Author: Chiradeep Basak, National Law School of India University, Bangalore.
“Perhaps the sentiments contained in the following pages, are not yet sufficiently fashionable to procure them general favor; a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides.” — Thomas Paine, Common Sense, January 1776
“Child rights come in the zone where law and other disciplines interact. Law is a study in the light of other disciplines which will inform you about the good and harmful effects of actions. The more you know of harm, the more law will come in to prevent it. A best interest of the child is a similar area. One has to be careful to keep within the boundaries of the inquiry” – Prof T.Devidas
The early studies of child came not out of interest but with an objective to educate them; so that they can be a responsible and constructive citizen of the society. They have been trained from time immemorial for this. Even during Stone Age, the child practiced the same activities of their adults. This has been recently discovered by Jess Cooney (A Research Scholar in Cambridge University). In his thesis, the archaeologist has unraveled the paintings of a Cave in Rouffignac, France. The fingerprint line, the geometric shapes suggests that the cave was a special place for children. The speculation of this archaeologist suggests that the cave was a special place for children; most probably pre-historic school. As they discovered most of the art in the cave is finger fluting ((The History Blog)). The research shows that the finger fluting was even made by young girl child of 5 years or below. This shows that the pre historic era promoted education of girl child ((http://www.cam.ac.uk/research/features/prehistoric-pre-school/ last visited on 13th November 2012)). But this discourse wish to look into the contemporary challenges to the rights of child and the changing shape since ancient period
Child in Ancient India
“Children should be studied not as an embryonic adult but in their essential child nature so as to understand their capacities and know how to deal with them” According to Comenius
Child and Samskara: The Origin and development
“A Samskara is a socio-religious rite by the performance of which the life of the present Hindu or Brahmanical Arya is sanctified ((Kamalabai Deshpande, “The Child in Ancient India” 1936 Poona at p. 6)).”
Every society is driven by some rules. These may be in form of religion or even in form of certain practices. These practices/ rules/ religion are all based on “faith”. This faith cannot be measured by any mathematical variables. The gravity of faith cannot be determined quantitatively. But an external factor may act as a catalyst and bring a change in the whole equation of the society. These may be in form of science or may be in form of defiance based on motive to take over the society. In every society a factor of power is inevitable. But coming back to the practices in form of rituals has been very much prevalent in India. With the development of the society, the mode of man’s expression and its effort to give the faith a material form has raised. With the evolution of the society the process of making this expression as stereotyped as possible is always going on with a view to make it solid and strong ((Ibid at p 1)).
If we draw our focus on the religious perspective, we will find that in every religion there are several rites and practices, without the concert of that one cannot be regarded as the part of that religion. In every religion, be it in Muslims/Jews, where circumcision is necessary or be it in Christians where Baptism is mandatory.
In absence of any particular religious practice, the rules of certain sects are followed. The ultimate purpose of which is to recognize the child to be a part of that society, community or cult. All these rites and practices are based on a strong notion of faith. This faith is implicit in their religious/cultural principles. This practice of rites or rituals gains a status of custom after certain point of time. Question has been raised if customs can bind a community together while on the other hand it is customs and usages that bring a sense of common concern, a common purpose. The origin of Samskara is hidden somewhere in the impenetrable rocks of the dark ages ((Ibid at p 8)). Even though the origin of Samskara is hard to trace but the gradual layer over layer gave it a shape of a discourse that has attained recognition. Samskara received several names in its whole timeline. The prominence of Samskara received certain fluctuations. Some of them became prominent during certain period of time while some of them continued. Two of the Samskara that has been referred by the aforesaid author in her work are Simantonnayana and Pumsavana . Both of them received certain prominence during the Vedic period. But in 2012, they are obsolete. But Samskara like Upanayana is still prevalent.
