HUMAN RIGHTS LAW

The Best Interest of the Child and the Right to Participation In the Context of India

Submitted by:
Arvind Srinivas Id No. 1555 III Year III Trimester B.A. LL.B. (Hons.)

Date of Submission : 11 T H M AY , 2011

Research Methodology

Aims and Objectives: This paper aims at analysing the concepts of the best interest of the child and the child's right to participation in the Indian context, the problems involved and the solutions to these problems. Research Questions: The research questions being addressed in this project are: 1. What are the concepts of the best interest of the child and the child's right to participation? 2. To what extent have these concepts been introduced and implemented in India? 3. What are the problems with the introduction and implementation and the solutions thereto? Scope and Limitations: The scope of this project is to make a comprehensive analysis of the principle of the best interest of the child, the child's right to participation and the relationship between the two. The paper also examines the Indian scenario with respect to these aspects. The examination is theoretical in nature and case law has not been dealt with extensively. Sources of Data: The researcher relied upon secondary sources such as books, articles, journals and online databases. Style of Writing: The researcher has used both descriptive and analytical styles of writing. Mode of Citation: A uniform mode of citation has been adopted throughout the paper.

Introduction The Convention on the Rights of the Child (CRC) was promulgated in 1989 and was ratified by India in 1992. Only two countries, the United States of America and Somalia, have failed to ratify the CRC. According to UNICEF, the CRC is the first legally binding international instrument to incorporate the full range of human rightscivil, cultural, economic, political and social rights. Out of these two major principles are studied in this research paper. The first principle is that of the best interest of the child. The gist of this principle is that the course of action which is most advantageous to the child should be given paramountcy while deciding any matter related to that child or group of children. The second aspect examined in the paper is the right to participation. This right seeks to assign, to the opinion of the child, a level of importance that is not naturally accorded due to the assumption of the lack of cognitive ability on the part of the child. Further there is a possibility of the two aspects coming into conflict when the child's opinion is in contradiction of what would be in its best interest. The question as to whether such a conflict can arise and if so how it is to be resolved is also looked into in this paper. The situation in India with respect to the best interest principle and the right to participation have been discussed extensively, especially in the context of guardianship and custodial litigation. In order to avoid repetition, the paper will focus more on the aspect of juvenile justice and the reflection of the principle of the best interest of the child therein. Judicial activity in the field and other measures are discussed briefly. Finally the problems of founding, providing and enforcing these aspects are examined from the viewpoint of cultural relativism. Recommendations to overcome these problems have also been made.

I. The Concepts of Best Interest of the Child and the Right to Participation 1.1 Best Interest of the Child The principle of best interests of the child is a basic principle of interpretation evolved to create boundaries to the extent to which adults have authority over children. Adults may include parents, professionals, teachers, medical doctors and judges to name a few. The principle underlying the rule of best interest of the child is the recognition of the fact that an adult is allowed to undertake decisions on behalf of a child due to the childs lack of the power of cognizance.1 The rule itself is culled out from from the Welfare System or Protective system that was formulated at the beginning of the 20th century. It has been transformed by the UN CRC into a benchmark that can be applied to measure if a State, through its various decision makers, has acted proportionally and appropriately when considering the best interests of the child.2 1.1.1 Interpretation of the rule The concept of the best interests of the child may be interpreted or given meaning to in two ways. First, this concept may be viewed as a rule of procedure. Whenever a decision is about to be made that will have an impact on the life of a child or a group of children, the process by which such a decision is arrived at, must carefully take into account, both the positive and negative impacts of the decision on the child or children in question. Further, this impact must be utilised as the primary consideration when weighing the various interests at stake. 3 Second, the best interest rule acts as one of the foundations for a substantive right. The right entails the guarantee that this rule will be applied whenever a decision is to be made with regard to a child or a group of children. States parties, under the CRC, are under an obligation to create and maintain mechanisms that will facilitate determination of the best interests of the child. Legislative measures must also be taken to ensure that those who are vested with the authority to take decisions concerning children must consider the best interests rule as a matter of procedure.4 1.1.2 Scope of the rule Practically speaking, it is unclear as to what the rule actually includes or excludes. Best interest of
1 C. Reichel, V. Deusen, The Best Interest of the Child and the Law, Pepp. L. Rev., vol.18, 1990-1991, p.418. 2 Id. 3 J. Zermatten, The Best Interests of the Child: Literal Analysis, Function and Implementation, published by Institut International Des Droits De L'enfant, available at [Link] 4 Articles 3 and 4 of the CRC specifically state this.

