Law and the Mother – Maternity Benefit Act

Raghavi Viswanath

History bears testimony to the fact that maternity has been viewed as a disability. Since the times of the Industrial Revolution, pregnant women have been treated as a liability. Employers have expressed no qualms with regards to dismissing pregnant women from service without granting them pay for the maternity period.

Most countries have taken time to acknowledge and internalize the concept of women’s rights. While the Indian Constitution does embody the French idea of equality through Part III, this legal acceptance has not translated into reality. The intention of the legislators can be inferred from the fact that under the Indian Factories Act, the term ‘workman’ has only been defined. For that matter, the General Clauses Act also solely employed the term ‘man’ and subsequently generalized it to include females.

The Maternity Benefit Act is one of the first legislations that were enacted exclusively to secure the interests and rights of women. Enacted in 1961, it permits women to avail of 12 weeks (either before or after the date of delivery) of maternity benefit and the average pay for the period of absence. Before the amendment of 1989, the woman was entitled to maternity benefit only after the delivery. However, after the 1989 amendment, , the woman employee can claim maternity benefit ,under Section 5, for a period not exceeding six weeks preceding the date of delivery. The Act also entitles women who’ve had miscarriages to 6 weeks leave with average pay. It provides medical bonuses ranging from Rs. 1000 to Rs 10,000, subsequent to the 2008 amendment.

The Maternity Benefits Act applies to establishments and factories other than those covered under the Employees’ State Insurance Act. Women who have served the establishment for a minimum period of 80 days in 12 months preceding the date of delivery are eligible for the benefits under the Act. Interestingly, the first Maternity Act was passed by the Bombay Legislature way back in 1929 based on the Recommendations of the Royal Commission on Labor in India. This reflects the growing pressure on the Central Government to create a protective regime for women workers ((Shashi Bala, Implementation of the Maternity Benefit Act, V.V.Giri National Labor Institute, 2012)).

As per the Act, no employer can dismiss or discharge a woman from services during the maternity benefit or give a notice to that effect. For failure to pay maternity benefit or dismissal and discharge of a woman as under the provisions of the Act), the employer is liable to imprisonment up to one year and Rs.5000.

Constitutionally, Article 15 (3) permits the government to indulge in ‘protective discrimination’ and enact legislations to compensate for the subsistence lost by women due to their disadvantaged physical structure.  Article 42, of the Directive Principles of State Policy requires that the State shall make provisions to ensure humane work conditions and provide maternity relief. This Article lays down the standard of legal efficacy that any service rule made by establishments should be judged by ((Judicial View on Shortage of Attendance,http://legalperspectives.blogspot.in/2010/09/judicial-view-on-shortage-of-attendence.html,09/08/2014)). The right to health and safe working environment that is available to pregnant women is enshrined in the umbrella Article 21 also.

The International Labor Conference, in its first conference in 1919, adopted the Convention on Maternity Protection and the Convention concerning the employment of women before and after childbirth (Convention 3). The first convention stated that no woman shall be permitted to work in any industrial or commercial undertaking for a period of six weeks after delivery and will be entitled to maintenance benefits for herself and her child. This Convention was revised in 1952 to allow women to be absent from work for a period for six weeks preceding her confinement. The maintenance amount was to be determined by the competent authority in each country ((W.B Creightan, Working Women and Law, London: Mansell (1979).)).

The issue of termination of services of pregnant women was considered by the Court in the case of Air India v Nargesh Mirza ((AIR 1981 SC 1829)). In this case, under the Air India Corporation Act, an air hostess was to retire upon (i) attaining 35 years of age; (ii) Upon marriage within four years of service; (iii) on her first pregnancy.

The Court undertook an adjudication of the constitutionality of each of the three conditions with respect to Articles 14, 15 and 16. The age limit prescribed was subject to the discretion of the Managing Director who could retain some air hostesses up to the age of 45. The Court held that this unfettered authority vested in the Managing Director contravened the Wednesbury principles and were founded on arbitrariness.  The Court went on to hold that terminating the services of a woman employee upon pregnancy was a curtailment of her individual choice to have children and both of these conditions were struck down as unconstitutional. However, it maintained the fine distinction in the subject-matter of Articles 15 and 16 and enunciated that the said provisions prohibited discrimination solely on grounds of gender excluding all other considerations.