Another noteworthy point has been referred by several scholars with respect to child birth in Ancient India which has been very nicely related to modern feat of genetic engineering technology. A case of fetus transplantation can be observed in Bhagwatha Purana- in which under the supervision of physician Bhishagvara Yogarat lord Krishna, yoga maya, the super lady surgeon, pulled out the fetus from the womb of Devakidevi by applying hypnotic anesthesia and safely transplanted it in the womb of Rohini ((K.P.Vardhan, ‘Pumsavana Karma’ Ancient Science of life, Vol. IX No. 3 October 1990 at p 134)). Similarly, in Mahabharata- the Dronacharya’s son Aswathama used a nuclear weapon named Brahmaironamaka to kill the progeny of Pandavas by killing Parikshit in womb only. But the child was protected by genetic engineer, Lord Krishna; who neutralizes the effects of radiation by his Sudarshana ((Ibid)). But all these are myths and based on interpretation as put forward by several intellectuals. In addition to all these myths, there are several notions of child birth and various degrees of reasonable care that used to be taken at that point of time. If we put that jacket in current scenarios, many of the facts will nicely fit in the scientific proofs and explanation. For example:
- Man and woman should undergo cleansing process through Snehakarama or oil massage Svedhan or Steambath, Vamankarma or Vomitting or Virechana or purging;
- Man should take in milk prepared from Madhur Oushadhis and Ghee while woman should take plenty of puddings made of blackgram (which contain essential minerals moisture, protein, fat, carbohydrates, fibre, calcium, Iron and Phosphorus) and sesame oil (reach in Vitamin E, phytosterols, RDA and good for bone health)
Similarly, there are many practices and beliefs which are deeply rooted in the culture of India. Hence, even if the science has developed, these practices still prevailed and some of them are formulated as an integral part of one’s family customs also. But coming to the point of child care, there are other facets which reigned during that period. In Ayurvedic texts, the care for the baby begins from the time when the mother conceives him/her. Therefore, the parents are required to have a proper diet; to make sure a proper mechanism can take place and even the psychological stability remains. This is worth mentioning that Samskara already directed the dos and dons long back which science has verified and discovered at a very later stage ((Malavika Kapur, ‘Child Care in ancient India: A life span approach’ Indian Psychological Institute Available at http://www.ipi.org.in/texts/others/malvikakapur-childcare-sp.php last visited on 27th November 2012)).
|Jatakarma (birth)||After Birth||Rooting and sucking reflexes|
|Namakarana (naming)||10th, 12th or 100th day||Appropriate period for general examination of infants|
|Niskramana (outing)||4th Month||
|Annaprashanna (feeding cereals)||6th -10th Month||
|Chudakarana (tonsure)||1-3 years||Examination and care of anterior fontanelle|
|Karnavedhana (piercing ears)||6-8th Months||A type of active immunization (yukti krtabala) initiated with external trauma|
|Upanayana (Thread ceremony)||6-8 years||
In traditional India, the early childhood was considered as the golden age in individual’s life. In Indian history, there was no hidden agenda for cultivating a relationship in Indian society ((Pande, 1968 at p. 425)). However, the vital drawback in Indian tradition with respect to child is the inferior status of girl child. This has been unfortunate that girls were restrained within household works. They enjoyed no right of education. The whole set up has been inclined towards a patriarchal society. The girls were, in other words trained to be ‘good women’ in the arena of a domestic life. The duty to train the daughter was loaded upon mother. The objective was to build her up an absolute docile daughter-in-law ((Srinivas, 1942 at p. 195)). The childhood of girl child used to end up early because of early marriage. This low status accorded to the girl child was one of the reasons behind the prevalence of high number of female infanticide. In this period, the Arabs, Turks, Afghans invaded India and that led to impoverishment and degeneration in India. This invasion destroyed the socio-cultural ethos of India; it looted immense wealth of India. It affected the children too. The imposition of this foreign culture had a profound impact at all strata. The rural family could not even afford food for their children at that of point (although this situation is still prevalent but the beginning point is this). When basic amenities became unaffordable, the withering away of elementary education was obvious.
The elementary education was present among the upper half of society i.e. Brahmins, Kshatriyas and Vaishyas. This was in case of Hindus. Among Muslims, the education was given to those, who belonged to aristocratic and rich families by the Maulvis. The poorer section had to go to mosques. Muslim girls, on the other side were seldom given education and their status in comparison to boys remained inferior ((Savita Bhakhry, ‘Children in India and their Rights’ National Human Rights Commission 2006 at p. 16)). In that period of time, the Indian legal statements were too silent about child rights. The ten commandments, arguably the most influential of all legal codes, contain a clear normative pronouncement on parent-child relations but it is in terms of respect for parents and is silent on the obligation of parents to love and nurture children ((Ibid)). Not in India but it was in 1641, when the Massachusetts Body of Liberties recognized the rights of children where parents were directed not to choose their children’s mates and not to use unnatural severity against their children ((Massachusetts Body of Liberties, 1641Available at http://www.mass.gov/anf/research-and-tech/legal-and-legislative-resources/body-of-liberties.html last visited on 20th November 2012)). But several laws at that time were not giving sufficient safeguards to children. For example, the death penalty for children (who disobeyed their parents) over 16 years was permissible. In the next century, the same state persisted. 18th century can hardly be regarded as the better situation of children in comparison with the earlier centuries. But in 19th century, the child-saving movement moved towards a new dimension. In this century, many steps were taken for a better world for children. This can be ascertained from the history; which speaks of growth of orphanage, development of child protection legislations, juvenile courts, schooling and construction of separate institutions in different parts of western world. But in India, the shackles of colonial rule the dilemma of its children belonging to lower caste was unquestionably depressing.