the child needs to be determined by the decision makers as an inseparable part of the process where rules of procedure will be applied. However, there are some considerations that have been accorded consistent recognition as a part of the best interest principle: The importance of every child as an individual with opinions The short, medium and long term perspectives of the life of the child, bearing in mind that the child is a human being in development A global standard under the CRC which aims to eliminate the variotions brought about by the application of the theories of cultural relativism. 5 1.2 Right to participation In the CRC, childrens participation rights are contained in the cluster of Articles 12 through 17, which refer to civic participation: right to have voices heard and considered (Article 12), right to freedom of expression (Article 13), right to beliefs (Article 14), right to association (Article 15), right to protection of privacy (Article 16), and right to access appropriate information (Article 17).

Article 12 of the CRC recognises the fact that children possess the ability to share insights about their lives, process information, develop opinions and make decisions. It is a known fact that children need to be heard during all stages of their development, starting right from infancy. The basis of the right to participation is that when children are given due importance, they develop a strong sense of self-esteem. Secondly, children realize that others value what they have to say and thus feel accepted as individuals with their own feelings and thoughts. Further, when children are involved as participants, they are engaged and learn from the experiences. 6 1.2.1 Scope of the right To decide does not mean that children will not have to follow rules and will make all decisions for themselves regardless of their welfare and the welfare of others. It means that they will be consulted and that their views will be considered. The CRC includes the right of children to express views
5 Supra note 3. 6 G. Lansdown, Can you hear me? The right of young children to participate in decisions affecting them, working paper no.36 published by the Bernard van Leer Foundation available at [Link]

freely and to obtain sufficient information to make informed decisions, although it does not imply an obligation for children to express their views.7 1.2.2 Advantages of the right to participation When children are allowed to participate they8: Develop respect and trust in self and others which helps them to form meaningful bonds. Become effective communicators and enhance their language skills. Begin to recognize and embrace differences in others and to develop empathy. Gain confidence to use their imaginations and develop their creativity. Feel safe to try, to explore and to learn and thus are more likely to become lifelong learners. Learn to cooperate, collaborate and practice democratic decision-making skills. Feel empowered by these opportunities and are more likely to become active contributing citizens who are respectful of the rights of others. Develop healthy self-esteem to help them adapt to changes and cope with the challenges of adult life. 1.3 Relationship between Article 3 and Article 12 of the CRC Articles 3 and 12 which deal with the principle of the best interest of the child and the right to be heard respectively have some very significant similarities. The link between Articles 3 and 12 is obvious. How could a decision-maker accurately determine the best interests of a child without first asking the child its opinion on the question at hand? 1.3.1 Similarities in structure Primarily, the two provisions have identical structures and each one acknowledges the same competencies of decision making authorities that are accountable for decisions concerning a child or group of children, either in accordance with the best interests principle, or with regard to enabling the child or group of children to express an opinion. Articles 3 and 12 are founded on the same model in which each article provides recognition to a subjective right of a child or children to express their views in all decisions that affect them and aims to make sure that the best interest principle will be considered in all decisions relating to a child or group of children. The similarities are as follows9:
7 See Article 13 of the CRC. 8 Report by the Canadian Child Care Federation, To Speak, Participate and Decide the Childs Right to be Heard, available at [Link] 9 Supra note 3 at p.9

