This Article is authored by Advocate Anil Malhotra.
THE ISSUE
After India acceded to the United Nations Convention on the Rights of the Child in 1992, the Commission for Protection of Child Rights Act, 2005 (CPCRA), was enacted to provide for the Constitution of a National Commission and State Commissions for Protection of Child Rights (NCPCR) and Children’s Courts for providing speedy trial of offences against children or for violation of Child Rights. India reportedly with the largest child population in the world, unfortunately has the weakest machinery for actual implementation of Child Rights. The law exists but not the mandate to implement it. The NCPCR is without a Chairperson or Members since October 2014. State Commission for Protection of Child Rights (SCPCR) in Haryana also has no Chairperson or any member currently. Punjab too, lacks a Chairperson or a working quorum of qualified members. Acute apathy, total insensitivity and complete lack of consciouness towards child rights, makes violations galore. Trafficking of children, sexual abuse and other henious offences against children go unacknowledged and without redressal. Children suffer in silence
THE PROBLEM
Whilst the Government lauds itself over “Betti Bacho, Betti Padhao” campaign and rolls out numbers of children united with parents in operation “Muskan”, we have missed the bus. When the NCPCR and SCPCRs have a statutory mandate to monitor and implement critical child rights laws like the Protection of Children from Sexual Offences Act, 2012 (POCSO) and The Right of Children to Free and Compulsory Education Act, 2009 (RTE), it seems misconceived for the executive to assign statutory functions to others whilst NCPCR and SCPCRs remain defunct. The National Crime Records Bureau records that over 3.25 lac children have gone missing between 2011 to 2014. Nearly 300 children go missing everyday, trafficked, abused, exploited or consigned to captivity. A missing child is not noted as an offence till murdered, raped, abused or proved to be exploited. A parody in terms and a travesty of justice to children mocks at the face. POCSO and RTE lie in slumber.
CHILD COMMISSIONS
Under the CPCRA, the NCPCR and SCPCRs are to be headed by a Chairperson of eminence who has done outstanding work for promoting the welfare of children. The remaining six members, two of which should be women are appointed by the Government from persons of eminence, ability, intergrity, standing and experience in Child Rights related issues. Their selection and constitution is left to the able hands of a three member selection committee constituted by the Government under the Chairmanship of the Minister of Women and Child Development. The process of selection is hazy and the CPCRA prescribes no procedure or guidelines of selection. The statutory functions of the NCPCR and SCPCRs extend from inquiring into complaints and taking suo moto notice of matters relating to violation, deprivation, non compliance, non implementation and infringement of child rights besides reviewing child laws, initiating proceedings for promoting child rights as also approaching Supreme Court or High Courts if the Government provides no redressal. The Commissions are vested with powers of Civil Courts in exercising such powers and can forward cases to Magistrates for criminal proceedings.
THE DILEMMA
Sadly, despite quasi judicial functions, the CPCRA is silient on appointing Chairpersons or Members with judicial training, legal expertise and experience in higher judicial echelons. The NCPCR and SCPCRs have the trapping of a Court but no judicial minds with adequate experience in the field of adjudication to man them. The sad result is obvious. The salutory duties vested by law are a dead letter. Those who are or may be appointed in the Commissions are ill-equipped with letters of law. At times, those vested with such powers on political nominations sound the death knell of Child Rights. CPCRA, the letter of law in the statute book needs amendments failing which the constitutional guarantee of rights of children, equality before law, free and compulsory primary education, prohibition of trafficking and forced labour, protection from sexual offences and trafficking will be an optical illusion.
THE SOLUTION
Instead of announcing schemes, benefits and measures for children, the Governments should make a fresh start in constituting the NCPCR/SCPCRs in their respective jurisdictions with qualified, devoted, dedicated and sensitised apolitical members with acumen, training and experience of child rights. The Parliament ought to seriously look at amending the CPCRA for vesting the powers of a Chairperson to incumbents with judicial expertise, legal training and experience in seeking practical implementation of child rights by virtue of such appointees having actually handled adjudication by manning a superior Court. The judicial input is extremely essential for exercising quasi judicial functions which may at times defy comprehension to lay persons. The sooner this Herculaen exercise is started, the better. The solution lies within. Missing the target is fatal. Those who need to do this ought not to wait any longer. The child cannot suffer any more.