Fight for freedom was rising even in young blood. Several instances of child execution have been witnessed by Indian History during British colonial period. Some of them are the Massacre of Jalianwala Baagh, the incidence of Chittagong (Currently in Bangladesh) and many more. The education of children was infused with a sense of patriotism. Some school teachers like Master-da, also known as Surya Sen trained those minds by educating them the rights they deserve. This started with a very small instance of some children’s right to play in their homeland and emerged as one of the remarkable revolution against the British rule in India. Some westerner may interpret such activities as terrorism, some may quote it as brain washing the young minds, but the base of all ideology they developed even being a child cannot be denied by a stringent notion of imperialism.
I question, how those young mind understood the values of freedom then, which at present point of time the adult-matured-old minds sitting in chairs cannot understand. I believe adult centrism was not there. What people like Surya Sen did were, inflicting the true sense of freedom that they deserved! Football was always been the game of Bengal and all those young bloods raised their voice against British rulers when they were refrained to play in their field. They approached the teacher, Surya Sen and asked them to help them. What happened next is a history which we all know. My question is surrounded in the realm of child’s mode of thinking only. The sense of freedom is in every child. Child’s mind seeks random locomotion, a freedom of exact sense. It wants to play, to sing, and to paint. It is not stable but it is developing every second. An adult is necessary to hold them if they fall or if they go beyond the boundary where the probability of danger persists (which the child is unaware of). I am not saying all that British did was wrong. In 1843, Lord Cornwallis established ‘Ragged School’: which was the first center for destitute children. During 1850-1919, several industrial and social upheavals took place and this called for the enactment of Apprentice Act as mentioned. This period also gave birth to Macaulay’s Frankenstein “Indian Penal Code’ and besides this Reformatory Act, 1876 also came into existence as mentioned below. This period was the shifting point of punitive to reformative philosophy. The freedom struggle is the reason due to which people realized and they pooled their common resources to eradicate the social evils instead of relying on a foreign regime which was not at all thinking about the preservation of childhood. This spirit of independence emerged a new sense of group social action level ((Luthra, 1970 at p. 90)). It is in this period when the country witnessed some of the major enactments which attempted to shape childhood, they are:
- Apprentices Act;
- Reformatory Schools Act;
- Factories Act.
I admit that the contribution of British rulers in abolishing sati and child marriage was appreciable. With the endeavor of personalities like Raja Ram Mohan Ray, a new dawn started. He awakened the people and asked them to give up their backwardness in thoughts, to overcome illiteracy, to not neglect upbringing of children. But the weight of exploitation of resources by British Rulers was heavier than whatever minimal good they did. Education played a vital role in changing the overall position of children in west. I am not saying that they have a perfect world. Even among them several practices are questionable but my objection is
Why has India failed to overcome this scourge of ill practices till date?
Why state never seriously took the charge and articulated its determination to elevate the condition of children?
There are several questions surrounding these failures from the side of the state. The Western societies, to a large extent, helped to change attitudes towards children. The resultant effect of all this was that a large number of dedicated visionaries, charitable and voluntary organizations, moved by the harrowing tales of children, worked relentlessly to improve the overall position of children in society along with that of women. All of them invested their time, knowledge and resources towards better health, education and growth of the weaker children. It was during this period when some organizations such as ‘The Children’s Society’ and ‘Balkan Ji Bari’ came into being in 1920s in the service of children belonging to the poor, uneducated and helpless families ((Supra note 11 at p. 18)). Imperialism had a very effect on the lives of all. As the country headed towards independence, several recommendations came to enact legislation for special care of children. One of them was Special Children’s Act.
But with the beginning of the First World War, the British Empire encountered several challenges. These were mainly linked to the issue of how they could build a society which would prevent the catastrophe of violence and cataclysm through which they had just passed. It will be wiser to notify that these cataclysms in several countries around the world on the civilians were responsible for the establishment of Committee on Child Welfare in 1919 under the aegis of League of Nations. The private participation also hopped into the confederacy for setting the standards for protection of child. One of the notable instances was the establishment of Save the Children International Union. This Union was founded by Eglantyne Jebb. She drew her experience from Balkans War. This Union drafted a five point declaration on the basic conditions a society should meet in order to provide adequate protection and care for its children.