 Both Articles obligate decision makers to adopt all possible means to determine the personal state of every child or group of children, in the process that is followed to arrive at a decision Both Articles impose a duty to follow a case by case approach which is crucial to children's rights. This ensures that every child is recognized as being unique and in need of tailored remedies. Articles 3 and 12 direct the decision maker to accord due importance to both the opinion of the child and the best interests of the child and to consider these two elements as determinant factors in the decision making process Both Articles oblige State parties to promulgate legislation in this area and create specific mechanisms to facilitate the consideration of the views of the child and its best interest Both Articles 3 and 12 obligate decision makers to regard the child as a person with complete entitlement to their rights and as possessing sufficient abilities, irrespective of age, to take part in the decisions affecting them and to make known their opinions regarding their interests. 1.3.2 Harmonious construction Article 3 of the CRC is commonly recognized as an expression of a protective model wherein the decision-maker undertakes decisions with a view to ensuring the well- being of the child. As noted above, this is a traditional concept borne out of the Welfare System that prevailed for the majority of the 20th century. In my opinion, it is impossible to consider Article 3 strictly from this perspective of protection as it disregards the necessity of hearing the views of the child in all decisions affecting the child. In my opinion, the concept of the right of the child to be heard contained in Article 12 of CRC should be extended to all situations where the best interests principle must be applied10. In concrete cases that are individually assessed and evaluated, there can be no contradiction since the decision-maker must: Hear the views of the child regarding the case as well as any and all possible solutions Give due weight to the childs opinion in determining the best interests of the child in a given situation and Reach a decision after having duly weighted the opinion of the child and considered her/his best interests. Thus, there exists no fiction between Articles 3 and 12. There is also no incompatibility between the
10 M. Freeman, Article 3: the best interests of the child, (Martinus Nijhoff Publishers, 2007), p.7

protective approach adopted by Article 3 and the participative approach contained in Article 12. It is obvious that Article 3 along with Article 12, forms the basis of the concept of the child as a subject of rights. Consequently, the child is no longer merely a human being in need of assistance and protection, but an individual who has something to say and an evolving capacity to influence decisions taken that will impact on its interest. Thus Articles 3 and 12 are complementary. Article 3 represents the ideal situation that has to be achieved whereas Article 12 provides a method to help facilitate the determination of the best interest of the child by allowing the child affected by the decisions to express its opinion about how to achieve this ideal situation.

II. Best Interest of the Child and the Right to Participation in India The principle of the best interests of the child is primarily reflected in the Constitution of India 11, amply aided by the National Policy for Children, the National Plan of Action for Children, the National Charter for Children, as well as in other schemes and programs related to children. While promoting the principle of the best interests of the child, the Government is currently focusing on issues related to the promotion of a child rights based approach and participation in training of professionals dealing with child rights. Various measures have been adopted to apply the principle to maximum effect. 2.1 Legislative Measures The best interest principle is present in legislation at two levels. At a more specific level legislation reflecting the principle deal with individual children. Examples of such laws are laws with regard to proceedings of divorce or separation, adoption and State intervention to protect children from abuse. At a second broader level the principle is also reflected in legislation and schemes covering large groups of children and their families poverty reduction laws, laws relating to education and schemes to make these laws effective such as the mid day meal scheme. Some of these legislations are examined below. 2.1.1 Laws relating to guardianship The principle of the childs best interests has been utilized in guardianship litigation to consider the childs wishes and preferences in a situation where the child is mature enough to express a considered opinion on a matter concerning his or her life. The Guardianship and Wards Act sets out guidelines for deciding the best interest of the child, giving due consideration to age. 2.1.2 Juvenile Justice The Juvenile Justice (Care and Protection of Children) Act, 2000, provides for the treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters related to and disposition of delinquents. The Juvenile Justice (Care and Protection of Children) Act, 2000, replaces the existing Juvenile Justice Act, 1986. This Act adopts a child friendly approach and lays down provisions for for proper care, protection and treatment and rehabilitation of children in need of such care and protection. The aim of the Act is to help children get their rightful place in society by treating children in the best possible manner. The following are the salient features of the Act:
11 See Articles 15(3), 21 A, 24, 39e, 39f, 45 and 51 A of the Indian Constitution.

The law provides for separate treatment for juveniles in conflict with the law, and children in need of care and protection, so as to give clarity and distinction in the treatment of such categories.12

This law recognizes the United Nations Convention on the Rights of the Child and other international conventions thus giving due recognition to international standards and practices regarding the treatment of children.