The right to employment of pregnant women was discussed in the celebrated case of NeenaMathur v Life Insurance of Corporation ((AIR 1992 SC 392)). The petitioner, Ms. Mathur was put on probation for six months subject to a satisfactory work performance report. However, she was dismissed from service during her probation period when she applied for maternity leave. The Supreme Court directed LIC to reinstate her. The Court also discovered that the application form required women to divulge details of their menstrual cycles and past pregnancies. The Court held such conduct to be violative of the right to privacy (Article 21) and ordered LIC to delete such questions from future questionnaires.

The provisions of the Maternity Benefit Act were questioned before the Courts in the case of Municipal Corporation of Delhi v Female workers ((AIR 2000 SC 1274)). In this case, the Union of Female workers claimed that they should be treated as regular workers under the Maternity Benefits Act despite the fact they had been employed under Muster roll and were temporary workers. The Court held that their claims were constitutionally sound and in consonance with Articles 39 and 42 of theConstitution.

The Act, nevertheless, is is not free of flaws. It re-enforces the parochial notions of burdening the woman with the responsibility of nurturing the child. Furthermore, the prescribed maternity leave is not sufficient for the woman to recuperate after the delivery and does not take post-natal risks into account. During the 44th Indian Labor Conference in 2012, it was proposed that the period of maternity leave should be increased to 24 weeks from 12 weeks. However, the Minister for Labor and Employment put these doubts to rest stating there the government had no plans of amending the existing provisions of the Act ((Available at http://loksabha.nic.in/)).

It needs to be noted that the Indian social milieu is gradually becoming more progressive. It has come to accept the fact that maternity benefits are a form of social security that guarantees remuneration for women despite the fact that their productivity might decrease and they may be absent from work during the child bearing process. Such legislations embody the State’s commitment to provide a gender-friendly and accommodative work environment for women employees.

Misuse of sexual harassment laws in India

Raghavi Viswanath

The Indian judiciary has seen a decelerated evolution with regards to sexual harassment laws. This article seeks to highlight and analyze the various flaws in the legal apparatus to deal with sexual harassment as it exists today.

One of the most dubious provisions is Section 498-A of the Indian Penal Code. While the provision has been created to protect women from marital violence, the arbitrariness that it confers upon the police authorities as well as the women who allege domestic violence has been received with opprobrium and accused of fostering misogyny. Domestic violence under Section 498-A is a cognizable, non-bailable and non-compoundable offence. Such an arrangement lets no room for out-of-court settlements. The petitioners do not have the option of revoking the charges. Complaints filed under this Section also warrant immediate arrests of the husband and the family members where necessary. A necessary implication of the non-bailable nature of the offence is the bleak possibility of the marital relationship being restored. The impact of these consequences is manifold because the charges are irrevocable. Statistics show that in the period of 2011-2012, there was a 9.4% increase in the number of cases registered under Section 498A ((SauravDatta, What Powers the “Section 498-A misuse” bandwagon?, 5 July, 2014, available at http://www.dnaindia.com/india/standpoint-what-powers-the-section-498a-misuse-bandwagon-1999791, accessed on 24th January,2015)). However, its counter-narrative lies in the fact that the conviction rate is a miserly figure of 15% ((ibid)).

Suggestions have been made to amend the provision that has oft-been termed diabolic. The Malimath Committee on Criminal reforms (2003) suggested that the offence under Section 498-A be made compoundable and bailable. This view was reiterated in the 243rd Law Commission Report. Justice CK Prasad in his judgment in the case of Arnesh Kumar v State of Bihar ((SLP (CRL.) No.9127 of 2013))also highlighted the pressing need to balance the interests of the woman as well the stability of the family.

Another legal breakthrough is the Sexual Harassment of Women at Workplace Act, 2013 that was enacted after more than a decade of deliberation and re-examination. The landmark judgment of the Court in the Vishakha case was accompanied by a set of guidelines, in lieu of India’s international and constitutional commitments( such as the Convention on Elimination of All forms of Discrimination Against  Women and the right to safe work environment and right to freely practice one’s profession enshrined in Articles 19(1)(g), 15(3), 21 and 14).The Act , in the backdrop of the Court’s decision in the MedhaKotwal case and the Vishakha case, laid down a framework for investigation of complaints of sexual harassment . The mandatory nature of the Act can be attributed to the prescribed punishment for non-compliance. It not only protected the female employees, but any woman, whether employee or not, who was sexually assaulted within the premises of workplace as defined in Section 2(o) of the Act.

