Juvenile Justice & Child Protection: Case of India

The issues related to children’s welfare and juvenile justice came to the fore during 80s and 90s, when the international community recognized the need of taking concrete action in protecting child rights and stops their abuse and exploitation. United Nations formulated Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) in 1985. General Assembly of the United Nations adopted the Convention on Rights of the Child in 1989. UN again adopted Rules for the Protection of Juveniles Deprived of their Liberty in 1990. In fact way back in the year1979, UN observed International Year of Child. A World Summit on Child was also convened in 1990. At the level of SAARC the issue of child rights was duly recognized and the member countries have devoted the decade of 1990s towards girl child. These international developments triggered action at the domestic level as well. Various governments enacted special legislation and adopted policy measures for the protection of child rights in their domestic jurisdiction.

Government of India had earlier enacted Juvenile Justice Act in 1986, which it amended by a new legislation Juvenile Justice (Care and Protection of Children) Act, 2000 to make its standards match with internationally recognized standards. However, government lacks capacity to implement these legislative instruments to their full potential, which can be easily seen when children are the most suffered lot in society and can be commonly seen begging on streets or engaged in child labour in India. It is estimated by independent agencies that around 50 million children are working as child labourers in India. Mostly children are grossly abused and exploited all over the country for commercial and personal benefits. In any societal set-up, civil society has a crucial role to play towards its overall development. In a vast country like India, the government alone is insufficient to appropriately fulfill its comprehensive welfare role. As such, the role of NGOs hardly needs to be emphasized. NGOs across the world have fairly performed their role in protecting children from exploitation and rehabilitating/reintegrating them into society, by cooperating with government agencies at the state and national level. In India too, several NGOs are operating for the cause of children. Their role is highly appreciative and need to be appropriately recognized. Child labour is a peculiar problem in almost every society. Indian Constitution and Special laws provide measures for the child rights protection. However, our enforcement machinery needs to be geared-up to face the challenges posed by this inhuman social evil, which bring bad-image for the second-fastest growing economy in the world. It should be the combined efforts of the government, civil society groups and the people at large to bring about transformation in our society, and make it child friendly in the best possible manner.

Commission for Protection of Child Rights- A Welcome Step

India ratified the United Nations Child Rights Convention on 11 December 1992, and the Commissions for Protection of Child Rights Act, 2005 was passed in 2006 as one of the necessary steps to protect the rights of the children in the country. The National Commission for Protection of Child Rights (NCPCR) was constituted in 2007. The Act also provides for setting up of state commissions for protection of children as also children's courts for providing speedy trial of offences against children and violation of child rights. The National/State Commission consists of seven members including a Chairperson and six members, of which at least two need to be women. The chairperson has to be a person of eminence who has done outstanding work for promoting the welfare of children. The members, out of whom at least two shall be women, will be appointed from among persons of eminence and experience in the fields of education, child health care or welfare, juvenile justice, elimination of child labour, child psychology or sociology and laws relating to children, the official said.

The Act empowers the State Government to notify at least a court in the State or a Court of Sessions in each district as a Children’s Court, with concurrence of the Chief Justice of the concerned High Court. For every Children’s Court, the State Government is required to appoint a Public Prosecutor or appoint an advocate who has been in practice for not less than seven years as the Special Public Prosecutor. However, various state governments are yet to implement the provisions of this Act, which must get operational without delay. A well planned rescue and rehabilitation strategy should be evolved by these statutory commissions to provide shelter and compulsory education to all children below the age of fourteen years.

The functions and powers of the National Commission are as following:

• Examine and review the legal safeguards provided by or under any law for the protection of child rights and recommend measures for their effective implementation

• Prepare and present annual and periodic reports upon the working of these safeguards

• Inquire into violation of child rights and recommend initiation of proceedings in such cases

• Undertake periodic review of policies, programmes and other activities related to child rights in reference to the treaties and other international instruments

•Spread awareness about child rights among various sections of society

•Examine and recommend appropriate remedial measures for all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence/riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution

•Undertake and promote research in the field of child rights

•Inspect institutions meant for juvenile/children

•Inquire into complaints of deprivation and violation of child rights, non-implementation of laws and non-compliance policy decisions, guidelines or instructions

•Undertake other necessary functions for the promotion of child rights. The Commission has the power of a civil court and all criminal cases brought to the same has to be forwarded to a concerned Magistrate who has jurisdiction to try the same.