Previously there was no clear distinction between the juvenile offender and the neglected child, which led to mixing of children of the two categories in the observation homes. In the new Act, the two categories have been clearly defined.13

It prescribes a uniform age of 18 years below which both boys and girls are to be treated as children. Previously the age limit for boys was 16 years.14 The Juvenile Court has been redefined as Juvenile Justice Board in order to remove the stigma associated with appearing in a court like adult criminals. Children will not have to wait for justice indefinitely, as the new enactment provides for the disposal of cases within a limited period of four months by the concerned authorities. The Act makes it mandatory to set up a Juvenile Justice Board and Child Welfare Committee either for each district or groups of districts.15 Previously, there was no juvenile court or juvenile welfare boards, and the powers of these courts and boards could be exercised by the District Magistrate, SDM, Metropolitan Magistrate or Judicial Magistrate (first class).

All offences against a juvenile are now designated as cognisable. This will enable the police authority to take cognizance of such offence seriously and would also result in significant reduction in such offences against children.16

Special Juvenile Police units have been set up under the Act, which will enable trained police personnel to carry out their functions more effeciently while handling children.17 Role of voluntary organisations and local authorities has been specified for involving them at various stages for handling and rehabilitating children. The Act states that State Governments may recognise reputed and capable voluntary organisations and provide them assistance to set up and administer as many shelter homes for juveniles or children as may be required. Voluntary organisations should mandatorily also be involved in the inspection of various homes.18

12 13 14 15 16 17 18

For the differences see s.2 (d) and s.2 (l) of the JJ Act, 2000 Id. s.2 (k), JJ Act, 2000 s.4, JJ Act, 2000 s.27, JJ Act, 2000 s.63, JJ Act, 2000 s.35 (2) and 37 (1), JJ Act, 2000

This Act increases accessibility for children by creating a wide network of Juvenile Justice Boards, Child Welfare Committees and different types of Homes in each district or group of districts. Special emphasis has also been given in this Act for the rehabilitation and social reintegration of children by placing all clauses for this purpose in a separate chapter. The various alternatives provided are adoption, foster-care, sponsorship and after care. This would ultimately benefit abandoned, destitute and neglected children who would get a home and family of their own.19

2.1.3 Adoption Laws The Hindu Adoption and Maintenance Act lays down the manner in which Hindus can adopt. The parents of other communities can only take over the care of a child under the Guardianship and Wards Act, 1890. The principle of the best interests of the child has been ensured through the Central Adoption Resource Agency (CARA), which has been set up under the Ministry of Social Justice and Empowerment, through the direction of the Supreme Court for ensuring the best interests of the child, through the issuance of a set of guidelines. In addition to this, voluntary coordinating agencies in almost all States have been set up in association with NGOs to serve the best interests of the child through adoption. 20 The Juvenile Justice Act, 2000 now allows for adoption of a child under the Act by persons belonging to any community. This has been provided for such categories of children who have a specific identity of their own irrespective of caste, creed or religion and after adoption would get the identity of adoptive parents. The Juvenile Justice Board has been empowered to give such children in adoption even to a single parent, and allowed parents to adopt a child of the same sex, irrespective of the of the number of biological sons or daughters. The prime objective behind allowing adoption under present enactment is to ensure that the right to a family is not denied to any abandoned, orphaned or destitute child. The present enactment aims at facilitating the adoption of children who come within the purview of this law, and to bring in-country and inter-country adoptions at par.21 2.2 Role of the Judiciary In furtherance of the provisions of Section 17 of the Guardians and Wards Act, 1890, Courts have, wherever relevant, considered the minors wishes in custody matters. This is considerably divergent
19 Convention on the Rights of the Child, India First periodic Report 2001 available at [Link] 20 A.S. Shenoy, Child Adoption Policies in India- A Review, presented at the 1st International Conference on Intercountry Adoption organized by Child NGO Federation available at [Link]/unsd/vitalstatkb/[Link] 21 S.41 JJ Act, 2000