The Act has been touted to be the torchbearer of feminist legislation for several reasons, Firstly, the Act is not gender neutral and men are barred from filing similar complaints. The employer is also held liable for sexual harassment in places like taxis, hotels and also the offices of clients, where the employer hardly has any authority or control ((Available at http://www.avoiceformen.com/feminism/feminist-governance-feminism/indias-new-sexual-harassment-at-workplace-law/, accessed on 24th January,2015)). The investigation Committees such as the Internal Complaints Committee and the Local Complaints Committee have powers equivalent to a civil Court as enumerated in Section11.  However, the members of such Committees need not have any legal backing. The ambiguity of such criteria is heightened in the case of the Local Complaints Committee where the Presiding Officer should be ‘committed to the cause of women’( used in Section 4 and Section 7 of the Act), a subjective standard that can be neither justified nor disproved. Moreover, the inclusion of such a criterion suggests pre-conceived gender biases and this violates the general standards of impartiality.

The Act does not fall within the domain of the Right to Information Act. Therefore, details of false complaints or fabricated cases will not be available. As per Section 15 of the Act, action will be taken for false complaints. However, if the complaint is not substantiated, then the woman will be provided complete immunity. Furthermore, the identity of the woman will be kept confidential even in cases of false complaints. The compensation prescribed under the Act eschews the principle of equality before the law as it is awarded progressively, proportionate to the income earned by the respondent.

The draconian character of the legislation has drawn the attention of several authorities. The Central Administrative Tribunal, in a bench comprising of Judges KB Suresh and PK Pradhan, adjudicating upon cases of sexual harassment at the workplace, characterized Section 4 and 7 of the Act as ‘unconstitutional’ ((Krishnaprasad, CAT finds illegality in law against sexual harassment at workplace, The Hindu, 13 July, 2014, available at http://www.thehindu.com/news/national/karnataka/cat-finds-illegality-in-law-against-sexual-harassment-at-workplace/article6204747.ece, accessed on 24th January, 2015)). The Bench held that the legislation was ‘double-edged’ and the Vishakha Committees found sufficient leeway for manipulation. The fear of punishment compelled even the higher echelons of authorities to dismiss their employees even before adjudicating the merits of the complaint.

On the flipside, the existing framework has been misused to impede justice to the female victims in most situations. Marital rape, in India, continues to be a standing example of such travesty of justice. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed ((Priyanka Rath,  Marital Rape and the Indian legal scenario, India Law Journal, Available at http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html, accessed on 24th January, 2015)).

With the case of R v R (([1994] 4 All ER 481 [HL])), the English Courts widened the ambit of sexual harassment by recognizing marital rape. This judgment negated the oft-believed concept that marriage leads to natural implication of consent of the wife to sexual intercourse.  However, marital rape still eludes the Indian legal framework.  The root cause of this problem lies in the archaic construction of the statutory provisions pertaining to rape, namely Section 375 and Section 376 of the Indian Penal Code, both of which explicitly exclude sexual assault on the wife. The law further discriminates between marital bonds and prescribes punishment for marital rape only if the wife is under 16 years if age beyond which she has no remedy. Furthermore, since according to Section 122 of the Evidence Act, the communication between a husband and a wife cannot be treated as evidence unless for a persecuted offence, law does not allow any evidence for corroboration of marital rape.

While the 172nd Law Commission report did suggest changes to broaden the scope for justice by deleting Section 376 A, the victim suffers a ‘second rape’ in the hands of the law itself. The procedural laws are also used against the interests of the victim to stifle her. One of these defenses is Section 155(4) of the Evidence Act under which the victim can be questioned about her past. The element of physical evidence to prove lack of consent has deterred several victims, especially in the lower Courts. As India matures as a democracy, it is imperative not only for laws to be enacted, but adequate safeguards to prevent their abuse so that the best interests of the victim are promoted.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – An Analysis

Vishnu S Warrier

Sexual harassment is an act that creates a hostile working environment which may be by way of cracking lewd jokes, verbal or physical abuse, circulating lewd rumors etc. Though, India had signed and ratified Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) way back in 1993, we did not have a specific legislation to address the issue of sexual harassment at Workplace. Till 1997, facing victim of sexual harassment at the workplace had to lodge a complaint under Section 354 ((Criminal assault of women to outrage women’s modesty))and 509 ((Assault or criminal force to woman with intent to outrage her modesty))of the Indian Penal Code 1860. However, scenario changed when Supreme Court stipulated the famous Vishaka Guidelines though its landmark judgment in Vishaka and others v State of Rajasthan ((Word, gesture or act intended to insult the modesty of a woman)).

