UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
Article 2 (Non–discrimination): The Convention applies to all children, whatever their race, religion or abilities; whatever they think or say, whatever type of family they come from. It doesn’t matter where children live, what language they speak, what their parents do, whether they are boys or girls, what their culture is, whether they have a disability or whether they are rich or poor. No child should be treated unfairly on any basis
1.1 Introduction to Child Rights
Children have a mind of their own, so they can dissent. Adults should be ready to let children make up their mind on things that concern them. After all children are not puppets in the hands of adults. Children need freedom. Also, for them to grow and develop physically, socially, emotionally and cognitively, opportunities need to be made available to them. The environment has to be nurturing and stimulating. Children are young, dependent and need care for their well-being and development. The family and society has to provide for food, shelter, clothing, health needs and education. Children should be safeguarded against abuse, so need protection. All children have a claim for those things in a society that would help in their care and provide protection. Children can demand these things from their parents and elders as their ‘right’. Most children are not aware of their rights. Hence, it is the responsibility of adults to make them aware of their rights. All children have the same rights. It does not matter whether the child is rich or poor, has parents or is an orphan, is strong or weak, sick or healthy, or lives in any part of the world. A Child is a Child.
Child rights are those rights that a person possesses by virtue of being a child. Since children are small, immature, inexperienced and dependent on adults for taking care of them, this makes them vulnerable and easy target for exploitation, hence there is a need to protect them. This makes for a case where conditions are made conducive to protect them. Child rights bring within the ambit every scheme which a child requires, not only to protect their interest, but also to provide them with ample opportunity to grow and develop to the fullest. There are many schemes, policies, legislations and programmes which aim to care and provide protection to children. Yet children are malnourished, exploited, marginalised, neglected, abused, trafficked and are deprived of their basic right to family care, protection, play, shelter, food, health and education. Hence, there is a need to be an advocate of child rights and to create awareness amongst all about concept, salience and ways of achieving child rights.
What is a Right? A ‘right’ is an agreement or contract established between the person who holds a right and a person or an organisation which has the capability and the duty or obligation to fulfil the rights of the person. Rights are entitlements, imply obligations and goals and concerned with social justice, non-discrimination and empowerment. Rights can be called guarantees which an individual can evoke. They are on high priority and compliance with them is mandatory. Human rights aim to secure the basic conditions for leading a minimally good life. Child rights are those special set of privileges which apply to all humans who are younger than 18 years of age. The child rights approach presupposes a change in perspective. Children are no longer seen as needy, but rather as right holders. Also, children are viewed as separate entities. In the child rights approach, child rights are both a goal as well as an instrument for the development of children. This approach does not view situations of poverty simply from the viewpoint of human needs and development practices, but is interpreted as an outcome of unjust practices.
The journey towards achieving child rights is a journey to make sure that children:
are not discriminated against,
have their best interests protected,
have the things they need to survive and develop,
have a say in decisions that affect their lives.
The concept of child rights has widened and the international will to reinforce and enforce the rights of children has grown over the years with mounting evidence of hardship and abuse suffered by children. Here are some established facts: abandoned by families, some 100 million children submit only by back-bearing work, or turn to petty crime, begging or prostitution. Over 50 million children work under unsafe or unhealthy conditions. Over 120 million children are deprived of schooling in the age group of 6–11 years. Some 32.5 million die every year of disease that could be prevented or cured. Millions, including many in the rich societies are maltreated or neglected, or sexually exploited or become victims of drug abuse (Mythili and Bhagyathara 2007). This clearly underscores the urgent need to save and protect our children using rights as a legal instrument against their exploitation and pitiable plight.
Understanding Child’s Rights from the Child’s Eyes
All the time I keep hearing instructions. Do this. Do that. Don’t do this. Don’t do that. Eat This. Play. Sleep. Study. Don’t touch this and that. Don’t argue. Obey. Serve. Listen !!
You adults always want to decide what we should be doing. But do you know, just as you grown up people have rights, we children too have rights.
