection are often themselves a source of fear. Both programmes and providers need to improve. Special cells, or outreach units, capable of providing child-friendly attention and assistance to children are needed across a range of developmental, legal and police services. Without the right people to man and operate them, the best-conceived programmes will not give children the help they need. This is an investment priority for the plan.

India must commit itself to policy, programme, investment and action worthy of its children. It must also set itself time targets and a deadline for change – and work towards concrete achievements. The NPA for Children sets some bold objectives, with target dates. In official comments to these commitments, however, the Planning Commission describes them as ‘far too general, unfocused, unrealistic’ and unlikely to be achieved. The Commission has, for instance, picked out child marriage as unlikely to be eliminated by the target year of 2010 ‘since it has been continuing for centuries’; nor has it proposed an alternative deadline. On some other objectives, it has tightened the deadlines that the HRD ministry proposes.

The commission has also advised the HRD ministry to do a better job of calculating the funds needed to implement the NPA, and tagged resource mobilization as a crucial area requiring special attention. This raises some hope that the 11th plan design could accommodate the needed increase in investment outlays for child protection.¹⁶

 

Clearly, child protection cannot and must not be a set of activities or measures assembled inside this or that scheme or programme, or law. It is much more and cannot be contained or is containable in policy and programmes specifically targeting the child. It is found – and thus must be addressed – in the larger settings of poverty, deprivation and disparity, and stems from those wider and deeper conditions and manifestations of discrimination, prejudice, intolerance or indifference, hostility, unthinking or deliberate neglect or denial, violence of all kinds, resulting in alienation, isolation, subjugation, brutalization – and just plain deprivation. The vulnerability and suffering of children rests as much in who – and whose – they are as in the fact of being children. Children cannot be effectively and meaningfully protected unless the climate for such protection exists – or is developed – and is upheld. Any sustainable and effective protection planning for children must reflect this thinking and approach. Indeed, it calls for a paradigm shift.

 

Footnotes:

1. There are, however, several legal provisions that continue with different age specifications such as attainment of 16 years of age for a girl is necessary for giving sexual consent, which is not less than 15 years in case she is married; the age of majority is 18 years for girls and 21 years for boys under the Indian Majority Act.

2. ‘It includes orphans, street children, beggar children, migrant children, children affected by man made and natural disasters, drug addicts, children of nomads, refugee children, slum and migrant children, children of commercial sex workers, children of prisoners, children affected/by in armed conflict, displaced children, evicted children, young children in charge of siblings, children born as eunuchs or brought up by eunuchs and other children who need care and protection.’ National Plan of Action for Children, 2005.

3. Constitution of India.

4. State of the World’s Children 2006, Unicef.

5. NPA for Children 2005, pg. 3, para 13.

6. Ibid., pg. 30, para 11.2.6.

7. The Inequality Predicament 2005; UN (Dept of Economic and Social Affairs).

8. India has ratified the UN Convention on the Rights of the Child in 1992. It continues to have a declaration on Article 32. India’s continuing to have a declaration has drawn comment from the UN Committee on the Rights of the Child in its Concluding Observations in 2004 ( CRC/C/15/Add.228, 30 January 2004).

9. Convention on the Rights of the Child India, First Periodic Report 2001, to the UN Committee on the Rights of the Child.

10. The Protection of Women from Domestic Violence Act, 2005.

11. Convention on the Rights of the Child India, First Periodic Report 2001, to the UN Committee on the Rights of the Child.

12. First Periodic Report to the UN Committee on the Rights of the Child, 2000, (pg, 30), National Plan of Action (NPA) for Children 2005.

13. The National Plan of Action 2005 has included many more children in this category than the 10th plan document (see fn. 2).

14. Mid-Term Appraisal of Tenth Five-Year Plan: Report. Planning Commission, GOI, June 2005.

15. ‘Process of Finalisation of the National Plan of Action for Children 2005’ (unpublished official document), GOI.

16. World Fit for Children: Outcome Document of the UN General Assembly Special Session on Children, May 2002.