from the traditional legal view that a minor, as a result of age, is of immature intellect and imperfect discretion, and, as such, is unable to foresee the consequences of his or her actions. 22 If the Court acknowledges misconduct by the existing guardian, the preference of a minor who has attained sufficient age may be sought in the replacement of such guardian.23 Similarly in the adoption of minors under Hindu Law, the Court may only permit adoption in cases in which it is convinced that, given the circumstances, the adoption will protect the childs welfare. More importantly, in cases of adoption, Courts have consulted the child as to his or her wishes, and have often used such preference as the basis for granting or rejecting a claim for adoption. The relevance of the childs wishes depends primarily on its age, coupled with the understanding of the consequences of adoption. In fact, Courts have sometimes chosen to bring the child into contact with the prospective parents to ascertain the reaction of the child. Thus, even in cases of adoption, welfare considerations find relevance.24 The Supreme Court of India has developed the concept of social interest litigation to enforce the Fundamental Rights and give strength to the Directive Principles of State Policy. It is interesting to note that several leading cases of social interest litigation concern the rights of children either because they impact on children or have been brought specifically before the courts to address infringements of the rights of children guaranteed by the Constitution. The latest case of Bachpan Bachao Andolan v. Union Of India & Ors serves as a perfect example. Judicial activism is also a strategy for promoting State accountability and compelling action. 2.3 Policies and Programs Wherever policies and schemes are being framed, the Government collects inputs from an array of sources. Best interests of the child are considered even while framing important policies such as the budget. In addition to inputs generated by the Governments own machinery at all levels, interaction with NGOs on specific issues also leads to the best interests of the children being seriously considered before a final decision is taken. NGOs have also drawn attention to the absence of child rights in the agenda of political parties.25

22
S.17, GAWA.

23
J. D. M. Derrett, Introduction to Modern Hindu Law (London: Oxford University Press, 1963), p.63. See also Mausami Moitra Ganguli v. Jayant Ganguli, AIR 2008 SC 2262

24
Ibid, at p.100. 25 Supra note 19

III. Problems and Solutions 3.1 Problems According to NGOs, the administration may need to be equipped better for promoting childrens rights. In addition, concerned officials should be sensitised to issues related to children. NGOs feel that awareness about what should constitute the best interests of the child is lacking among most adults who regularly interact with children or influence their lives in some way. Secondly, there is general lack of will to implement and protect the best interests of children. 26 Without going into the much discussed problems of implementing child rights and protection of children from abuse, it can be said that one of the problems existing while implementing in India, of the CRC in general and the principle of best interest of the child in particular, lies in the perception that is held by the majority of Indians with regard to the place of the child in society. From the time that the child is capable of cognizance, adults drill the fact into the child's mind that whatever the adults say is right and that the child should accept it without question. This blind faith is not only demanded by parents but by other adults such as uncles, aunts, grandparents and even most teachers. Any deviation from these norms is treated harshly until the child is conditioned to obey whatever the elder person says, however wrong it may be. Thus the right to participation, in most cases, does not even have a notional existence.27 A further problem exists with children from poor families. Children in such families are seen only as sources of additional income. To such children, even basic rights are denied. In the long term this phenomenon turns into a vicious cycle as these children will grow up with the same attitude as their elders and in turn will pass on their views to the next generation, resulting in a perpetual set of exploited children. Though the CRC aims to set a global standard by eliminating variations arising out of cultural relativism, such elimination is never completely possible. For example the concept of legal separation of the child from the parents. In a country like India where traditions and cultures dominate the manner in which people live their lives, such concepts are inconceivable and even abhorred. The common perception is that however abusive the parent is toward the child, it is his or her right to be so and in most cases the child is blamed as having provoked the abuse.
26 Archana Mehendale, Childrens Rights, EPW, Vol 39 No. 16 April 17 - April 23, 2004 27 Supra note 6.

Another evil of cultural relativism is the subjectivity that it brings to the definition of what is abuse. While in the western world physically harming the child might be perceived as abuse, in India it is almost the normal course of events. A teacher taking the cane to a student is often seen as a good thing in India as it will make the child a disciplined individual whereas in countries such as the U.S. a caning might just be the end of that teacher's career. A child in the U.S. has the option of calling 911 at the smallest instance of abuse whereas in India such a call would most probably be met with derision and contempt. Innumerable such comparisons can be made but the gist of it is that Indian culture is heavily biased towards the adults and even gives them a right to control the child in any manner possible. These factors add up to an unbelievably adverse environment for the cause of child rights. An added disadvantage is that, unlike other disadvantaged groups, children do not possess the resources to agitate for their right. Even if such an agitation were to take place, who would take it seriously? 3.2 Solutions 3.2.1 With respect to the best interests of the child Awareness has to be created among adults with respect to the rightful place of the child in society. Awareness with respect to the rights held by the child will lay the foundation for all further policies and schemes. The schemes themselves cannot be independent stand alone efforts. All schemes have to be networked in such a way so as to best serve the interests of children. For example the Sarva Shiksha Abhiyan should be linked with poverty alleviation measures such as the NREGA in order to prevent the need for the child to not attend school in order to work to contribute to the family income28. The authorities that are in charge of formulating and implementing the programs need to be linked. For example the judiciary and the NGOs involved should interact in order to get the best result for the child in question. The institution of an overarching body to oversee all child and child rights related matters would go a long way in integrating, the currently diverse and scattered, efforts at assigning paramountcy to the best interests of the child. Alternatively the state could appoint a political official specializing in childrens rights. This official would serve as an ombudsman in all child rights matters.29 For the overarching institution to function at maximum efficiency it is imperative that it ha