Further, Court observed that, the consideration of “CEDAW and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.” Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers. Accordingly, Government of India passed the Sexual Harrassment of Women at Workplace (Prevention, prohibition & Redressal) Act ((Hereinafter the Act)), to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto, and the same has been made effective on December 9, 2013 ((Gazette Notification dated December 9, 2013)).

The Act will ensure that women are protected against sexual harassment at all the Workplaces, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth ((Press Information Bureau, Government of India (Dated November 4, 2010). Protection of Women against Sexual Harassment at Workplace Bill, 2010, last accessed on December 12, 2013.)).

Key Features of the Act

Sexual harassment at Workplace

The Act defines sexual harassment to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature ((Section 2 (n).)). It may further include any promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems ((Section 3 (2).)).

Workplace, Employer, Employee

Workplace is defined to include all organizations, and any other places visited by an employee during the course of work ((Section 2 (o).))and it covers every woman at the work place whether employed or not ((Section 2 (f).)). Further, the Act defines employer as the person responsible for the management, supervision and control of the work place ((Section 2 (g).)).

Internal Complaints Committee & Other Local Committees

The Act insists upon the formation of an Internal Complaints Committee in every workplace, as per the provisions of Section 4. It further provides that, where the offices or administrative units of the workplace are located in various places, Internal Complaints Committee shall be constituted in all such units.

The Act also empowers the District Officer to constitute Local Compliant Committees in every district. And such Local Committee shall include an eminent woman who is working in the area of Social Work and committed towards the cause of women, as the Chairperson, and two members from an NGO committed to the cause of women ((Section 7)).

Duties of Employer

Chapter VI of the Act entrusts certain duties upon the employer ((Section 19)). Under which, every employer has to;

  1. Provide a safe working environment at workplace;
  2. Constitute an Internal Complaints Committee and conspicuously display the order constituting the Committee;
  3. Organize workshops and other training programmes at regular intervals for sensitizing employees;
  4. Provide assistance during any inquiry;
  5. Initiate actions against the perpetrator; and
  6. Provide assistance to the women if, she prefers to file complaint under the provisions of Indian Penal Code.

Redressal mechanisms – Complaint filing & Inquiry initiating

Chapter IV of the Act prescribes the procedures to be followed in filing complaint. Under the provisions of this Act, aggrieved women shall make a complaint in writing to the Internal Complaint Committee within three months of the last incident. In case the women is not in a position to file complaint due to her physical or mental incapacity, death or otherwise, her legal heir shall file the complaint ((Section 9)). In the absence of Internal Complaint Committee, complaint shall be filed with the Local Committee ((Id.)).

The Committee is required to complete the inquiry within a time period of three months. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be. They are mandated to take action on the report within two months. On request from the complainant, the committee shall provide for conciliation ((Section 10)). Complainant may also seek other remedies, including initiating criminal proceedings under the provisions of any other laws in existence.

Penalty & Appeal

The Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act, in case the allegations are proved. Besides, the Committee may provide for monetary compensation to the complainant. Further, whoever contravenes the provisions of Section 16 ((Prohibition of Publication or making known contents of complaint and inquiry proceedings)), shall be punished with a fine of Rs. 5000/- ((Section 17)). Any person aggrieved by the recommendations of the Committee, shall appeal within 90 days of the recommendations. All such appeal shall be preferred to a Court/Tribunal ((Section 18)).

Analysis & Major Issues

  1. Act insists upon the employer to constitute an Internal Complaints Committee at every unit. Practically, it may be impossible for big employers.
  2. Definition of employee is in its wider sense. Hence, it could be interpreted that, even a “domestic worker” who is working at home shall come under the protection of this Act.
  3. Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country needs to have one such person in the Committee. There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available ((PRS Legislative Brief, The Protection of Women against Sexual Harassment at Work Place Bill, 2010 available at http://www.prsindia.org/uploads/media/Sexual%20Harassment/Legislative%20Brief%20-%20Sexual%20Harassment%20-%2020May11.pdf last accessed on December 12, 2013.)).
  4. Act doesn’t provide the maximum number of members which shall form part of the Committee.
  5. The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. however, the composition of the Internal Committee does not require any member to have a legal background. Moreover, the Act does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge ((Id.)).
  6. Act provides that every District Officer shall constitute a Local Complaints Committee in the district. However, jurisdiction and functions of these committees have not been detailed. It is also unclear whether the block or taluk level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases only.
  7. Act provides that in case a committee is of the opinion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. However, the provision also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant. Though there may be merit in providing safeguards against malicious complaints, this provision penalises every false complaints, which may not be malicious. This could deter women from filing complaints.