Biofuels and Food Security Concerns!*

The increasing use of food and feed crops for fuel is altering the fundamental economic dynamics that have governed global agricultural markets for the past century. Investments in crop-based biofuels production are rising steadily as countries seek substitutes for high-priced petroleum products, GHG-emitting fossil fuels, and energy supplies originating from politically unstable countries.

At the global level, the current interest in biofuels is mainly seen in the context of industrial production operating within the framework of an international market governed by globalization rules. Two trends have emerged from the biofuels scene. On the one hand, fossil fuel-importing nations who are seeking an immediate solution to reduce their growing energy expenditures, and on the other hand, countries which are currently-or are interested in becoming-biofuels exporters, are attempting to position themselves strategically within the global energy market. This reflects the great hope for biofuels as key in overcoming the energy crisis, promoting alternative energy, and reducing global warming and its consequences. The industrial scale production of biofuels practiced to date has focused primarily on the conversion of crops such as sugarcane, corn, soyabean etc. as a fuel base. This first generation of biofuels remains contested and is currently the source of a heated debate on the threat that energy security poses to food security.

The former Finance Minister of India, Mr. Chidambaram, while addressing an academic gathering in Singapore observed (2008), that in a ‘climate of food insecurity’ it is ‘outrageous’ that developed countries are turning food crops into biofuels. He said that countries like US were doing so (it is expected that 20% of the corn produced in US goes to making biofuels) while the world’s poor are struggling with surging food prices; and using corn and other crops for fuel is a sign of ‘lopsided priorities’. This reflects the growing divisions between nations on the issue of food security implications of biofuels crops.

*Selected excerpts from one of my earlier Articles!

Tapping North-East Potential for India's enhanced Trade Relations with ASEAN

India's North-East, also known as the land of the seven sisters, comprises the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. All the North-Eastern Indian States have distinct advantages, and provide immense economic and trade opportunities to domestic and international corporates. The region shares borders with China in the north, Bangladesh in the South-West, Bhutan in the North-West and Myanmar in the East. This makes the North-East a prospective hub of international trade and commerce. Blessed with biodiversity, huge hydro-energy potential, oil and gas, coal, limestone, forest wealth, fruits and vegetables, flowers, herbs and aromatic plants, rare and rich flora and fauna, Northeast India has all the potential to transform into a commercial hub and tourist paradise. As such, it offers huge opportunities in sectors of strategic importance like energy and infrastructure; oil, natural gas and hydrocarbons; agro, food processing and horticulture; floriculture; IT and ITeS; cement; defense, etc. Despite all these advantages, this region is a huge untapped, emerging market, which should prove to be of interest to large domestic and international investors.

Unlike the rest of India, North-East India has an added demographic advantage, in the sense that it account for7.8 per cent of the country’s total land space but has a population of 3.8 crore, which makes it approximately 3.73 per cent of the country’s population. The region is known for its ethnic, linguistic, cultural, religious and physiographical diversity. North East India Tourism is another potential high growth industry. North-East India is often described as the Gateway to South-East Asia. India’s ‘Look East’ Policy aims at transforming the North-East into a dynamic center of a thriving and integrated economic space, linking the two high-potential regions with a network of highways, railways, pipelines, and transmission lines crisscrossing the region. The huge complementarity arising out of India’s ‘Look East’ Policy and our South-East Asia focus, and the ‘Look West’ Policy of South-East Asian nations like Thailand, gives rise to immense opportunities for India and ASEAN countries to develop their trade and investment relations, using the North-East as a primary focal point.

However, as pointed earlier, despite these great advantages, the North-East has not grown at par with the rest of the country, and the region’s potential has not been tapped properly. Various significant initiatives have been taken by the Government of India to promote economic growth, tourism and development in the North-East region in the recent past. The crucial role played by the infrastructure-related issues like shortage of power generation capacity, over-dependence on hydro-power, absence of proper road connectivity, etc., are crucial for the overall development of the region to its true potential.