One day, nations in the world got together in 1989. They were worried that children were not doing well. People who cared for children had been demanding that children be given their rights. The think tanks of nations sat down and thought; children’s rights? What are they?
First they put their minds together. Then they thought let us ask children themselves what they thought that they must have as a definite thing, i.e. a right, a privilege ….…they asked many children and this is what children said….
I have a right to be me
I have a right to basic needs of nourishment, housing and clothes
I have a right to be taken to a doctor when sick and health care
I have a right to a loving family
I have a right to education
I have a right to play
I have a right to be involved in family discussions and to express myself
I have a right to be protected against neglect, abuse and exploitation
I have a right to live
I have a right to be wrong, so please don’t punish me so hard
I have a right to special care if I have special needs
I have a right to my own culture, religion and language
I have a right to leisure, rest and fun
I have a right to Childhood.
The United Nations wrote down these rights. These are called Convention on the Rights of the Child. Many countries agreed to adopt these rights. So did India commit itself to see that children in India too got these rights.
1.2 The Notion of Human Rights
The doctrine of human rights rests on the belief of moral universalism, a moral universal community of human beings. Moral universalism does not depend on social acceptance or norms. It is accepted universally. It is a natural order. It is based on natural justice. Aristotle writes, ‘the natural is that which has the same validity everywhere and does not depend on acceptance’ (Nicomachean Ethics 189) (Human Rights, In Internet Encyclopedia of Philosophy). Here, Aristotle unambiguously expounds an argument in support of the existence of a natural moral order. The basis of the doctrine of natural law is the belief in the existence of a natural code based upon the identification of certain fundamental and objectively discernible human goods. Our enjoyment of these goods is to be secured by our possession of equally fundamental and objectively verifiable natural laws. Natural laws are valid irrespective of their having got the approval of the government or not. John Locke took the stand of Aristotle ahead and said that these natural laws came from God and it was duty of each individual to protect themselves and these rights were at the core of protecting human life and helped in self-preservation. Life was a gift from God and human rights helped in the preservation of life. Our duty of self-preservation entails the necessary rights to life, liberty and property.
The eighteenth century German philosopher Immanuel Kant bestowed upon contemporary human rights theory the ideals of equality and moral autonomy of human beings, who determine the moral principles for securing conditions for equality and autonomy (Human Rights, In Internet Encyclopedia of Philosophy). These rights emanate from human reason rather than the supernatural. Ideals such as natural rights, moral autonomy, dignity of human beings and equality became the basis for questioning oppressive regimes and a reason for replacing them with political authorities who understood these emancipatory ideas.
Though the concept of human rights had long been in place, the world sat down to formalise the UN Declaration of Human Rights only in 1948. It was an outcome of the worst human holocausts, the worst human rights violations, an outcome of the world wars. The UNHR consists of a preamble and 30 articles. The UNHR goes beyond the concept of natural rights and makes states responsible for upholding rights. It emphasises the role of family and community in the realisation of these rights. Further, violation of human rights are not merely seen as a state issue, but are a matter of international concern.
Tracing the evolution of Human Rights, many important landmarks may be mentioned such as the Magna Carta (1215), which put forward the idea that no one was above law. Yet by no means were all people considered equal. The American Declaration of Independence was important as a group of people decided to take their destiny in their own hands. Yet, there was slavery and women had an inferior position. The world wars saw human rights violations on a large scale. Hard lessons were learnt including the value of human life and the dignity of every human being. The United Nations was formed in the aftermath of the world wars. One of the first tasks of the UN was to prepare the groundwork for human rights. The Universal Declaration on Human Rights was drafted soon after. UNHR was passed in 1948 and is a broad declaration of the ideals that the world aspires for (Jain 2005).
1.3 Philosophical Analysis of the Concept of Human Rights
Human rights are rights that attach to human beings as moral guarantees for leading a minimally good life. The very fact that you are human, gives you these rights. In conceptual terms, human rights are a derivative of what is considered ‘right’. Let us try understanding the concept of human rights.
