child

EPW JAN 2014

Children's Commission

Human rights institutions are established by governments the world over as mechanisms to protect and promote rights recognised under domestic laws and international conventions. They serve as independent oversight bodiesthat can take cognisance of and initiate action against all forms of human rights violations. They can monitor the actions and inactions of state and non-state actors, ensure that public administration and duty-bearers are held accountable and take steps to safeguard the rights of individuals and groups.

These institutions are warranted as laws on human rights do not necessarily guarantee their respect and protection on ground. Moreover, all forms of violations may not be identified, visible, or brought to the attention of authorities. The authorities may themselves be responsible for serious violations and hence there is a need to have an independent body that can challenge these excesses. In the case of children, rights-holders may not always have the capacities, resources or opportunities to effectively represent their own causes. Furthermore, existing system of addressing violations (such as the higher courts) may be inadequate, overburdened or inaccessible to the victims.

States have been largely prompted to create these institutions under pressures of different kinds. The National Human Rights Commission (NHRC) was established to ward off international scrutiny¹ of excessive measures adopted by the government to deal with insurgency in Kashmir, Punjab and Assam. The pressure to monitor the situation eventually led to the passing of the Protection of Human Rights Act (PHR Act), 1993 under which the NHRC and State Human Rights Commissions (SHRCs) were established (Sripati 2000: 5). The Commissions for Protection of Child Rights (CPCR) Act, 2005 was enacted to give effect to India’s obligations under the United Nations Convention on the Rights of the Child (UNCRC), 1989.

Given that these bodies were established as a response to pressures, it suggests that they are primarily set up for tokenistic reasons. Governmental response has bordered on indifference, scepticism, to outright interference and sabotaging and it has effectively thwarted the evolution of these bodies into powerful watchdogs. For instance, in 2010,
the Karnataka government sanctioned only 21% of the staff requested by the Karnataka SHRC (Makhija and Raha 2011: 37) causing Justice S R Nayak, the then chairperson, to openly criticise the government about its apathy (Anon 2010). While governments establish these institutions, they systematically ensure that these bodies remain weak through various tools available at their disposal. Using the example of CPCR, we discuss how state governments have not been able to establish strong, competent and effective bodies, despite statutory mandate or judicial directions.

Inordinate Delay

Under the CPCR Act, the state governments may establish State Commission for Protection of Child Rights (SCPCR) at the state level.² SCPCRs’ mandate entails examining the effectiveness of safeguards for children, inquiring into complaints of violation of child rights, inspecting custodial institutions for children, examining factors that affect the enjoyment of rights by children, recommending remedial measures, etc. Under the Right of Children to Free and Compulsory Education Act, 2009, SCPCRs must review safeguards under the Act, inquire into complaints of violations of the right to education, serve as a grievance redressal authority and also hear appeals against the orders of the local authority. The commissions have also been tasked with the responsibility of monitoring the implementation of the Protection of Children from Sexual Offences Act, 2012.

Despite these wide-ranging functions, state governments have delayed establishing these bodies. Since 2011, several states have been pushed to notify SCPCRs because of judicial directions.³ Thus far, 22 states have issued notifications to constitute SCPCRs. Our research shows that some SCPCRs exist only on paper as a notification has been issued, in some states only the state rules under the CPCR Act have been notified but no one is appointed or only a chairperson is appointed or only a few members are appointed to work on a part-time basis. In most SCPCRs, chairperson, secretary and members do not work on a full-time basis. Some chairpersons and secretaries are holding additional charge with SCPCRs, while serving in state bureaucracy. Some are working with non-governmental organisations or are engaged in active politics although undertaking a paid employment during tenure is one of the grounds for removal from office.⁴ Some SCPCRs do not function because of poor infrastructure, lack of staff, and the reluctance of the government in appointing the chairperson, secretary and members.⁵

