“DEINSTITUTIONALIZATION IN THE BEST INTERESTS OF THE CHILD” -CRITICAL ANALYSIS IN THE INDIAN CONTEX
Author: Sai Akanksh Deekonda, V year of B.A.,LL.B.(Hons.) from National Law Institute University, Bhopal
The recent report released on impact of Covid-19 on children, discern that the virus has resulted in substantial reduction in the capacity of the child-care. The main reasons cited are parental death, economic crises, negligence and exploitation. The country has left many children at risk for begging, child labour, child marriage and trafficking. The country has not given its slightest concern to address the interventions and issues of child rights violations. The number of children without proper care, are increasing at the rate of economy, and the measures for parental care, and deinstitutionalization are often not considered, and are taken as least concern by the governments. The present article focuses on the existing child rights in Indian regime, and measures for proper implementation of those rights, to tackle the afore-mentioned issues.
Background of Child Rights in India
India is regarded as one of the largest producers of child in the world, in which 174 children go missing every day. Improper implementation of family planning and institutionalization are the reasons for excessive child population. The child rights in India, primarily are derived from the Constitution,and from other legislations protecting dignity, freedom, childhood and providing rights and action against exploitation, moral, material abandonment. Special legislations are enacted to protect the girl child. National commissions, and NGOs are also established to protect human rights.
Key concerns against violation of Child rights
The primary concerns over the child include the health, education, malnutrition and poverty. Though, they are to be studied independently, they are interdependent on each other. A child, who is poor, couldn’t basically afford for proper nutrition, which effects his health in return. All this ultimately effects his education as well. The children are left out, in homes, as the schools have been under lock-down for 2 years. The position of children in the families not having a smart phone, is more vulnerable.
India and Child Rights Convention
India is one of the earliest countries to ratify ‘Child Rights Convention, 1989’ (CRC) and follow the guidelines of the CRC committee to implemented various polices. It sought help from the different ministries, including State Ministries, International Organizations, Non-Governmental Organizations, Experts and other representatives or academic institutions etc. India has also signed additional optional protocols issued by the international committees. The states and the ministries ensured for the development of the child in the securing and nurturing environment, and in promotion of the deinstitutionalization.
National commission on Child Rights
As suggested by the CRC for the states to establish state commissions for implementing child rights, India has formulated the “National Commission for Protection of Child Rights” in the year 2007 constituting under ‘Commissions for Protection of Child Rights Act of 2005’. There are already different set of Commissions established across all over the states and many of them being operational in working for protection and promotion of child rights.
India’s implementation on CRC convention include core principles of interdependence, indivisibility, inviolability, mutually reinforcing and universal in character. The government also ensures full participation of the child and reflection of their perspectives and priorities. A Toll-free numberis also provided for all child-emergency services.
Actions taken towards Child Care & Deinstitutionalization
The government has launched like ‘National Nutrition Mission’, ‘Mid-day Meal Scheme’and ‘National Health Policy’ for nutrition for health and nutrition The ‘National Educational Policy’and ‘Right of Children to Free and Compulsory Education Act, 2009’ provides for education rights.
The government targeted for inclusive growth and development. However, it has been short-lived, but developed a tremendous momentum in the country for the deinstitutionalization. Thereby government has introduced institutional care under the ‘Juvenile Justice (Care & Protection of children) Act, 2015’ [“JJ Act”] for the destitute and orphans. It is for the special care, assistance and is “in the interests of the child”. The objective of the act is to provide basic needs and social integration to the child. Periodic evaluation of the condition and maintenance of juvenile homes are taken into consideration for policy issues and implementation and also to make the system work efficient i.e. without any flaws. The governments also provide Child Welfare Centers and allowances.
The JJ act, promotes deinstitutionalization and provides institutionalization, only as the last resort. The alternatives provided under the act are care for children in a family environment, i.e. foster care programs, and it also provides for participation, best interests policy, and family responsibility. The former principle implies that child’s decision must be considered in deinstitutionalization. Second one suggests that, all the decisions related to child are taken in child’s best interest and it must ensure development of child. The third one suggests that, the child must be provided with a family for care and protection.
Actions taken by courts
The courts in India has brought out tremendous changes to the aspects of Human Rights, by following the aspects of International law and other international organizations by upholding various conventions and treaties. The principle of last resort was recognized in the case Jose Maveli v State of Kerala,where the court entrusted the children to institution, until finding their father.This case has also upheld the “best interest doctrine” as enshrined in article 3 of CRC.
Indian constitution and statutes prohibits child trafficking in any possible manner.Children are institutionalized because of migration, disease or disability. The other reasons include an education and child-care. States have the responsibility to protect the children in the need of care and protection. However, the current trend shows inadequate maintenance of the Juvenile Homes, poor interactions and low staff. Orphan children in most of the institutions are subjected to extreme vulnerability. They are often exposed to the social taboos such as physical or sexual violence, stigma and poverty. It ultimately causes the child to lose sensitivity, personal identity, and sometimes, are drawn into crimes. All these instances often, are not reported. Immediate and necessary actions are to be taken in this regard.
1. Convention on the Rights of the child, Nov. 20, 1989, 1577 U.N.T.S. 3.
2. Jose Maveli v. State of Kerala, LQ 2007 HC 7038.
3. Census of India (2011) Census [online], Government of India, Available at: https://censusindia.gov.in/2011census/ [Accessed 18 August 2021].
4. Protsahan, Covid-19 Pulse Check Ground Report, https://protsahan.co.in/wp-content/uploads/2020/07/Pulse-Check-3_Covid-Ground-Report.pdf [Accessed 18 August 2021].
5. Press Release, Union Cabinet approves setting up of National Nutrition (Dec. 1, 2017) available at: https://icds-wcd.nic.in/nnm/PressRelease.htm# [Accessed 18 August 2021].
6. Press Release, Ministry of Human Resource Development and Women & Child Development issues guidelines on food safety and hygiene under the mid-day meal scheme (Feb. 13, 2015) available at: https://www.education.gov.in/sites/upload_files/mhrd/files/PRESS_RELEASE-MDM-new.pdf[Accessed 18 August 2021].
7. See Press Release, India celebrates commitment to child rights with National Summit for Every Child in India at Parliament on World Children’s Day, (Nov. 19, 2019) https://www.unicef.org/india/press-releases/india-celebrates-commitment-child-rights-national-summit-every-child-india#:~:text=India%20ratified%20the%20CRC%20in,1990%20to%2039%20in%202016 [Accessed 18 August 2021].
8. Union Ministry of Women & Child Development, Child Line India - Call 1098, available at: https://www.childlineindia.org/[Accessed 18 August 2021].
9. Ministry of Women and Child Welfare, The Integrated Child Protection Scheme (ICPS), Government of India, New Delhi, 2009, available at: https://wcd.nic.in/integrated-child-protection-scheme-ICPS [Accessed 18 August 2021].