Securing the future generations - Legal entitlements and Children in India

The development of young children is now increasingly recognised as a development and human rights issue of critical national importance. The statistics on the malnutrition and neglect of young children in India today cannot be ignored, and their significance for the nation’s overall human resources cannot be overemphasized. However, the State’s response to the problem has been slow so far. It was in response to rising voices demanding greater attention from the State on the issue of ‘Early Childhood Development (ECD)’ that the Government came out with a comprehensive ‘Nation Early Childhood Care and Education (ECCE) Policy, 2013’.

The National ECCE Policy, 2013, defines early childhood as ‘the formative stage of the first six years of life’. According to the globally and nationally held view, the ‘Right to Early Childhood Development (ECD)’ means the right of the child to survival, growth and holistic development, and the right to inputs that will make such development possible – care, love, nurturing, protection, health, nutrition, stimulation, play and learning. It is during this period that the foundations of cognitive, physical and socio-emotional development, language and personality are laid.
As per the 2011 Census, India has 158.7 million children in the age group of 0-6 years, comprising about 16% of the total Indian population. In the period 2008-2013, 43% of India’s children under 5 were underweight and 48% had stunted growth.

Despite these alarming figures, there is no clear legal articulation of the entitlements of these young children. The present legal framework remains wanting and weak as far as ECD is concerned, even though Article 45 of the Constitution directs that “the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”

It has been more than two and a half decades since India signed and ratified the Convention on the Rights of the Child, 1989, but the idea of justiciable rights for children, especially young children, has yet not taken shape. Until now, the State has addressed the needs of children through a fragmented approach based on targeted interventions, even though the Integrated Child Development Services (ICDS), conceptualized in 1972, had kept the integrated needs of children in mind and was designed as a programme to provide health, nutrition and early childhood care and education. Some of the current policies concerning young children are:
• National Nutrition Policy, 1993,
• National Plan of Action for Children, 2005,
• National Early Childhood Care and Education (ECCE) Policy of 2013, and
• National Policy for Children, 2013.
These are undoubtedly well intentioned and relevant policies/schemes, but being politico-executive initiatives they lack the status of law and don’t create any justiciable rights in favour of beneficiaries. They only articulate promises.

The Universal Declaration of Human Rights (UDHR) (1948), which represents the first global expression of universally protecting fundamental human rights, pronounced the special rights of the child for the first time by providing that “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”

The United Nations has played a prominent role in evolving ECD. In a General Discussion in 2004 dedicated to the theme of ‘implementing child rights in early childhood’, the General Assembly stated: “having reviewed since 1993 the situation of child rights in almost all countries of the world, the rights of babies and young children are too often overlooked. This is so although it is widely recognized that early childhood is a crucial period for the sound development of young children and that missed opportunities during these early years cannot be made up at later stages of the child’s life.”
In our context, the National Food Security Act (NFSA), 2013 constitutes one of the most important step in the positive direction. This Act significantly recognizes the different needs at different stages of childhood and specifically uses the word “entitlements”. The Supplementary Nutrition Rules, 2015, have made provision for different categories of beneficiaries under the ICDS, including children in the age group of six months to six years. The Rules are primarily designed to bridge the gap between the recommended dietary allowance and the average daily intake, and also lay down rules for monitoring and enforcing quality standards for meals.

CONCLUSION & SUGGESTIONS: The current legal and constitutional rights framework in India does not place enough emphasis on the rights of young children. The protection of early childhood development in India thus depends on Policies and Schemes created and run by the Central and State Governments. Following measures need to be taken in this regard;
• The constitutional framework of fundamental rights and directive principles should reflect the special status and needs of children in the under-6 age group.
• Statutory backing should be given to the existing schemes and policies in order to create legal entitlements in favour of children.
• This should be coupled with an integrated and holistic approach to protecting the interests of the young child, keeping in mind the need for health, nutrition, care and education as the primary inputs for early childhood development.
• As per the recommendation of the NCRWC, a new Article 24A be inserted to Part III of the Constitution to ensure that the child’s right to basic care and assistance becomes an enforceable right. The Article should read as follows: “24A. Every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation”
• Section 11 of the Right to Education Act should be made mandatory and should read as follows: “with a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate Government shall make necessary arrangement for providing free pre-school education for such children.”
• It is suggested that the Maternity Benefit Act be amended in accordance with the forward looking provisions in the CCS Rules, whereby maternity benefits should be increased from twelve weeks to 180 days. Provision of maternity benefits should be made obligatory on the State and not left to the will of the employers and should cover all women, including women working in the unorganized sector.
• A statutory authority or Council for Early Childhood Development (“the Council”) be created. The Council may be composed of officials from the Ministry of Women & Child Development, Ministry of Human Resource Development, Ministry of Finance, Ministry of Labour and Ministry of Commerce & Industry and representatives from civil society active in the field of early childhood development, and other such members as may be specified. The powers and responsibilities of the Council should be specified by law. Similar Councils to be established at State Level as well.
• With regard to Section 6 of NFSA, there is need for evolving guidelines or some methods for identification of children suffering from malnutrition and for referring such children to appropriate healthcare providers
• Provision should be made for the training of teachers to provide pre-school education, and there should be a budgetary allocation to fund training programs for the same to ensure quality standards and a proper implementation of the best methods of promoting play and learning. Teachers imparting pre-school instruction should be considered at par with primary school teachers, and this should reflect in the terms and conditions of their employment. This institutional aspect is essential for ensuring that pre-school education be given sufficient importance.
• It is suggested that every child under six should have an unconditional right to crèche and day care provided, regulated and operated by the State, as found for example in the Act on Children’s Day Care of 1973, Finland. The provision of crèches should be made the responsibility of the State, not of the employer, especially in the unorganised sector.

Considering the special vulnerability of the children, India as a nation looking for faster, sustainable and more inclusive growth, should place its future generations on a firm footing through a rights based policy initiative rather than making children the victims of leviathan’s charity.

By: Abhishek Sharma