Declaration of Geneva: A new hope?
The following year was very significant, as the Union managed to persuade League of Nations to adopt Declaration of Geneva. This declaration recognized that mankind owes to the child the best that it has to give. The Declaration was based on five important principles: The declaration widened the scope of care for children by brining the whole world under the shed of responsibility sharing. It made clear that the care and protection of children was no longer the exclusive responsibility of families or communities or even individual countries; the world as a whole has a legitimate interest in the welfare of all children. The five vital points of Declaration of Geneva are:
- Child must be given the means needed for its normal development, both materially and spiritually;
- Hungry Child should be fed; sick child should be helped; erring child should be reclaimed; and the orphan and the homeless child should be sheltered and succoured;
- Child must be put in a position to earn a livelihood and must be protected against every form of exploitation;
- Child must be brought up in the consciousness that its best qualities are to be used in the service of its fellow men;
- Child must be first to receive relief in time of distress.
It is well known that League of Nations was a great failure which gave birth to Second World War; which consumed the whole planet and brought huge chaos and suffering upon both combatants and non combatants of war. In the year 1945, as we are aware; the United Nations Organization came into reality by replacing the previously failed organization- ‘League of Nations’. In the very next year i.e. 1946, the ECOSOC of UN recommended for the reaffirmation of Geneva Declaration on Child. In that year only, UNICEF came up with its mandates. This specialized agency of UN assisted the children of Europe at that point of time. It also assisted the families who lost everything in war, to rehabilitate. Looking at the wonderful performance of UNICEF, it was later given the long term mandate of responsibility towards children who suffers the economic and political deprivations as well as the effects of war. To understand childhood, it is very much necessary to discredit the glory of any one class, religion, class and gender. It is necessary to empty out the way in which children and childhood so far has been realized.
But coming back to the situation of India, the issue remained unanswered. How far the Independence brought to this country, the freedom it deserves has to be put in question. The question rises is, if the independence has shown us the dawn of a new era from the perspective of child? I doubt if the coherence in the concept of childhood has been properly shaped. The nature of relationship between state, children and family has not yet been properly realized in terms of rights of the children. We have a long list of failed policies and schemes. The enforcement machinery lacks the courage to put on their shoes and look into the flaws. Why this is happening is matter of great debate. The way our constitution permits us, are we going accordingly? The role the administrator ought to play is not at all happening in true sense. The psychological impetus is not even there.
The Affronted Provisions of the Constitution
Constitution of India enunciated several provisions on the protection and development of child. The Part III and IV are mentionable. Let us see what our constitution is saying and what exactly happening:
|Article 14||Shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.|
|Article 15||Shall not discriminate against any citizen… (3) Nothing in this article shall prevent the State from making special provision for women and children. (4) Nothing … shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes|
|Article 19||All citizens shall have the right to freedom of speech and expressions, to form associations/unions; to move freely throughout the territory of India|
|Article 21||No person shall be deprived of his life or personal liberty except according to the procedure established by law|
|Article 21 A||Shall provide free and compulsory education to all children of the age of six or fourteen years|
|Article 23||Traffic in human beings, begging and other forms of forced labor are prohibited;|
|Article 24||No child below the age of fourteen shall be employed to work n any factory or mine or engaged in any other hazardous employment|
|Article||(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same|
|Directive Principle of State Policy|
|Article 39||(b) that the ownership and control of the material resources of the community are so distributed as best to serve the common good(e) the tender age of children are not abused.. and not forced by economic necessity to enter avocations unsuited to their age or strength;(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedm and dignity and that childhood.. protected against exploitation and against moral and material abandonment|
|Article 45||.. provide early childhood care and education for all children until they complete the age of six years|
|Article 46||…shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes,..|
|Article 47||.. raising of the level of nutrition and the standard of living of its people and improvement of public health…|
|Article 51||The State shall endeavor to- .. (c) foster respect for international law and treaty obligations..|
|Article 51 A||(k) .. parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years|
On a critical note:
From the previously mentioned table, it can be drawn that the constitutional mandates promotes, protects and preserves the rights of child. It puts a lot of responsibilities upon the state to take reasonable care of the child. However, author wish to draw some of the failures of states in drawing the mandates that they ought to follow. This is a fact to admit that, The Ancient principles which were decisive for the interlocking of “right” and “law” have disappeared, especially the idea that one’s right has a “valid” quality only by virtue of one’s membership in a group of persons by whom this quality is monopolized ((M Weber, ‘Economy and society: The Formal qualities of Modern Law’ in M.D.A. Freeman, ‘Llyod’s Introduction to Jurisprudence’ London Sweet and Maxwell Ltd. 2001 at p. 705)).