28 S. Sinha, Emphasising Universal Principles towards Deepening of Democracy, EPW, Vol. 40 No. 25 June 18 June 24, 2005 29 Supra note 8

an overarching piece of legislation to implement. The UN CRC could be used as a model to promulgate this child rights law. The best interest principle would then be reflected strongly as all the aspects of child rights would be contained in one single cogent law. 3.2.2 With respect to rights to participation All families, communities and policy makers should be educated about childrens participatory rights. Development and widespread dissemination of promotional materials and educational tools is required to emphasize the importance of childrens participation and consultation in matters affecting them.30 Kindergarten and primary school teachers are well positioned to promote childrens participatory rights. All practitioners and educators should have access to training that will inform them about practical ways they can help all children recognize and exercise their right to be heard in everyday practice31 Consultations with children should be increased within all levels of society. Children should be asked to share their views on all public policies that affect them. 3.2.3 Global measures Though the provisions of the CRC are binding as per international law, the introduction of incentives and punitive measures within the instrument itself would go a long way to increase the States' enthusiasm to uphold the principles contained in the CRC. For example additional monetary aid to States with good child rights records could act as an incentive. Conversely cutting off aid to those countries with child right violations would be an effective punitive measure.32 Secondly the debate on child rights in each State should reflect the contemporary reality of that State. The immediate environment, the inherited socio-cultural aspects and issues of gender and caste are all factors to be considered.33

30 Supra note 6 31 Supra note 8 32 For a discussion on the role played by UNICEF see J.E. Oestreich, UNICEF and the Implementation of the Convention on the Rights of the Child, Global Governance, vol.4, 1998, p.197. 33 Vasanthi Raman, Politics of Childhood, EPW, Vol. 35 No. 46 November 11 - November 17, 2000

Conclusion The paper set out with an aim to examine the concepts of the best interest of the child and the child's right to participation. It was found that the best interest principle, though not clearly defined is a policy aimed at giving paramountcy to the considerations of the child rather than those of the adults concerned. The right to participation was found to strengthen and facilitate the principle of the best interest of the child by attaching importance to the opinions of the child in all matters that would affect its life. Therefore the question of conflict does not arise. Even in a situation where the child's opinion is contrary to the best course of action, the opinion has to be heard and given due weightage. This would not prove harmful as the right to participation is a right of the child to have his or her opinion heard but it definitely is not a right to take the final decision. It would merely contribute to the determination of the best interest of that child. The Indian efforts at integrating the best interest of the child have been numerous but not streamlined. This is primarily due to the lack of an overarching child rights legislation and a national body to oversee its enforcement. However there have been significant steps taken in the areas of adoption, guardianship and juvenile justice. The Juvenile Justice Act, 2000 is an excellent means of serving the best interests of underprivileged and children who are at conflict with the law. The judiciary too has accorded paramountcy to the interests of the child when deciding matters with regard to adoption and custody. Finally the problems caused by the cultural leniency towards adults in indian culture in terms of the treatment that they mete out to children, causes problems at three levels. It creates hurdles for the foundation of the right to participation due to the harshness with which children with independent opinions are treated with. Second it blocks the right itself due to the assumption of the adult's supreme authority over the child. Thirdly it makes enforcement difficult as the enforcement authorities themselves have the mindset that children are not to be taken seriously! The solution to these problems lies in creating awareness, enacting effective legislation and instituting enforcement bodies that are effective.