Human Rights as Moral Versus Legal Rights
Legal rights are those that can be traced in the legal code of conduct of the society or the nation. They are passed by some constitutional body like the legislature or the parliament. These originate within the legal system, whereas moral rights are not rights in the strict sense but are more of moral claims. Moral rights have existed prior to legal rights. Legal rights would change from time to time, but moral rights are more universal. For example, most political movements may not be supported by the laws of that state, but are moral claims of people who are trying to question what they perceive as immoral regimes. India’s fight for freedom from British rule was a moral claim against discrimination on grounds of colour and right to political participation in our own country. Human rights cannot merely be reduced to legal rights. Nor are they just moral rights. Human rights are best thought of as both moral and legal rights. The legitimacy claims of human rights are tied to moral rights, but the practical efficacy comes when they become legal rights. For example, persons with disability have a moral right to equal participation, development opportunities and education. But if this moral right becomes a legal act and instrument, implementation of certain steps for these rights to reach the persons with disability becomes easier and possible.
Human Rights as Claim Rights and Liberty Rights
W.N. Hohfeld (1919) was an American jurist. Hohfeld’s ambition was to provide a conceptual understanding for our use of right, duty, etc., in practice, thus facilitating a better understanding of the nature of our rights. He identified four categories of rights-claim rights, liberty rights, power rights and immunity rights, which have been clubbed to claim and liberty rights (Human Rights. In Internet Encyclopedia of Philosophy). Claim right consists of being owed a duty. It is a claim against another person who has a duty to fulfil the claim of the right holder. Example, Right to free and compulsory elementary Education is a claim right for every child in India between 6 and 14 years, which the government has to provide as a duty to the right holder, whereas liberty rights are not be fulfilled by anyone. Liberty right makes us free to do as one pleases. Example, it is my right to go for a vacation to any part of the world.
The Will Theory and Interest Theory
Will theory attempts to establish the validity of human rights on single human attribute-freedom, which is the core of any account of rights. Validity of human rights is tied to personal autonomy. Will theorists make the holder like a sovereign, a monarch. Rights give the person autonomy. Rights give the person power over another’s duty. Will theory gives the holder the power to determine what others may or may not do, and so exercise control over certain domains of affairs. So, as per this theory, there can be no such thing over which its holder has no power. The holder of the right has power over the duty bearer. The theory considers those who are incapable of exercising their rights (severely disabled or infirm or very young children) as incapable of having any rights as they are not in a position to exercise their rights.
As per the Interest theory, the basic purpose of human rights is to protect and promote certain essential human interests. They are justifiable as they have an instrumental value in securing conditions of human well-being or for securing basic human good. Some of the rights are life, knowledge, recreation, to practice a religion to name some. Rights allow its holders to improve their life conditions. This theory accepts that not only are the rights unwaivable, but they are for everyone, including for ones who are not so capable. Interest theory coincides with the general view of children and their interests that deserve protection. It also says that it is the adults who should protect their interest.
The philosophical debate related to the Will theory and the Interest theory is specially relevant for Child Rights. The Will theory gives the holder a right, a power, which makes the holder sovereign and powerful. To have a right is to have the power to enforce or waive the duty of which the right is correlative. Do children have the capacity to exercise rights? The Will theory does not answer this question. The Interest theory sees a right as a protector of interest of the holder of the right. So, interest theory coincides with the general view that children’s interests need to be protected. It becomes the duty of the adults to protect the interests. So, children have the interest to be protected from abuse, violence, hunger, malnutrition and disease, adults have a duty to protect them.
Comes from a tradition which considers that human beings have human rights because of their status of being humans. It rests on the belief that all men are created equal. This is also the reasoning found in the thoughts of Aristotle and Locke and in the American and French revolutions.
Believe that rights have been ascribed as they help in providing and promoting overall human welfare. Human rights become the instrument of distributing facilities and privileges across the group.