Civil society organisations and the National Commission for Protection of Child Rights (NCPCR) have approached high courts (HCs) to seek directions to the state governments to establish SCPCRs. In 2012, the NCPCR approached the Punjab and Haryana HC seeking a writ of mandamus directing the states of Punjab, Haryana and the union territory (UT) of Chandigarh to establish fully functional SCPCRs.⁶ Expressing disdain, the HC observed:

Though the Act was passed in the year 2005 and going by this, in letter and spirit, such commissions were to be constituted immediately, it is a matter of regret that for waking up the state governments from slumbers, such PIL (public interest litigation) are required to be filed to remind them of their statutory duties.⁷

In January 2013, in Re: Exploi of Chiln. Inj Orph in State of Tamil Nadu vs Union of India,⁸ the NCPCR submitted a list of 19 states/union territories that had not yet constituted a SCPCR and urged that a direction be passed to all states. In what appears to be a first case of its kind, in its order dated 7 February 2013, the Supreme Court gave all 19 states/union territories a deadline of three months to ensure that the SCPCR is made functional.⁹

Deficient Rules

In order for the SCPCRs to function effectively, the state government must frame rules to give effect to the provisions of the Act before the constitution of the commission. The rules must necessarily be in consonance with the Act. Of the 22 states and one UT that have established a SCPCR, 13 have notified rules under the CPCR Act. However, the rules were notified after the constitution of the commission in five states – Bihar, Karnataka, Rajasthan, Sikkim and Tamil Nadu.

States have not strictly complied with the parent statute or even adapted the central rules. The departures in some rules seriously threaten the independence of the SCPCR and undermine the provisions of the CPCR Act. For instance, even though the Act vests the commission with all financial powers, in Madhya Pradesh and Tamil Nadu it is the secretary, a state employee, who has financial powers and not the chairperson.¹⁰

The Act envisages the payment of salaries and allowances to the chairperson and members and lists engaging in paid employment outside the duties of office as a ground for removal. Several states have prescribed measly honorariums, salaries, or sitting fees that not only render it impossible for the office-bearers to work full-time, but also undermine the gravitas of a statutory body. As per the NCPCR rules, the chairperson and members are entitled to salaries and allowances equivalent to that of the cabinet secretary, Government of India and secretary, Government of India, respectively. The NCPCR and SCPCRs are vested with the same functions and powers and thus there must be parity in pay as well. Bihar is the only state which entitles the chairperson and members to salaries and allowances equivalent to that of the chief secretary and secretary, state government, respectively. The chairperson and members of the Maharashtra SCPCR receive honorariums of Rs 5,000 and Rs 3,000, respectively. In Tamil Nadu, members are entitled to a sitting fee of Rs 1,000. Until recently, the chairperson of the Karnataka SCPCR was entitled to a monthly remuneration of Rs 3,500 and members a sitting fee of Rs 500 per day. While hearing a challenge on the constitutionality of the Karnataka rules, in June 2012, the Karnataka HC noted that

[a] perusal of the Central Rules and the Bihar Rules make it evident that the equivalence should be to that of the cabinet secretary or the chief secretary. We cannot accept the chairperson to fulfil the duties or expectation of the office if there are persons within the commission who are drawing higher salaries.¹¹

The court advised the government to “rethink and redraft” the rules. In a clear display of obduracy, government did not abide by the recommendations of the court and enhanced the salary of the chairperson to Rs 75,000 and the sitting fee of members to Rs 1,500.¹²

Non-Transparent Appointments

The NCPCR and SCPCRs should comprise a chairperson and six members. The Act does not list any specific qualifications for the chairperson, but states that she or he should be “a person of eminence” and should have done “outstanding work for promoting the welfare of children”. Further, members should be drawn from “amongst persons of eminence, ability, integrity, standing and experience in” the fields of education; child health, care, welfare or child development, juvenile justice or care of neglected or marginalised children or children with disabilities; elimination of child labour or children in distress; child psychology or sociology; and laws relating to children”.