*** This article was initially published at eMagazine of ICSI Mysore Chapter (Edition 121, February 2014)

Rights Of Children Who Are Victim Of HIV AIDS

Author : Swapan Deb Barma
Whether the children of AIDS (HIV) victim get same treatment without being discriminated in comparison with normal children. Let’s have a look on this issue
United Nations International Children’s Emergency Fund (UNICEF) is committed to protecting every child from violence, exploitation, abuse and discrimination. But given prevailing social, economic and cultural inequities in India, a large number of children, especially girls are forced to work in inhospitable, unsafe and exploitative conditions. Some of these children are members of families living in remote areas with few, if any, livelihood options. Others are part of units that are on the move – caught up in unrelenting cycles of migration in search of work .

Despite Constitutional guarantee of civil rights, children face discrimination on the basis of caste, religion and ethnicity. Even the basic need for birth registration that will assure them nationality and identity remain unaddressed, affecting children’s right to basic services. Everyday news of children dying of starvation, dipping sex ratio, child marriage, child trafficking, child abuse, etc. is very common. Violations of children’s rights are not limited to poor and downtrodden only .
WHAT IS AIDS?
Acquired immune deficiency syndrome or acquired immunodeficiency syndrome (AIDS) is a disease of the human immune caused by the human immunodeficiency virus (HIV). This condition progressively reduces the effectiveness of the immune system and leaves individuals susceptible to opportunistic infections and tumors. HIV is transmitted through direct contact of a mucous membrane or the bloodstream with a bodily fluid containing HIV, such as blood, semen, vaginal fluid, preseminal fluid, and breast milk.[4][5] This transmission can involve anal, vaginal or oral sex, blood transfusion, contaminated hypodermic needles, exchange between mother and baby during pregnancy, childbirth, breastfeeding or other exposure to one of the above bodily fluids .
HIV lives in white blood cells and is present in the sexual fluids of humans. It’s difficult to catch and is spread mostly through sexual intercourse, by needle or syringe sharing among intravenous drug users, in blood transfusions, and during pregnancy and birth (if the mother is infected). Using another person’s razor blade or having your body pierced or tattooed are also risky, but the HIV virus cannot be transmitted by shaking hands, kissing, cuddling, fondling, sneezing, cooking food, or sharing eating or drinking utensils. One cannot be infected by saliva, sweat, tears, urine, or feces; toilet seats, telephones, swimming pools, or mosquito bites do not cause AIDS. Ostracizing a known AIDS victim is not only immoral but also absurd .
HOW CHILD ARE AFFECTED BY AIDS AND HIV
More than 1,000 children are newly infected with Human Immunodeficiency Virus (HIV) every day, and of these more than two thirds will die as a result of AIDS because of a lack of access to HIV treatment.1 In addition, millions more children every year are indirectly affected by the epidemic as a result of the death and suffering caused in their families and communities.
Preventing HIV infection, providing life prolonging treatment and relieving the impact of HIV and AIDS for children and their families and communities is possible. However, a lack of necessary investment and resources for adequate testing, antiretroviral drugs, and prevention programmes, as well as stigma and discrimination, mean children continue to suffer the consequences of the epidemic.
THE NUMBER OF INFECTED CHILDREN
The figures below show the number of children (defined by UNAIDS as under-15s) directly affected by HIV and AIDS:
•At the end of 2008, there were 2.1 million children living with HIV around the world.
•An estimated 430,000 children became newly infected with HIV in 2008.
•Of the 2 million people who died of AIDS during 2008, more than one in seven were children. Every hour, around 31 children die as a result of AIDS.
•There are more 15 million children under the age of 18 who have lost one or both parents to AIDS.
•Most children living with HIV ¬– almost 9 in 10 – live in sub-Saharan Africa, the region of the world where AIDS has taken its greatest toll.
In countries with an HIV prevalence of above 5%, child mortality rates have not fallen in line with global trends. This is most probably due to the high risk of mortality associated with untreated HIV infection in young children.
•In 2010, the number of children who have lost one or both parents to AIDS is expected to reach 25 million.
•Over 15.7 million AIDS orphans live in Sub-Saharan Africa, alone.
•Experts believe that millions more orphans remain unaccounted for in India, China and Russia.
The Impact:
•In addition to the trauma of losing a parent, orphans are often subject to discrimination and are less likely to receive healthcare, education and other needed services.
•In HIV affected households lacking community support, food consumption can drop by 40% putting children at risk to hunger, malnutrition and stunting.
•Impoverished and often without support to educate and protect them, orphans and vulnerable children face increased risk of HIV infection.
•Orphans are often easy prey to many forms of exploitation: forced labor, prostitution and child soldiering MOTHER-TO-CHILD TRANSMISSION