Author think our state forgot some vital points that I would like to reiterate ((http://www.childlineindia.org.in/pdf/Essentials-of-child-protection-Oct%2008.pdf)):
We adopted a National Policy for Children in 1974; which was a follow up of this commitment and being a party to the UN Declaration on the Rights of the Child in 1959 that policy reaffirmed the constitutional mandates and promised to provide adequate services to the children; both before and after birth to ensure their full physical, mental and social welfare. Has it done that?
Author describes the facts that came in front of the world in my latter half of this section, but before that I would like to point some further points that Government of India framed in 2004; also known as National Charter for Children. The objective was to revisit the affirmation that they failed to accomplish. It stipulated the failure on the part of State and community towards children. The very next year, GoI introduced a National Action Plan to realize the challenges in ensuring the rights of child. In 2006, it came up with a statutory body named National Commission for Protection of Child Rights. The Commission was given immense power to inquire into the complaints and take suo moto action on non-implementation of laws related to child.
The schemes of the state was launched without regarding the implications and even without addressing the vital basic points involved. One of the examples can be taken from Tamil Nadu Government’s 18 point program for the welfare of women and children, launched by the Government of TN on December 2001. According to government, the emphasis was given to balanced growth and development of children. However, the bigger issues such as compulsory education, public health, child care infrastructure and of course the abolition of dowry have not been addressed. And without regarding these issues into consideration, the attempt to authorize women and advance the status of girl child will be just futile ((Asha Krishnakumar, ‘A program without plan’ Frontline Vol. 19 February 2002 Also available at http://www.frontlineonnet.com/fl1903/19030410.htm last visited on 28th November 2012)). These are the major challenges that children in India are facing in this century.
Fig: The facets of child rights
As mentioned above, the multi-faceted problem related to child in India is a matter of huge concern and no doubt a subject matter of several discourses. The scope of this study intends to touch upon some of these major issues.
At the Universal level, the United Nations General Assembly adopted the Declaration of the Rights of the Child in 1959; which extended the five principles drawn early into ten principles, The Universal Declaration of the Rights of the child enshrines the following:
Indian Constitution is even older than this declaration. It is in third five year plan, when the realization of inter-sectoral co-ordination hits the mind of our state and they attempted to coordinate health, education and welfare services. As in this five year plan, it was recognized that child is a human being, who needs special care ((Available at http://planningcommission.nic.in/plans/planrel/fiveyr/3rd/welcome.html last visited on 28th November 2012)).
In June 1964, Department of Social Security was formed to ensure special care to child. Later this department has been renamed as Department of social welfare in 1966. In 1979, it received an independent status as Ministry of Social Welfare which is commonly known as Social Justice and Empowerment. Brief chronologies of the steps initiated by the state since then are as follows:
- To combat poor nutrition, the Applied Nutrition Program was introduced in 1963
- Food and Nutrition Board was set up in the department of Food in 1965
- Kothari Commission formulated National Education Policy 1968
- National Policy for Children was adopted in 1974 under fourth five year plan
- Right to Health became basic Human Right and following programs were initiated
- Mother and Child Health Program
- Special Nutrition Program
- Balwadi Nutrition Program
- Prophylaxis Scheme against Blindness due to vitamin A deficiency among children
- The Fifth Five year Plan shifted the focus from Child welfare to Child Development
- National Children’s Board came into existence
- Integrated Child Development Services was launched, 1975
- Government ratified ILO Convention No. 123 on minimum age of work
- 1979, declared as an international year of the child (IYC) by UNGA
- National Plan of Action was formulated in India to observe the IYC
- several state governments and NGOs took the initiative too
- In the same year the initial draft on the constitution of CRC came from Poland.
- In India, a fund was created to observe the objectives of IYC.