If given proper implementation, Indian government’s North East strategy could result in making North East an important site for India’s enhanced trade relations with ASEAN, which both the blocs are aiming under their much-awaited Free Trade Agreement (FTA). India and ASEAN are at the crucial moment of signing the Free Trade Agreement (FTA) at the postponed ASEAN Summit meeting in Bangkok in August 2009, after resolving all their contentious issues.

Importance of Corporate Governance in the Globalised World

Corporate governance is a term which broadly refers to the rules, processes, or laws by which businesses are operated, regulated and controlled. Corporate governance encompasses internal factors, defined by the officers, stockholders or constitution of a corporation, as well as external factors such as consumer groups, clients and government regulations.

The rapidly expanding contours of globalization and the growing diversity of investor ownership structures, financial products and management methods together with the ongoing differences in how societies and economies are organized and managed, hinder the formulation of a generally accepted corporate governance system worldwide. Even so, international investors and expanding capital markets are gradually bringing about a degree of convergence. Flexibility, transparency and accountability, for example, are by now generally recognized as crucial corporate governance features. However, the political, economic, legal and social contexts still vary from country to country or region to region.

Good corporate governance contributes to the sustainable economic development by improving the performance and competitiveness of the companies and increasing their access to outside sources of capital. Good corporate governance increases a company’s access to all types of external finance: domestic and international, public and private. In addition, firms seeking to access finance from international sources must improve governance in order to meet more stringent listing requirements. Well governed companies receive higher market valuations than those that are poorly governed. Better governance structures and processes improve decision making within all types of companies and enhance their long-term prosperity.

Corporate governance moulds the development of a nation’s financial market as it provides the framework for harmony between investors and firms. It provides the speed, amount and method in which investors will receive adequate returns on their investments. Moreover, corporate governance styles and efficiency in management decision-making determine to a large degree the extent to which firms have access to outside financing.

Globalisation involves a rapid movement of the four elements of economy across the national borders. These are physical capital in terms of plant and machinery, financial capital as invested in capital markets, technology and labour. In a situation like this, when investment takes place from one country to another, the investor want to ensure that the management of the companies they invests in, are competent and professional, and also that these companies do not indulge in any unethical and illegal acts, which ultimately might harm their long-term interest and the enterprise itself.

Since the corporations are the major economic agents and their activities determine the level of output and growth of the economy and they have the freedom to act according to the often volatile market trends, they must conduct themselves in a manner that produces synergy for all other agents in the economy. This need would not have been more urgent than today, when the world is passing through a severe financial crisis, impacting and putting halts to the global economic output, and affecting almost every nation in one way or the other.

Of late, there has been increasing pressure from institutional investors and securities analysts for much greater disclosure of financial data and corporate strategy, plus improvements in shareholder value (e.g. buybacks, dividends) and the emergence of shareholder engagement and activism has put a greater stress on corporate governance of companies. As such, corporate governance needs to be re-formulated in resonance with emerging needs for greater engagement being sought from corporate sector in the sustainable development of a country. It has to be engineered towards larger involvement through effective and purposeful engagement by the corporate sector to create and environment, both within and outside their domain of work and ethics. New corporate governance strategies should be designed as partnerships for not only financial profits, but also social and environmental profits.

Competition Law & Policy: Indian Context

Competition Law and Policy relates to matters of competition and competitiveness so that the goods and services are sold at competitive prices and that the consumers have choice as to products they wish to purchase. Competition would also be a matter of larger application—that of overall governance and development of economies, that of better regional and global imbalances in trade and development. Competition law also has a role to address market distortions and barriers to free trade. These distortions and barriers may be caused by geographical limitations, natural monopolies, and weak distribution networks, cartels, entry barriers, predatory pricing and oligopolies. Businesses thrive on competition, which is the critical element of the dynamic economies. The relevance of competition in the business environment also paves the way for fair business practices. It is said that in the globalization era, competition is necessary for developing countries to obtain the benefits promised by trade liberalization and privatization. However, due to the different stages of economic development in different countries, there is no one-standard approach in determining the type of competition laws or policies that may prove beneficial to all countries.