Nine out of ten children infected with HIV were infected through their mother either during pregnancy, labour and delivery or breastfeeding. Without treatment, around 15-30% of babies born to HIV positive women will become infected with HIV during pregnancy and delivery and a further 5-20% will become infected through breastfeeding. In high-income countries, preventive measures ensure that the transmission of HIV from mother-to-child is relatively rare, and in those cases where it does occur a range of treatment options mean that the child can survive – often into adulthood. This shows that with funding, trained staff and resources, the infections and deaths of many thousands of children could be avoided .
‘MOTHER-BABY PACK’ INTRODUCED
To help these women gain access to preventive care, UNICEF and its partners have developed a product inspired by the very innovation that benefitted Ms. George and Mankhube: the package of pre-measured PMTCT medicines pioneered by Lesotho’s health workers.
UNICEF’s recently introduced ‘Mother-Baby Pack’ is a take-home box containing all the anti-retroviral drugs and antibiotics needed to protect the health of one mother and child. Colour-coding and simple graphics help mothers identify which of the individually packaged medicines to administer during pregnancy, delivery and breastfeeding.
UNICEF is rolling out the Mother-Baby Pack in four sub-Saharan African countries: Cameroon, Kenya, Zambia and Lesotho .
BLOOD TRANSFUSIONS
HIV infection can occur in medical settings; for instance, through needles that have not been sterilised or through blood transfusions where infected blood is used. In wealthier countries this problem has virtually been eliminated, but in resource-poor communities it is still an issue. The most large scale case of infections among children resulting from contaminated injections and unscreened blood transfusion occurred in Romania between 1987 to 1991 when more than 10,000 babies and children were infected with HIV as a result of unsafe medical practices.
Unsafe blood transfusions have also led to hundreds of HIV infections in countries in the Central Asia region, namely Kazakhstan, Kyrgyzstan and Uzbekistan from 2006-2008. The widespread reuse of injection equipment as well as encouragement by doctors motivated by financial reasons to carry out ‘unnecessary blood transfusions’, led to the infection of at least 119 children in Kazakhstan and at least 150 in Uzbekistan from 2007-2008.
Although official statistics claim that unsafe injections account for a small percentage (2.5%) of HIV infections in sub-Saharan Africa, this is contested by a number of researchers. HIV prevalence in children can be 1 to 3 times higher than that of pregnant women in antenatal clinics and in one study as many as a fifth of children who were not sexually active had HIV negative mothers: suggesting that the children were infected through contaminated medical procedures.
INJECTING DRUG USE
In central and Eastern Europe, where injecting drug use fuels the spread of HIV, young people living on the street are found to be especially vulnerable to HIV through injecting drug use. In St Petersburg, a study of more than three hundred 15-19 year olds living on the street found that 40 percent of them were HIV positive. In Ukraine, one study found a variety of HIV risk behaviours like sharing needles and unprotected and forced sex were prevalent among 10-19 year old street children, while a multicity study found an HIV prevalence of 18 % among street youth (aged 15-24).  Police harassment and the general attitude of society that sees street children as ‘outcasts’ and ‘criminals’ means that that they are difficult to reach with health and social services.
SEXUAL TRANSMISSION
Sexual transmission does not account for a high proportion of child infections but in some countries children are sexually active at an early age. This is potentially conducive to the sexual spread of HIV among children, especially in areas where condom use is low and HIV prevalence is high. In sub-Saharan Africa 16% of young females (aged 15-19) and 12% of young males reported having sex before they were 15 in 2007. In Lesotho, these figures are 16% and 30%, respectively; in Kenya, 15% and 31%.  The lower the age of first sex, the higher the lifetime risk of HIV infection. This is because early sexual debut is often associated with older lifetime partners, higher rates of coerced sex and lower rates of condom usage.
Children are also at risk of becoming infected with HIV through sexual abuse and rape. In some parts of Africa, the myth that HIV can be cured through sex with a virgin has led to rapes, sometimes of very young children by infected men – although whether or not this is a significant factor in child sexual abuse in the region is disputed. In some cases, young children are trafficked into sex work, which can put them at a very high risk of becoming infected with HIV.
PREVENTION OF MOTHER-TO-CHILD TRANSMISSION (PMTCT)
To avoid mother-to-child transmission of HIV, antiretroviral drugs are given to the mother before birth and during labour, to the baby following birth and safer infant feeding is also promoted. This approach can almost eliminate the risk of transmission from mother-to-child.  Unfortunately, prevention of mother-to -child transmission (PMTCT) services fail to reach most women in resource-poor countries. In 2009 for example, only half of HIV-infected pregnant women in low- and middle-income countries received drugs to protect their babies from infection .
BLOOD SAFETY
