Barkha Deva I The Hindu I December 21, 2015 

The manner in which crucial laws are being amended will end up eroding rights that have deep consequences on the lives of our children and us as citizens of a thriving democracy. All because the state hasn’t been able to deliver what it was mandated to do.

The last few months have seen an alarming trend of crucial laws being amended, or sought to be amended, in a manner that will end up hurting the very cause that they were envisaged for — to protect rights that have deep ramifications on the lives of our children and us as citizens of a thriving democracy. All because the state has not been able to deliver what it was mandated to do.

The most recent, and probably the one that must concern us all the most, is the law upheld by the Supreme Court: the Haryana State government’s amendment of the Haryana Panchayati Raj (Amendment) Act, 2015. The amendment was ostensibly an attempt to promote education and sanitation by mandating that candidates for Panchayat elections had to be both literate (Class 10 in the general category, Class 8 for Dalits and Class 5 for Dalit woman) and have a toilet in their homes.

While the courts have upheld the amendment, and their decision must be based on the correct interpretation of the law, we could well be at a dangerous inflexion point in our democracy — as such reasoning could extend itself to the next two levels of our democratic institutions (Legislative Assemblies and Parliament) if we are not careful.

We seem to be forgetting that the Constituent Assembly of India had debated the issue of universal adult suffrage extensively and finally decided to give Indians this strongest tenet of modern-day democracy. It took a measured decision that education, gender, economic status or religion cannot restrict an adult Indian’s ability to vote or stand for election.

So, while 100 per cent literacy and sanitation are definitely objectives that the State and national governments must strive towards, the fact that the state has failed to provide the same must not be remedied by taking away the political voice of a citizen of this country.

Impacting learning outcomes

The next and closely related case in point are the amendments to the path-breaking Right to Education (RTE) Act. While the Act’s implementation has been a bit of a mixed bag as poor learning outcomes set alarmbells ringing for policymakers, there is no denying that the Gross Enrolment Ratio (GER) has seen a steady upswing across the country. At the elementary level (Class I-VIII), the GER is up to a remarkable 95 per cent, with girls seeing an incredible score of 100.6 per cent (2013-14). The news is even more heartening for Scheduled Caste students, with the GER for both boys and girls at a whopping 102.8 per cent for the year 2013-14. When traditionally marginalised sections of society see such significant change, thanks to a piece of legislation, there is reason to celebrate.

Yet, a key and egalitarian aspect of the RTE, the “no detention policy”, that may at least partly be responsible for these off-the-charts GER numbers, is being questioned by some experts, bureaucrats, political parties and governments. The idea behind the policy was that children should not face the psychological and emotional trauma of examinations till Class VIII. Those pushing for dropping the “no detention policy” argue that this has perpetuated poor learning outcomes and essentially postpones the inevitable, burdening the school system from Class IX onwards.

It is a view that led the Delhi and Rajasthan governments to amend the RTE, but it does not take into consideration that as a part of the no-detention policy and the RTE, children’s learning outcomes were meant to be measured via a system called the Continuous and Comprehensive Evaluation, or CCE. The CCE required teachers to track each student’s progress and tailor lessons to student capabilities and provide remedial learning opportunities for students who needed help.

If more States and the Centre adopt this amendment, we will be back to children as young as five undergoing the stress of examinations and trauma of being kept behind if they fail. Activists point out that the biggest effect of this step would be on children from poor families, with chances of them dropping out of the system. So, not only could we be reversing the progress we have made in the GER numbers, largely because the state did not ensure effective implementation of the CCE and the RTE Act, but also end up reducing the chances of children from such families later standing for Panchayat elections in, say, Haryana.

Rehabilitating juveniles

The third is a more emotionally charged debate: amendments to the Juvenile Justice (Care and Protection of Children) Bill, 2015 adopted by the Lok Sabha this May and expected to be taken up by the Rajya Sabha in the current session of Parliament. The most contentious amendment to this Bill proposes that the minimum age for a child to be placed in the adult criminal justice system should be lowered from the current 18 years to 16 years for certain crimes. This is supported by certain sections of society which have literally been baying for blood, post the horrifying Nirbhaya rape case. Ill-informed arguments have muddied the discourse to make the average citizen believe that juveniles committing crimes do not really face any punishment today, whereas the truth is that the juvenile justice system actually provides an alternative system for trial and punishment of juveniles in keeping with their age, physical and emotional status.

There is extensive research to prove that transferring children to the adult justice and prison system does not reduce crime, and in fact increases recidivism as it exposes these children to hardened criminals. Experts also believe that the human brain is not completely developed till one is in one’s mid-20s and young adults are actually more susceptible to peer pressure, and relatively unstable in emotionally charged situations. Globally, most progressive countries and their judicial systems have taken cognisance of such research, a case in point being the state of Connecticut, in the U.S., which has recently seen a move to raise the age of juvenility. There is also extensive research to prove that more rehabilitative juvenile justice systems have repeatedly been found to lead to lower re-arrest rates than the adult system, and, therefore, result in lowering overall crime numbers.

While National Crime Records Bureau data indicates that children from the marginalised sections of society will suffer the most (as over 55 per cent children in the juvenile justice system come from families from the lowest income bracket) if these amendments pass, they could also end up impacting a number of young boys in consensual relationships, as they may face incarceration in the adult prison system if their partner’s parents decide to file a case against them under the proposed law.

It is strange that the very state which has not been able to ensure the effective implementation of the envisaged ecosystem for rehabilitating children through various institutions (child welfare and selection committees, juvenile justice boards, special juvenile police unit, etc.) established under the Juvenile Justice Act, 2000 (and therefore has in some way contributed to the rise in crime?) is now trying to “remedy” the situation by actually worsening it.

Children at work

And finally, let’s look at the much ignored issue of child labour in India. There are reportedly 43 lakh children who are forced to work in our country and the proposed amendments to the Child Labour (Prohibition and Regulation) Amendment Bill is meant to strengthen the legislative framework that prohibits their employment. But will it?

Children under the age of 14 are currently banned from working in hazardous industries but the government proposes to drastically reduce the number of industries considered hazardous from 83 to 3. Under the garb of family-run enterprises, children will also be allowed to work in industries like zari, bangle and carpet making, brick kilns, diamond cutting and, arguably, even scavenging.

The truth is that a number of these industries rely on the small nimble fingers of children and perpetuate a system that thrives on bonded labour, or at best very poor wages. The government argues that these amendments are being made in response to the socio-economic realities of the country and to allow children to learn traditional crafts after school hours.

Even if we were to say for a moment that this was not a specious argument trotted out by those who want to perpetuate the existing system, a sobering study points out that while combining school and work is a reality for poor children in India, the likelihood of children who work for over three hours dropping out of the school system is estimated to be as high as 70 per cent. In a country where the trafficker passes off as a “Mama” or a “Mausi”, where is the question of the state actually being able to monitor the number of hours a child actually works, even if he is actually working in the family enterprise?

And once again it will be the girl child who will be the first to be pulled out of school and put into the workforce, as will children from the economically weaker and marginalised sections of society — the very children most at risk and whom the Act is largely designed to protect.

Not only will these amendments not help eliminate child labour, but they will also, in all likelihood, deny our children their rights under the RTE Act, possibly creating the perfect preconditions for some of them to take to juvenile crime.

Will we be the generation that will preside over a system where the state dropped the ball — and our children and we paid the price for it? Under the garb of doing right by them?

(Barkha Deva, a commentator on the intersects between politics, governance and policy, is Associate Director at the Rajiv Gandhi Institute for Contemporary Studies. These are her personal views and do not represent the views of the RGICS or its trustees.)

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