- 1978, India signed the Alma-Ata declaration and committed to the goal of ‘Health for all’ by 2000; which we couldn’t even after the decade of the set goal
- 1981 was declared as the international year for the disabled
- in the same year, the central child labour advisory board came into existence
- in 1983, National Health Policy was formulated
- the Government of India recognized the International Code on the Marketing of Breast Milk Substitutes as adopted by the World Health Assembly
- The Indian National Code for Protection and Promotion of Breast feeding was formulated
- in 1985, separate department of women and child development was set up
- in 2006, this status has been elevated to an independent Ministry of Women and Child Development
- 1986 saw the enactment of Juvenile Justice Act for tackling the problem of neglected children and child in conflict with law
- A scheme of Prevention and Control of Social Maladjustment was initiated in 1986-87
- Government enacted Child Labour (Prohibition and Regulation) Act in 1986
- National Child labour projects were initiated in the areas with high concentration of child labour
- in 1985, the scheme of district rehabilitation centres was introduced as a pilot project
- In 1986, the immoral traffic (prevention) Act came into force
- seventh five year plan set up a central adoption resource agency
- eighth five year plan started a scheme named ‘scheme of assistance to homes for infants (shishu greh) to promote in-country adoption
- Universal Immunisation Programme was launched in 1985
- Oral Rehydration Therapy Program was started to combat diarrhoea
- In 1986, the national policy on education drew an objective of ‘education for all’
- new scheme came under its roof, like Operation Black Board, District Primary Education Program, Non-formal education scheme
- The state governments too took some initiatives, like Shiksha Karmu project and lok jumbish project of Rajasthan, bihar education project, Andhra Pradesh primary education project
- India even promoted the decision of SAARC in child
Coming to the regime of Convention on the rights of children
This is a known truth that when a state ratifies the international code, it becomes the law in its territory. The government of India too ratified CRC on December 11, 1992. It cannot be denied that the CRC is the widest statement made by any universal body ever. It has drawn the basic principles of Declaration of the rights of the child. Let us have a brief look into the enactment itself:
Before we jump upon the analysis of CRC, we should emphasize on what is childhood?
UDHR played the point of ‘motherhood and childhood’ in article 25. According to the said provision,
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
From the said provision, it can be drawn that the childhood seeks ‘special care’. Here, the term special puts an emphasis. But upon whom, the responsibility has been bestowed? The term assistance has also been used with care. Therefore, UDHR bestows a responsibility upon the state to provide care and assistance to childhood. The term childhood has a wider connotation.
It is an age span ranging from birth to adolescence. It has been divided into early childhood, middle childhood and adolescence. Therefore, the State’s responsibility is to take special care throughout the whole period, till it reaches adolescence
The State’s Role: The International and National schematics
The present understanding of childhood is rooted in the historic and social conditions around the liberal thinking during the eighteenth and nineteenth centuries ((Andressa Gadda, ‘Rights, Foucault and power: a critical analysis of the United Nation Convention on the Rights of the Child’ Edinburgh Working Papers in Sociology, Vol 31 January 2008 at p. 3)). Two major developments arise from the understandings about childhood: the development of CRC and of right’s discourse ((Ibid)). This is a known and accepted fact that childhood is a socially and historically built concept now. As we know that since 18th century the concept of childhood gathered the modern notion of child rights. Before that, child was children were depicted as savages who need strict control. It is due to the variation in the society; the concept of child as an innocent being came up. But the modern notion of childhood is overlaps with the materialization of several other concepts such as family, individuality, privacy, educational institutions and above all the welfare state.
In the eighteenth century, the liberal theory was on the zenith. It challenged the idea of the people as subjects of a king, instead, introducing the idea of capable citizens who engage in consensual relationships with the state- the state’s function then became to protect the rights of its citizens ((Supra note 20 at p. 4)). It is at that point when there was a demarcation in the categories of the people:
At that point of time, the rights were matter of luxury granted only to those who had the capacity to be an active agent. According to the rationale of that time, it was a rational adult middle and upper class males. From here generates the ideology of Adult-Centrism. The liberal theory of that century gave birth to a difference, i.e.
Question over the attainment of the Age of Reasoning
The creation of childhood as a concept in direct antagonism to that of adulthood serves to establish and reinforce hierarchical relationships typical of the power that had emerged during that period. As according to Stephens:
“The ideological construction of childhood as privileged domain of spontaneity, play, freedom and emotion could only refer to a society that contained and drew upon this private domain as the ground for public, culture, discipline, work, constraint and rationality”
Therefore, the present concept of childhood evolved as a consequence, or rather consolidation of new emergent powers which are:
- Adult over children;
- Middle class over working class;
- Western universalism over cultural relativism.
The child needs to be introduced to the liberal doctrine in order to become fully rational and eventually gain the right to full citizenship ((Supra note 20 at p. 5)).
