Children in Especially Difficult Circumstances: Right to Protection and Participation

Homelessness is not a condition unknown to children in India. Migration to cities in search of livelihood and dreams of a better life is one of the major causes of homelessness, which is more of an urban phenomenon. Globalisation has also destabilised rural livelihoods. Pressures of infrastructure development like construction of high rise buildings, or SEZs (special economic zones) or even dams and highways have taken away the lands of farmers, and shanties and hutments of urban slum dwellers. Situations like natural disasters and conflicts render many homeless or force them to live in unsafe housing conditions. Living on the streets or in urban slum dwellings, lack of basic facilities and unhygienic living conditions become a way of life. The UNCRC has recognised right to adequate housing as a right of every child.

Death of biological parents or abandonment by them leads to a child becoming an orphan. Death could be due to natural reasons like illness or due to accidents or natural calamity. Abandonment could be due to poverty, illness of parents, gender of the child, being an unwed mother, being an unattractive child or even disability in the child. With caring practices moving more towards non-institutional services, adoption of the orphaned or abandoned child provides to the child a family and to the parents a child. Currently, the state of adoption in India is very dismal. There are far more number of children who are orphaned, abandoned and destitute and far few who have been given a home through adoption.

Large-scale migration of families from rural to urban areas has resulted in severe overcrowding, degrading work conditions, homelessness, deprivation of basic services and appalling living conditions in the city. Yet, to return to the village means starvation: to remain in the city means possible survival at least physically.

The major reason for migration to the cities is that the traditional occupations in villages do not provide sufficient income. So, the basic need for survival pushes the migration from rural to urban areas. The influx of people creates housing problems, sanitation and hygiene issues along with creating an alienation and marginalisation of people. The migrants are faceless, mostly both parents are working, leaving children at home with no adult supervision, low self-esteem and no sense of belongingness. This puts the migrant child at great risk of becoming vagrant, taking to loitering on streets or being exposed to anti-social elements. With the National Rural Employment Guarantee Scheme in place, it is hoped that the migration of village dwellers to cities should decrease, as this scheme guarantees the employment in rural areas. Under this scheme, a person has a right to 100 days of employment for each family within 5 km of their residence and within 15 days of applying on a local development project.

The total number of working children in the country has declined from 12.6 million as per the Census 2001 to 4.35 million as per Census 2011 which shows 65 % reduction. The number of child labourers in the country was 11.28 million in 1991. Of 12.59 million in 2001, out of the total child population of 210 million (5–14 years), 5.77 million are classified as ‘main’ workers and 6.88 million as ‘marginal’ workers. The share of workers of the country aged 5–14 years to the total workforce is 3.15 %. The analysis of the 2001 census data shows that there are 6.8 million boys and 5.8 million girls who are child labourers. In addition, it is found that the majority of ‘main’ workers are boys, whereas the majority of ‘marginal’ workers are girls. Main workers are those who have worked for more than 6 months and marginal workers are those who have worked for less than 6 months. Unofficial figures on number of child labour in India vary significantly from the official figures.

Many children are engaged in occupations and processes classified as ‘hazardous labour’, i.e. harmful to the physical, emotional or moral well-being of children. The factors that contribute to child taking to labour force, and hazardous child labour in particular, include parental poverty and illiteracy; social and economic circumstances; lack of awareness; lack of access to basic and meaningful quality education and skills; high rates of adult unemployment and under-employment and cultural values of the family and society.

Working children are exploited economically and often physically, including sexually. They are forced to do heavy work, work overtime, are often deprived of food, schooling, play and rest, and work in unhealthy and unsafe conditions. Crucial early years when the child should be attending school and acquiring skills for a productive and fruitful adult life are lost in the toil of earning, often in most unconducive conditions, to feed their own mouths and those of their family. A child labour also throws out the adult from productive employment.

The primitive practice of bonded child labour is prevalent in India. Recent reports are indicating that India has highest numbers of humans who have been enslaved in the entire world. Bondage is a traditional worker–employer relationship when the parents borrowed money for their needs, which could have been for medicine or food or marriage of daughter, mostly on astronomical interest rates which they could not repay with their meagre earnings. Hence, the child is pledged to lifelong bondage to the lender. As long as the poor in India remain so poor, parent’s indebtedness, poverty and unethical trade practices will make it very difficult to abolish pledging of children into bondage and many such cruel practices which have put to shame India’s image as a nation that cannot take care of her children.