Our research indicates that the selections and appointments of chairperson and members of the commissions is a contentious matter. State governments have failed to prescribe a transparent, competitive and robust selection procedure for the commissions thereby allowing it to be a political decision. Having unqualified persons who have no relevant experience reduces the credibility of this watchdog. Here again, the judiciary has directed the governments in the right direction. The Punjab and Haryana HC observed that in order to perform the functions of SCPCRs, “the chairperson needs to have legal expertise, judicial wisdom and experience in the higher judicial echelons” and directed that “the Chairperson should be person who has been Judge of the High Court”.¹³

In 2010, in Association for Development vs Union of India,¹⁴ a writ petition challenging the appointments of two members of the NCPCR, the Delhi HC provided guidelines for future appointments. It recommended a broad-based selection committee which could include independent experts in the field, the chairperson of the Union Public Service Commission, and/or the leader of the opposition. Gopal Subramanium, the solicitor general at the time had assured the court that its recommendations would be borne in mind and that “at least one Member of the Selection Committee shall be an independent expert of eminence in the field of child rights or welfare”. Further, upon completion of the selection process and at least 30 days before the notification, the details of the members of the selection committee and the selection candidates would be put up on the website of the ministry. However, this procedure was not followed in the recent appointment of its chairperson, who is a former chief secretary of Rajasthan.

In August 2012, a PIL was filed before the Orissa HC drawing attention to the failure of the state government in appointing members to the SCPCR.¹⁵ In June 2013, the appointment of Saraswathi Rangasamy as the chairperson of the Tamil Nadu SCPCR was challenged before the Madras HC on the ground that she did not meet the eligibility criteria prescribed under the Act.¹⁶ These matters are pending in court.

Concluding Observations

The foregoing discussion illustrates the lethargy and apathy of governments towards bodies they have created for protection and monitoring of child rights. It raises two fundamental questions with regard to the role of state vis-à-vis human rights institutions for children. First, why does the state constitute these bodies if there is lack of commitment to ensure their effective functioning as per the Act? Second, how significant are the recent strides made in legislation on child rights if the institutions meant to implement and monitor these new statutes are not put in place. Creating new legislation perhaps pays more political dividends than investing in strong monitoring bodies that can actually have political fallouts. What needs to be now seen is can the judiciary push the executive to also invest in the latter?

Doctors to be sensitised on reporting child abuse cases

IMA joins hands with UNICEF in the initiative to safeguard children

Taking up the responsibility of identifying and reporting cases of child abuse, the country’s largest non-government organisation of allopathic doctors, the Indian Medical Association (IMA), is joining hands with United Nations International Children’s Fund (UNICEF) to sensitise doctors on the issue.

IMA official Dr. Narendra Saini said this will be the IMA’s first nation-wide initiative to protect and safeguard children. The programmes planned as part of the initiative include sessions on how to identify cases of child abuse, workshops and an information booklet.

“Doctors across the country are seeing an alarming rise in the number of child abuse cases. Most of the times they are not sure of the correct questions to ask in the case, how to document and collect evidence, reassure the child/parents and then the procedure to inform the correct authorities to take action in the matter. Our programme hopes to educate doctors in this regard. The aim is to identify and report abuse as early as possible to ensure that the child remains safe,” said Dr. Saini.

Saying that children are subjected to abuse even within institutional set-ups, including schools, a senior official of the Delhi Commission for Protection of Child Rights said: “Despite the ban on corporal punishment we still get complaints of children being subjected to this kind of abuse that hits them physically, mentally and emotionally. What is worse is that it is being done by educated teachers and in some cases accepted even by parents. Physical abuse of children is also being reported from Delhi schools, which is a cause for worry.”

Welcoming this latest initiative by doctors, which is scheduled to take-off soon, he said: “Every one in society has the responsibility to ensure care and protection of children. It is a step in the right direction.”