* Excerpts from my Article sent for publication in a reputed Policy magagine in India.

Child Rights Advocacy in India

In the rights-based approach, children are viewed as citizens, entitled to all that has been promised to them under the Constitution of India and the United Nations Child Rights Convention (CRC), rather than as objects of sympathy or charity. Children are no more residual categories who are just part of the families or an appendage to the adults. They are young citizens with their own rights which are recognized by the global community. The UN Convention on children's rights adopted by the general assembly of United Nations in November 1989 is both a culmination of numerous efforts in the past and a new beginning of the era of children's rights. The Convention on the Rights of the Child (CRC) lays down the principles of non discrimination in the best interest of the child along with the common standards for the various rights of children. It takes into account the different cultural, social, economic and political realities in which children live. India ratified the Convention on the 11th of December, 1992. Yet, the rights granted to the children under the Convention are far from the reality in India. Children are no more residual categories who are just part of the families or an appendage to the adults. They are young citizens with their own rights which are recognized by the global community. Children's right to participation is upheld by the Convention on the Rights of the Child and right to participation implies a right to expression, right to be heard, right for their opinion to be seriously considered in matters relating to them. They are no more just victims of violations but are potential liberators of themselves. In this perspective, children's right to association and making their voices heard becomes important. They must have right to express their opinion on the prevailing situation and spell out the new situation which they would visualize. They must have a right to participate in the process of changes and creation of new structures and society for themselves. It is no more sufficient to work for children. It is absolutely necessary to work with them in the search and struggle for a better world.

'Nitharis’ will happen until child rights become the focus of national policy. Lasting change for children can only occur when child rights in their entirety become the focus of national policy, and proper decision-making replaces the platitudes mouthed for short-term political gain. Caste, gender and communalism, in particular, are at the root of most of the deprivation we encounter in our work. The feudal nexus between the wealthy and powerful and the State in all its forms prevents real change from becoming a reality. Overall, the child’s right to survival depends on many factors in Indian Society, viz. maternal health is a key determinant of infant health, female foeticide and infanticide, malnutrition, and the availability and quality of healthcare services. The government services offered under the Integrated Child Development Scheme (ICDS) and Primary Healthcare Centres (PHCs) are in a poor state.

There have been many initiatives from different quarters like the civil society, national governments and international organizations towards recognizing the rights of children. Much of these initiatives are also being related to the struggle of different sections of people for defending particular aspects of human rights within their own context. The Government of India’s approach to children is piecemeal - knee-jerk responses and window-dressing rather than well thought-out strategies. Thus, while a commission is set up and a charter drafted, the policy framework of the early-1970s that defines all decision-making about and for children has never even been reviewed. The present conception of the National Commission for Protection of Child Rights (NCPCR) is flawed. In its current form, it serves to be one more government agency, struggling for space and funds on behalf of children. The commission has to report to the central government, not Parliament. This makes it vulnerable to becoming a puppet of ruling governments and taking stances based on populism rather than principles!

*Excerpts from my Paper presented at the International Seminar on Human Rights: Reporting and Tools for Effective Actions held in Mumbai, India during April 29 - May 1, 2009.

India Divided- Major Stumbling Blocs for India’s Rapid Development Path

Narrow casteism, destructive communalism, regressive communism, terrorism and naxalism, religious, region and ethical/racial divide, in my opinion, constitute major stumbling blocs for India’s rapid development path, towards becoming a developed and modern nation in the 21^st Century. In all, it is the divided Indian society on narrow socio-political, cultural and language or other similar narrow divisions, the key burning issue facing India's development today.

Illiteracy and poverty still pose a major threat in India’s development path. Thus, even after more than sixty years of our independence, the Indian society is divided into ‘India’ and ‘Bharat’. This stark disparity between ‘people’ and ‘regions’ needs to be narrowed down by proper and effective governmental policies supported by vibrant civil society actions/initiatives. Solution lies in expanding opportunities in education and employment at all levels, which should be the priority of any government, both at the centre and states. Providing basic amenities to people and creating necessary infrastructure facilities for agriculture and industry across the country should be the goal of any government, to take India forward on developmental path to be one amongst the front line states in the world.