But one important point that has been noted by several scholars is the critical value to the new international ethical order and in order to achieve this value, the child have to undergo surveillance of responsible adults. I believe, a child without the guidance of the adult can achieve any of the following:
- Normalization and surveillance;
- Proper training;
All these process are very gradual and it can be achieved gradually. It is a slow learning procedure. In order to take them in a roper track several disciples are necessary; child psychology is one of them and its technicians i.e. psychologists are the holders of knowledge about children.
Critique over Convention of Rights of the Children : The Rights discourse and Power Configuration
One of the emergent rights movements of the later century (i.e. 19th Century) is related to women. The emergence of these women rights movements brought a new force against the long prevalent male hegemony. Simultaneously, the child rights also started to mobilize. One can draw a line of difference between child rights movements and other civil rights movements:
The Civil rights movements were organized by members of concerned groups but the child movements were not organized by the children by themselves but they were organized by the groups who believed that it is their moral responsibility to protect the ideals of childhood.
There are considerable critiques that can be drawn against the Convention on the Rights of Child, they are as follows:
- First an
- d foremost, CRC does not take the cultural diversity into consideration;
- Declaration of universalism on child’s rights gives the children the right to be remade in the image of adults and non- western childhoods the right to be remade in western forms ((Supra note 20 at p. 13));
- The CRC adopts the western rod of morality and ideal neutrality. Therefore, the nation who denies to measure their ideals of morality with their scale of morality, they declare them as immoral and savage;
- The rights of the child are not the monopoly of the western world. There are more children comparatively in continents like Asia, Africa and Middle East; who are suffering a lot due to the “Humanitarian claim” of these western world;
- CRC hails for the right to participation, provision and protection. Among them, the CRC emphasizes more on the right to participation; which is again the most problematic set of rights. if we refer Article 12 of the CRC;
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
Here the right to participate as prescribed in Article 12 in most cases conflict with other forms of rights, such as the right to parental guidance as mentioned in article 5. This right in article 12 does not ensure de facto right for the equal participation for all children throughout the world, can come up with the claim of rights only after they hers aware of those rights. Most of the children in non western world are still unaware of their rights.
The penultimate point is the absence of their (children from eastern world) participation when the CRC was draft.
Power exercised in this way is no longer public, but its tools are ((Supra note 20 at p. 9)). The tools that power is exercised through are the disciplines, such as psychology and education. Thus, the re-conceptualization of childhood which took place in this historic period occurred so that children were no longer controlled through corporal punishment, but through surveillance. Childhood as a time of virtuousness and reliance has to be protected from the ruthless realities of the adult world. Thus, education is institutionalized and children’s development is to be kept under close surveillance of the technicians of each discipline, i.e. teachers, social workers, psychologists.
The Best Interest Principle versus Adult-Centrism
Despite the critique that has been drawn, one truth is inevitable and that is the dynamism of CRC. Previously, the child was an object in need of attention but CRC made it a subject in need of attention and protection. The new dimension of child rights lies in two vital sections:
These two articles are the vital principles of the Child Rights Convention. They are:
- The right to have her/his best interests evaluated;
- The right to be heard/ to have her/his opinion taken into account.
These rights are not only available to every single child, but also extended to children as a group of Human beings according to their age i.e. under 18. But these articles are the “clé de voûte” of this challenging posture ((Jean Zermattern, ‘The Best Interest of the Child: literal analysis, function and implementation’ Working Report Institut International Des Droits De Lenfant 2010 at p. 3)). But even today, we have so many questions to put forth over the best interest of child. Even though UN promulgated the CRC, but we have no answer over the impact that the new dimension have. The problem lies over these two opposite nodal points
The answer may be Rights based loom or by giving affect the responsibility deriving from the point of the child/children as effective and substantive right-holders. But the problem lies over the acceptability of the new dimensions in every national standard. As the cultural perspective is subjected to certain protection, it is hard enforcing a universal standard. From the rights based perspectives also, the right to preserve one’s culture is entitled to be protected from any infringement. Here the problem lies over the harmonization that is a distant dream or may be like a horizon that we may never achieve but pursue.
The Child Rights convention offers Protection to children from labor and sexual abuse. The domains of protection are:
- Protection against Torture;
- Protection against the involvement in the armed conflict;
- Protection against trafficking;
- Protection against Drugs;
- Protection unjustified privations of freedom;
- Protection against separation from parents without just cause.
Adultrism had a batter from CRC
One of the major advancement or threat CRC gave to the world is the right to Participation under article 5 ((Article 5 of Convention on the Rights of the Child: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention)). This is also termed as “Notion of evolving capacity”. The child is no more a passive member who must only be cared for; she/he now has the possibility of becoming an active participant in her/his own life ((Ibid at p. 5)). It is the well-being of the child that has been evolved to best interest of the child. This has been newly germinated in Article 3 of CRC. But this concept has not yet been the subject of comprehensive study.