Domestic child workers are commonly seen in cities and metropolis. A systematic exploitation is found, wherein the children are made to work for long hours, with meagre food, meagre wages and at times physical and sexual torture.

Till recently, domestic child labour was not one of the prohibited occupations in the Child Labour (Prohibition and Regulation) Act, 1986. But recently it has been notified by the Ministry of labour, prohibiting employment of children below 14 years as domestic servants or in dhabas, tea stalls and restaurants. This is a much needed amendment but, as a result of this notification, there is a likelihood of a large number of children being laid off, especially in metropolitan cities and big towns. Therefore, there is a need to address the rehabilitation of these children including shelter, education, food, health and other needs and to restore them to their families. It is possible that the families of these children are not in position to take care of them. In such a scenario, an alternative action plan will need to be in place; otherwise, these children are likely to be recycled as child labours.

Street children or children living and working on the streets are a common phenomenon in urban India. Often treated as an eyesore and nuisance, their presence in everyday urban life is difficult to ignore. In spite of the relative high visibility of street children, there is very little information available on their exact numbers. An official figure available from a 1997 report of the DWCD, Ministry of HRD, Government of India stated that 11 million children lived on the street at that time, of which 420,000 lived in the six metropolitan cities of the country. Even these figures are 8–12 years old and almost no effort has been made to update these figures (Ministry of Women and Child Development n.d.(a)).

Street children have to fight for survival day after day. From finding food, looking for a safe place to spend the night to protecting themselves against the violence that constantly threatens them, life is a constant struggle. Victims of discrimination and revulsion stemming from societal apathy, their needs are seldom considered, forget being met. They are the most marginalised of all categories of children in especially difficult circumstances. They live on the fringes of the society, sometimes with their families and sometimes without. They are exposed to harsh life on the streets fighting for their subsistence. Poverty, broken homes, migration, breakdown of social networks, crime and conflict, street children are exposed to all the risks and abuses: substance abuse, physical and moral violence, sexual abuse, health risks like STD/HIV-AIDS, promiscuity and prostitution. Some live in gangs, thus taking up the laws of the group as their own and are in danger of developing risk behaviours in their everyday lives. These children too have the right to adequate housing/shelter, proper nutrition, education, health care and above all protection from all forms of abuse and violence. This is a group of children neglected completely by legislatures and programme planners.

No accurate data is available on the number of beggars especially child beggars, but the magnitude of the problem can be appreciated by some old statistics from different parts of the country: According to the statement made by the Minister of State for Social Justice, Government of Maharashtra in State Assembly, the number of beggars in Mumbai, which was 20,000 in 1963, rose to 3 lakh in 2004. Many children are being exploited by organised mafia-style groups; the more serious being, begging, prostitution and drug trafficking (Ministry of Women and Child Development n.d.(a)). These children are not in need of alms to satisfy hunger and basic survival needs. Rather, most of these children are a part of organised beggar groups. Child beggars are at great risk of engaging in petty crime, subjected to sexual and physical abuse, substance abuse and developing health problems like skin ailments and STDs. These children are victims of abuse of different forms and are living on the edge.

In India, a large number of children are trafficked for various reasons such as labour, begging and sexual exploitation. Many girls who are trafficked become a part of the sex trade and are forced into prostitution. Though most of the trafficking occurs within the country, there is also a significant number of children trafficked from Nepal and Bangladesh. Global trafficking of children and women is considered to be more profitable than arms or drugs smuggling.

It is estimated that there are 4,00,000 child prostitutes in the country. Commercial child prostitution is increasing at the rate of 8–10 % per annum. Child victims of commercial sexual exploitation are deprived of basic necessities and suffer the dangers of unwanted pregnancies, maternal mortality, torture, physical injury, mental trauma and disorders and sexually transmitted diseases (http://​nipccd.​nic.​in/​pub_​coop_​div_​3.​html).