In order to eliminate the risk of a child being infected with HIV in medical settings, either through contaminated needles or blood transfusions, a number of steps can be taken. These include adopting safer injecting practices for injections and screening all donated blood for blood borne viruses.
HIV/AIDS AWARENESS PROGRAM
HIV/AIDS awareness program is an important way of reaching young people with knowledge on sexual health and drug abuse.  There are many ways to reach young people: including through school, the media, and peer outreach. Whatever the medium, HIV/AIDS education should not only address the biological facts of HIV and STI transmission and provide information on how to prevent transmission, but it should also take into account the realities of young people’s lives – such as peer pressure or gender inequality .
HIV TESTING FOR CHILDREN
It is important that HIV infected children are diagnosed as quickly as possible, so they can be provided with appropriate medication and care. However, testing children for HIV can be complicated, especially for those recently born to HIV-positive mothers. Antibody tests, which are used to diagnose HIV in adults, are ineffective in children below the age of 18 months. Instead, children below this age are usually diagnosed through polymerase chain reaction (PCR) testing and other specialist techniques. This is referred to as early infant diagnosis and is important because mortality is very high amongst HIV infected infants who go untreated. However, according to recent data, only an estimated 6% of children born to HIV positive mothers received an HIV test within the first two months of life.
A multi country study in Africa showed that without treatment, half of HIV infected children die by 2 years of age. Even when children do survive into adolescence without treatment, they are likely to be stunted, severely underweight or suffering from opportunistic infections. However, the methods for testing children early require expensive laboratory equipment and specially trained staff which are generally unobtainable in the resource-poor areas where they are needed the most.
The use of dried blood spot testing can be more practical in resource poor settings. This method allows small samples of blood to be collected on paper, and sent away to a laboratory where PCR (or similar testing) is available. Unlike testing methods that use liquid samples, dried blood spots can be stored for a long time and easily transported, so even if the nearest laboratory is some distance away, it may still be possible to use PCR technology on a sample of a child’s blood. However, dried blood spot testing can be expensive and it can take a long time for test results to return.
Ideally children need to be diagnosed at a health facility where they can be linked immediately to treatment if needed. This is called ‘point of care’ diagnosis and should include testing that requires minimal infrastructure and medical training and provides quick results. Such tests are referred to as ‘rapid HIV tests’ but as they are not suitable for children under 18 months, the majority of children who need to be tested sooner than this remain undiagnosed and do not access treatment.
Where health facilities can diagnose infants early through PCR testing they should immediately be linked to care and treatment services. However, an increase in access to testing is not always matched with access to treatment. One study in Cameroon found that only a third of infants who had been diagnosed early were alive and receiving treatment after one and a half years and another multi country study found that half of all infants who had tested HIV positive were not receiving treatment.
HIV TREATMENT FOR CHILDREN
HIV treatment for children slows the progress of HIV infection and allows infected children to live much longer, healthier lives. Yet, many of the children who could be benefiting from this therapy in low and middle-income countries (an estimated 72%) are not receiving it.
Children ideally need to be given drugs in the form of syrups or powders, due to difficulties in swallowing. However, drug treatments involving syrups for children are generally more expensive. As a result, carers are often forced to break adult tablets into smaller doses, running the risk that children are given too little or too much of a drug. Studies suggest that breaking down adult tablets into smaller doses can work effectively although this should only really be seen as a last resort.
Although the cost of first line therapy for children has reduced dramatically due to the availability of generic drugs ($50 a year on average in 2009 compared to about $20,000 a few years before), when a child develops drug resistance and needs to begin a second course of drugs, treatment becomes far more expensive. More drugs suitable for children are qualified by the WHO every year, but without access to cheap generic versions of them the majority of HIV infected children will not benefit.
“More drugs suitable for children are qualified by the WHO every year, but without access to cheap generic versions of them the majority of HIV infected children will not benefit.”
Another major problem for children living with HIV is childhood illnesses, such as mumps and chickenpox. These illnesses can affect all children, but since children living with HIV have such weakened immune systems they may find that these illnesses are more frequent, last longer, and do not respond as well to treatment. Opportunistic infections, such as tuberculosis and PCP (a form of pneumonia), are also a serious risk to the health of children living with HIV.