Terrorism and Naxalism constitute a very serious threat to the security and integrity of the country, which needs to be dealt with an iron hand by adopting well thought-out policies and strategies, rather than the existing half-hearted and piecemeal approach, to completely eliminate the menace. Managing the global economic slowdown, particularly its adverse effects on employment opportunities in the country is an important issue facing the country today. India needs a decisive government committed to the ideals of good governance, development and security with discrimination towards none. Only a unified nation, with balanced development, can forge ahead to realize its full potential. An attempt should be made to form a broad national consensus above party-lines between the important political parties of the country to effectively tackle these burning issues facing India of today.

Indian Arts and Crafts Industry: Taking Stock & Way Forward

The Indian Arts and Crafts journey so far has been enriching. It has been enriching for the country as a whole, for the arts & crafts community and for all of us as consumers of these traditional products. India’s experience, which was the first experience of evolving such an important and far-reaching programme, provided an example to many countries who emerged from colonialism into sovereign and independent countries to evolve their own programme. India was their resource and it shared its experience with them.

However, after more than fifty years of its evolution, Indian arts and crafts industry needs some soul-searching. Where are we headed? We need to examine the institutional structures and ask if this is the best method of functioning? What is the role of the government today and what should they be really doing? How valid are the overall structures and the divisions that had been made of the sector in 1954 in today’s context? Are not they superfluous expenditures which continue to be incurred by the government? How effective are the different marketing corporations and associations? Is their turnover less than one per cent of the total handled by the private sector? Should the government continue to handle these institutions or should there be an attempt made to hand it over either to the crafts associations or to the voluntary sector? For that matter, what is the role of the Crafts Council of India and other voluntary organizations? Do they provide a platform for the crafts persons? Are they performing their role of being the protectors and motivators for the sector? Are they functioning as the voice of the crafts persons?

Going forward from here needs answering these questions and finding proper solutions. The whole institutional paraphernalia related to arts and crafts industry in India needs streamlining, with incentives introduced to encourage this small and medium sector industry. This industry provides vocation and livelihood security to many marginalized sections of people in the Indian social set-up, which must be the prime object while adopting any policy and institutional changes in the country.

Judicial Activism on Environment in India*

The Indian judiciary demonstrated willingness to exercise its power whenever the political/executive organs of the state failed to discharge their constitutional obligations effectively. This willingness has been often termed as ‘judicial activism’. Around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its moribund approach and instead, charting out new horizons of social justice. This period was characterized not only by administrative and legislative activism but also judicial activism. A subset of this has been environmental activism, which has developed in India in a very major way. One of the reasons for judicial activism in specific environmental cases has been the relaxation of the rule of locus standi giving a chance to the public to approach the Court under Articles 32 and 226 of the Indian Constitution. Also, the recognition of environmental rights as a ‘fundamental right’ under Article 21 (Right to Life) of the Indian Constitution has given a constitutional sanctity to the 'right to enjoy a clean and healthy environment'.
The development of Indian environmental law has happened, for the most part, over the last three decades, with a significant level of polarization around the latter two decades of this period.
The development of the law in this area has seen a considerable share of initiative by the Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the High Courts of the States. Particularly, within the last two decades, India, has not only enacted specific legislation on environmental protection but has also virtually created a new 'fundamental right to a clean and healthy environment' in the Constitution. Prima facie the forms and methods adopted in the Indian context appear to be very similar to those in other common law systems, but Indian environmental jurisprudence brings out the unique characteristics of a new legal order, which has gradually been established in India. The distinguishing nature of this jurisprudence is the emerging Indian environmental jurisprudence that bears testimony to the activist role of the Indian judiciary, which has had a significant impact in many areas other than environmental law. In short, the development of environmental jurisprudence in India manifests neo-judicial environmental model created within the constitution in post-modern public law. It accommodates ideas of various experts nationally and internationally and creates interface of these ideas within the existing legal structure. The areas in the Constitution where the judiciary has innovated techniques to further the cause of environment are: directive principle of state policy and fundamental duties; fundamental rights, jurisdiction of Supreme Court and the High Courts and adoption of various international principles and creation of domestic principles to further the international obligation towards the environment.