Child abuse can take several forms, i.e. physical, psychological or emotional, sexual abuse and neglect. What would fall in the category of physical abuse varies from culture to culture. In USA and European countries, physical punishment of the child by the parents is considered as a form of physical abuse. It is common knowledge that if you hit or beat your child in the US, the child can call the police. However, in India, our culture is such that physical punishment by parents or other senior members of the family is considered as essential at times to discipline children. It is categorised as abuse only when it leads to bruises or injuries. What is considered abuse in the western countries does not even raise an eyebrow in India and goes virtually un-noticed. The Human Rights Committee of United Nations has stated that the prohibition of degrading treatment or punishment extends to corporal punishment of children. Humiliations, spankings and beatings, slaps in the face, etc. are all considered as forms of physical abuse of children, because they injure the integrity and dignity of a child. Child sexual abuse occurs when an adult or older adolescent abuses a child for sexual activities such as sexual intercourse, indecent exposure of the genitals to a child or viewing child’s genitals forcefully, making physical contact with the child’s genitals, showing porn films to the child or using a child to produce pornography. Effects of child sexual abuse on the victim(s) include guilt and self-blame, nightmares, insomnia, fear of the abuser or things associated with the abuse (including objects, smells, places etc.), lower self-esteem, sexually transmitted diseases, chronic pain, self-injurious or suicidal tendencies, depression, stress disorders, personality disorders or other psychiatric problems etc.

Unfortunately, in most of the child sexual abuse cases, offenders are people on whom the child had placed trust and are mostly known to the child. The offender in many instances could be a family member, neighbours etc. Hence, it is very essential for parents to develop in the child trust in them so that they can comfortably report to the parent such instances of sexual abuse. It is also important to tell the child the difference between ‘good touch’ and ‘bad touch’ so that the child is intolerant to sexual abuse in any form.

The first case of HIV/AIDS was reported in India in Tamil Nadu in 1986. Since then the virus has spread from the high-risk groups to the general population very fast. Today, there are 5.7 million people living with HIV/AIDS in India. Women and children are increasingly becoming vulnerable to HIV/AIDS. The new findings conclude that 38 % of the infected persons in India are women. This indicates the increasing feminisation of HIV/AIDS in India. This alarming trend is being observed closely as more HIV-positive mothers will unknowingly pass the virus on to their children. India has an estimated 220,000 children infected by HIV/AIDS. It is estimated that 55,000–60,000 children are born every year to mothers who are HIV positive. Without treatment, these newborns stand an estimated 30 % chance of becoming infected during the mother’s pregnancy, labour or through breastfeeding after 6 months. There is effective treatment available, but this is not reaching all women and children who need it (http://​www.​unicef.​org/​india/​children_​2358.​htm retrieved on 12 August 2014).

Of all the AIDS infections, 4.36 % are through peri-natal transmission. The HIV prevalence among high-risk groups continues to be nearly 6–8 times greater than that among the general population (National AIDS Control Programme). Child sex workers are a high-risk group. Sexual experimentation among the youth could be another high-risk areas. Using youth-friendly interventions like the education, information, tools and services would help young people make healthy decisions and enable them to adopt protective practices. Working with influential adults such as parents, teachers and traditional and religious leaders would contribute to a more supportive environment that ensures that young people can get the help they need from their communities and remove barriers to accessing services.

The major concern is for millions of children who are becoming orphans due to parents loosing out to AIDS. Such children face gross discrimination by their extended families and have to be often placed in institutions. Sometimes, children live with HIV-positive parents. And sometimes, children are affected by AIDS. These children need long-term care to prolong and improve their quality of life.

The term ‘children in conflict with the law’ refers to anyone under 18 years of age who comes into contact with the justice system as a result of being suspected or accused of committing an offence. Children who come in conflict with law cannot be treated in the same way as an adult offender. The system needs to understand what circumstances lead to the child committing a crime and then help the child to come out of the situation. Being a child, there is always hope that the child with proper guidance and support can be rehabilitated into the main stream rather than becoming a hardened criminal. The entire juvenile justice system rests on this belief and ideology.

It is important to ensure that the child is not being victimised by the system. As reported by the Ministry of Women and Child Development (n.d.(a)), most children in conflict with the law have committed petty crimes or minor offences of which most are not considered criminal when committed by adults. In addition, some children who engage in criminal behaviour have been used or coerced by adults. Too often, prejudice related to social and economic status may bring a child into conflict with the law even when no crime has been committed, or result in harsh treatment by law enforcement officials. In the area of juvenile justice, there is need to reduce incarceration while protecting children from violence, abuse and exploitation. Options that promote rehabilitation that involves families and communities are safer, more appropriate and effective approach than punitive measures.

Justice systems designed for adults often lack the capacity to adequately address these issues and are more likely to harm than improve a child’s chances for reintegration into society. For all these reasons, a just juvenile justice system needs to evolve which would strongly advocate directing children away from judicial proceedings and towards community solutions which promote reconciliation, restitution, restoration, rehabilitation and responsibility through the involvement of the child, family members, victims and communities. It also looks for alternatives to custody or sentencing, like counselling and community service.