Opportunistic infections can be prevented using drugs such as cotrimoxazole: a cheap antibiotic that has been proven to significantly reduce the rate of illness and death among HIV-positive children. Countless lives could be saved if cotrimoxazole were made more widely available, but at the moment it is estimated that only 8 percent of the four million children who could be benefiting from the drug are receiving it.
One of the greatest challenges when it comes to treating children with HIV is loss to follow up. This is when a patient tests HIV positive but does not return to a health facility to receive treatment. According to UNAIDS and UNICEF “the number of women and children lost to follow-up is tragically high”. Some of the reasons children are lost to follow up include “clinical organization and data flow of results, lack of caregiver contact information, stigma and counselling challenges, the burden on patients to return for results, and weak follow-up within clinics.”
THE NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS (NCPCR)
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007 under the Commission for Protection of Child Rights Act, 2005, an Act of Parliament (December 2005). Presently Dr Shantha Sinha, Chairperson of the newly constituted National Commission for Protection of Child Rights (NCPCR).  The Commission’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 also the UN Convention on the Rights of the Child. The Child is defined as a person in the 0 to 18 years age group.
The Commission visualises a rights-based perspective flowing into National Policies and Programmes, along with nuanced responses at the State, District and Block levels, taking care of specificities and strengths of each region. In order to touch every child, it seeks a deeper penetration to communities and households and expects that the ground experiences inform the support the field receives from all the authorities at the higher level. Thus the Commission sees an indispensable role for the State, sound institution-building processes, respect for decentralization at the level of the local bodies at the community level and larger societal concern for children and their well-being.
MANDATE OF THE NCPCR
NCPCR is an Act of the Parliament set up to protect, promote and defend child rights in the country. It performs various functions in order to maintain its mandate. However, one the major of function which has to be mention is “Examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disasters, domestic violence, HIV/ AIDS, trafficking, maltreatment, torture and exploitation, pornography, and prostitution and recommend appropriate remedial measures”
ACCESS TO CARE AND SUPPORT
People living with HIV have a wide range of care and support needs. These include psychosocial support as well as treatment for ‘opportunistic infections’ (the illnesses to which they become vulnerable as the immune system is destroyed by the virus). When their HIV infection reaches the stage that it becomes life-threatening, they require treatment with antiretroviral drugs.
However, the vast majority of people around the world do not yet have access to such services. Reaching out to them is a global priority.
AIDS-related care and support are key elements in the response to the epidemic: not only do they directly benefit people living with HIV, but they help also to reduce the social and economic impact of the epidemic and to boost HIV prevention .
CONCLUSION AND RECOMMENDATION
The global response to AIDS must be significantly reoriented to address the unmet needs of millions of children and their families in the worst affected countries, according to a new report by the independent Joint Learning Initiative on Children and HIV/AIDS (JLICA) .
The effects of the HIV/AIDS epidemic on children are manifold: hundreds of thousands of children every year are infected with HIV, most are left undiagnosed, do not access treatment and die very young. Those who are not infected may live in families and communities where AIDS reduces the productivity of their households and aggravates poverty. Only a combination of factors can improve the situation. These include greater access to the drugs that can prevent mother to child transmission, appropriate testing, efficient linkages to care and treatment, and support for the families and communities that provide the material, social, and emotional foundation for a child’s development.
Therefore, it is highly recommended to focus on children’s needs, not their orphan or HIV status when designing and implementing policies and programmes. Health and social services, such as expanded access to HIV testing and treatment, should reach out to families as a whole. An effective response to AIDS requires the delivery of integrated, family-centred services in health, education and social welfare that are well-resourced and linked to communities.
Economic security can help families invest in children’s health and education, increase their use of available services, and pay for essentials such as food, medicine and transport to health facilities. Income transfer efforts, which place funds directly in the hands of families that need them, have demonstrated impressive results in improving child and family well-being. Urgent action is needed to address the social conditions and norms that render women and adolescent girls highly vulnerable to HIV infection.
From the above finding it can be concluded that State bears the most important responsibility in protecting, promoting in realising the rights of this children so they grow with dignity and full fill their aspiration.