*This Artcile here represents the Introduction of my earlier Article, with same title, published in the Survey of Social Sciences.

International Legal Aspects of Eco-Labelling in the context of North-South division on International Trade Rules*

In the contemporary world, the inter-linkages between trade and environment have become an important contentious issue at various fora in the development discourse. The debate on the ‘trade and environment linkage’ has been dominated by two principal concerns of market access and product competitiveness. In the international politico-economic interface, the debate has centered on the WTO (World Trade Organization) system, which is primarily a trade body but has come under attack from the environmental lobby (and by the developed countries) for ignoring the environmental concerns. Developing countries in particular, do not want WTO to play any role in addressing the environmental concerns as they feel that WTO's in-built provisions on trade sanctions in case of non-compliance (which in environmental context can be protection of dolphins, or sustainable production processes) has the potential of being a tool for arm twisting. In general, the linkage between trade and environment is regarded by them as another form of conditionality (green protectionism), a means to raise protective barriers and deny them market access. Amongst various trade measures for environmental purposes, ‘eco-labelling’ has turned out to be a very effective means for promoting environmental friendly products, but can be a non-tariff barrier to trade. The North accuses the South for eco-dumping and the South accuses the North of pursuing eco-imperialism or green imperialism. At present there are about 22 eco-labelling programs most of which have originated in a developed country and are emerging as a de-jure requirements and may involve additional costs and difficulties.

Developing countries hold that, since they do not have access to adequate resources to adopt patented environmental-friendly technology; the balance is tilted against them. This article analyses the international legal framework applicable to eco-labelling schemes with a view to finding out the difficulties (both procedural and substantive) encountered by the developing countries in adopting and implementing them in their trade policy measures and offers some suggestions to level the playing field in order to root out the legitimate apprehensions (with regard to these schemes) of the developing country partners in the world trade.

*This is the Abstract of my Article published in the Indian Journal of International Law, Vol. 48 (1) 2008, pp. 45-74.

India-Japan Relations

In the fast emerging New World order, India and Japan are viewing each other as natural and capable partners to complement each others needs and aspirations. Being the two mature and dynamic democracies in Asia, the two countries’ mutual partnership would contribute to regional prosperity and stability. The partnership between these two important countries is absolutely essential for greater economic development and stability of the whole Asia. There exist varied instances of common ground and complimentarity between India and Japan in the contemporary world realties.

State's Apathy towards Missing Children

India is a classic case where often the basic human rights of poor citizens are thrown into air and disregarded by the State authorities. Nobody could forget the gruesome rapes/mutilation and barbaric killings of innocent children by the M.S. Pandher & his domestic-aide Surndra Koli, who were recently sentenced to death by the Special CBI Court putting their heinous crimes into the "rarest of rare" category, deserving capital punishment. As still the horrific memories of Nithari case continue to terrify people, the recent media reports about the missing children of poor/marginalized families and daily-wage earners in the country's capital city Delhi have shocked and jolted the conscience of the people of India once again. Such terrible incidents constitute a shame and blot on any nation's face, more so, as India is ranked as the second fastest growing economy in the world. What is more worrisome is their occurrence at repeated intervals!

Often there are reports of missing children in different parts of the country. Many are never found. Many of the kidnappings/abductions end tragically in rape, assault and death. A missing child is a parent's worst nightmare. Over 34,000 children have gone missing in Delhi in the last 20 years (National Crime Records Bureau data). In recent years many children in Delhi have been declared untraceable by the Crime Branch's Missing Persons Squad.

It is a misfortune of these innocent children that despite of the guarantees and rights provided under the Constitutional provisions, specific laws and a series of judicial pronouncement and directives, the incidents of missing children are becoming a day-to-day phenomenon.

There lies a clear gap between social progress based on values, and economic growth. This mismatch calls for a balanced social engineering on a major scale based on values, combined with the current state of economic growth, so that every citizen could be able to get one's share of the fruits, the economic growth has brought about to the nation as a whole.