The major criticism of human rights comes from the concept of moral relativism. The conceptualisation of what is moral or not is decided by the society in which the person lives. There can be no absolute moral codes. Morality is a social and historical phenomenon. Moral beliefs vary widely in the world today. To impose one as being superior to the other would be moral imperialism. Example, child’s right to privacy for Indian parents would be alien. Also, for highly marginalised societies, human rights would be so hard to attain. There is increasing awareness to tailor make human rights which are in tune to say, the collective rights of minorities. While the basic philosophy behind human rights is their universal moral doctrine valid for all people everywhere, yet now attempts are being made to adequately address the unique conditions of culturally diverse societies. Example, arranged marriage is a norm in Indian societies. There is great degree of sanction on young people who dare to marry outside of castes and clans by the moral bearers of respective societies (say Khaps, the locally appointed courts, who are known to even kill the youngsters in the name of preserving the honour of the clan). This is in conflict with the right to liberty and freedom to choose your own life partner.
Norway Authorities Take Away Indian Kids for Not Using Spoons and Sharing Bed with Parents
Oslo, Jan 18 (TruthDive): An Indian couple, Anurup and Sagarika Bhattacharya from Kolkata living in Norway is facing the worst part of their lives after their children—a 3 year-old son and 1-year-old daughter—were taken away from them by Norway’s child protective services and placed in foster care 8 months ago.
It comes as a shocker to the couple when they were told that their children were not brought up properly because they fed their children with hands and slept with their parents in the same bed.
“My son was sleeping with my husband. They said he should sleep separately from your son,” said Mrs. Bhattacharya.
“Feeding a child with the hand is normal in Indian tradition and when the mother is feeding with a spoon there could be phases when she was overfeeding the child. They said it was force-feeding. These are basically cultural differences,” said Mr. Bhattacharya.
The matter was reported to Indian authorities and recently the officials of the Indian Embassy in Oslo held talks with the authorities of Norway’s Child Protective Service. The Indian officials even met the children. Their innocent parents however were not even allowed to have a glimpse of their beloved children.
Norway’s Child Protective Service is a powerful body charged with protecting the rights of children living in difficult family situations. But there are many reports of excesses.
“There has been a report in UN in 2005 which criticized Norway for taking too many children in public care. The number was 12,500 children and Norway is a small country,” said Svein Kjetil Lode Svendsen, lawyer
The Bhattacharyas’ visas expire in March. If they don’t get their children by then, the couple will be forced to stay on (Ramraj 2012).
The case cited above clearly shows a conflict between Indian child rearing practices, and the law of the land of the country in which the family was residing. Ignorance about Indian culture and lack of understanding about the diversity in parent–child relationship made the Norwegian authorities view the parents as cruel and in conflict with law. Child rights here is in conflict with cultural norms. To impose one way of bringing up children as being superior vis-à-vis another is certainly cultural imperialism.
1.4 Scope of Human Rights Duties
Human rights are possessed by everyone. An obvious deduction is that everyone has a duty to protect and promote everyone’s rights. National and international institutions bear the responsibility of securing human rights. The realisation of human rights requires establishing conditions for all human beings to lead minimally good lives and thus should not be confused as an attempt to create a morally perfect society. While the object of human rights is modest, the force is ultimate. Ronald Dworkin coined a term ‘rights as trumps’, to use the game of cards as a simile to denote absolute power to ‘rights’. Dworkin argues, considerations of rights claims must trump and take priority over alternative considerations when formulating public policies and when allocating public resources. It prioritises its realisation over alternative political and social considerations. Thus, for example, a minority’s possession of rights against discriminatory treatment should trump any and all considerations of the possible benefits that the majority would derive from discriminating against minority group. Similarly, an individual’s right to an adequate diet, or safe shelter, should trump the other individual’s desire to wear designer clothes, or eat at expensive restaurants. For Dworkin, rights as trumps express the fundamental ideals of equality for all humans, a premise on which the concept and philosophy of human rights is based. Fully realising the aspirations of human rights may not require the provisions of ‘state of the art’ resources, but this should not detract from the force of human rights as taking priority over alternative social and political considerations.