The concept of the best interest of the child can be found throughout the convention.
The State Parties have numerous obligations to consider the best interests of individual children in relevant decision-making processes, above all inn family law:
This concept has been followed in other International Standards like UN Convention on the Rights of Persons with Disabilities ((Article 23 (2)- States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.)). The Hague Convention on protection of Children and Cooperation in Respect of Inter-country Adoption ((Article 4 (b)- An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin – a) have established that the child is adoptable; b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests)).
The Trend of Child Study
Based on the approach made by Comenius, two trends have been reached:
The first kind of trend receives a major importance both directly as well as indirectly from several social reformers such as Locke, Hobbes, Rousseau, Pestalozzi, Herbert and Froebel. But it’s the second notion, which has been proved to be more productive. The only reason is its close view approach. This trend has its roots in 16th century itself. The pediatric literature of that century even referred the current problems associated with child. It was Pestalozzi, who made the first scientific observation of a three and half year old kid. Later, Tiedemann of Germany made a biological record of Child Study. But among these all, the work of Millicent Shinn’s (The Baby’s Biography) received huge appreciation.
Developmental Psychology: A New Dimension of Child Psychology
Understanding the whole development of Child is a challenging job and it can only be achieved by a proper methodological study. The development of the Speech, emotions and even their inclination to games are just few. The child’s interest is not stable and it varies with age of the child. Therefore, it is hard to conclude a hard and fast principle of child development. Therefore, the term “Child Psychology” has been changed to “Child Development”. To understand the difference between Child Psychology and Child
Development, Hurlock has specified the following points:
- Child Development emphasizes on the process while the child psychology focuses more on the substance and products of development;
- Illustration: The Child Psychology will focus on the vocabularies while child development will focus on “How a child learn to speak”
- The emphasis of nature is more in case of child development. It focuses more on the environment of the child than that of child psychology;
- The amplitude of the child development is far more than that of child psychology. It is not in a strict sense as mentioned in the previous point. Even the child psychologists take the environment factor into account but the ambit is higher on determining the other variables of environment;
- One of the major points that have been analyzed by Hurlock is the objective criteria-
- In case of child psychology, the emphasis is on the child behavior while on the other hand Child Development has following objectives to find out:
- The age changes in appearances, behavior, interests and goals from one period of development to another period of development;
- When these above changes occur?
- At what conditions these changes occur?
- How these changes influence the child’s behavior?
- If this changes can be predicted;
- If these changes are individualistic or common in every children.
- In case of child psychology, the emphasis is on the child behavior while on the other hand Child Development has following objectives to find out:
- The developmental child psychologists have extended theory area of interest beyond to realize the best for the child.
The best interest of the child shall be a primary consideration
This sentence has a very heavy weight in itself. The concept is a rule of procedure. The expression gives an impact on the life of the child. The decision making body shall consider the effect of the decision on the child or group of children. Hence, it must carefully consider the possible impacts; both positive and negative. This is a procedural rule. On the other facet of the best interest of the child, the foundation of a substantive right has to be considered. The guarantee that this principle will be applied whenever a decision is to be taken concerning a child or a group of children. States has an obligation to put in place mechanisms that will facilitate consideration of the best interests of child, and must provide legislative measures to ensure that those with the authority to make decisions regarding children must consider the ‘best interests’ rule as a matter of procedure ((Supra note 25 at p. 8)). In fact, the right to have one’s interests considered doesn’t exist. It is not clear about the certainty about the best interests of a particular child or group of children.. The best interest principle must regard:
- The significance child as an individual and his/her opinion has to be taken into account;
- Bets interest needs to be assessed properly by the decision makers as a part of a process where rules of procedure will be applied
- Not only the present but also the long term future perspective of the child has to be considered;
- An interpretation that is not ‘cultural relativist’ or denies other rights of the CRC.
The Genetic tests prior to marriage can be an alternative but how far the state can bind them; is matter of question, as several ethical issues may germinate (as that happened in case of immunization of the babies). Educating the adult as well as the child should be the first task to accomplish. We seek something which is more objective form of knowledge about child. Without clarity, there is a probability that different decisions can easily be justified as being the best interest of the child. Another vital perspective is the political dimension of this ideal. This requires the law-makers to ask the primary questions with respect to the potential effects of the legislations relevant, upon the child. According to me, we are distantly placed from the accomplishment of the particular enactment.