The Telegraph
Since 1st March, 1999
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- Who is a child in the eyes of the law in India'

This is the third and last of the three notes I had wanted to share with you while speculating on what the framers of our Constitution had wanted to convey through (what was to become) Article 45. It was a directive to the state to 'endeavour to provide free and compulsory education to all children up to the age of fourteen years'. The first note carried the story of two amendments moved in the Constituent Assembly which were followed by replies from the drafting committee chairman, B.R. Ambedkar.

In the second note, I raised two questions that seemed to be involved in that short but notable exchange. The first question: Was it primary education we were talking about' Ambedkar's answer: No, it was education. This answer, I thought, invited one to re-examine the iron-frame of the one-to-one relationship that had been postulated between the age groups 5 to 14 and classes I to VIII. I pleaded for flexibility in this relationship to suit different interests, abilities and the many prevailing social constraints.

Let me discuss today the second question: Why 14 years' The framers of the Constitution thought we had to define, at least for our times (then around 1950), an upper age limit for Indian childhood. They fixed it at 14 years because, Ambedkar explained, the fundamental- rights chapter in the Constitution was going to set down 14 years as the age upto which no one could be employed in the work force; child labour was henceforth banned.

The framers of the Constitution decided that since this fundamental right in a way became a matter of compulsion for every child, the state had now the moral duty to provide free and compulsory education to all until the upper age-limit was crossed. After that point, the child could safely and legitimately enter the world of work ' if she wished to.

Looking back, and looking around the world, public acceptance in India of so low an age as the upper limit of childhood might well appear very odd today. But then, times have changed since 1950 in more ways than one. For one thing, rather grim to recall (though it would seem to the survivors of my own generation only the other day), the average life expectancy at birth of Indian men and women in 1950 stood at just around 32 years! The state trying to provide free education upto the age of 14 years for all children then was making a more substantial promise over a lifetime than what it would look like 55 years later with the average life expectancy going well beyond 60. And more things have changed, more promises made since. People have learnt to articulate their social rights and India has also played an active and progressive role in the United Nations and other international bodies in the business of protecting these rights. Take the rights of the girl child, for example.

The Child Marriage Restraint Act of 1929 (the famous but largely circumspect and therefore ineffective Sarda Act) had retained the lower limit of the marriageable age of a girl child at 14 years until 1949. Even that was considered by many conservative leaders of our society as too high! In 1950, this could be raised only marginally, after some hue and cry, from 14 to 15.

Being an optimist, I like to believe that the implicit social perceptions have changed in this area. Only a few days back, I was heartened by a large and attractively laid out notice issued by the ministry of human resource development in all the national newspapers of India that might have caught your eyes too. It reminded the people of the evils of child marriage. It also reminded them of the minimum marriageable age of the girl child. It is 18 years today.

Similarly, ideas were changing in the sphere of juvenile justice that, till the other day (I myself slip into the practice from time to time), was called juvenile delinquency. The definition of a child as given by the Juvenile Justice (Care and Protection of Children) Act 2000 is as follows: ' 'juvenile' or 'child' means a person who has not completed eighteenth year of age'. Although, like most people, I am frightened by legal language, I actually liked the rightfully pompous opening words of the act: 'WHEREAS the Constitution has, in several provisions, including clause (3) of article 15, clauses (e) and (f) of article 39, articles 45 and 47, imposed on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected;

'AND WHEREAS, the General Assembly of the United Nations has adopted the Convention on the Rights of the Child on the 20th November, 1989;

'AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of standards to be adhered to by all State parties in securing the best interests of the child;

'AND WHEREAS, the Government of India has ratified the Convention on the 11th December, 1992.'

Actually this Juvenile Justice Act 2000 is only an amended version of the 1996 act. But it has responded probably more wholeheartedly to the intent of Article 45 and the compulsions in the contemporary international scenario. Obviously, in the juvenile delinquency laws that existed earlier in India there was commendable compassion and concern for the child, but that was yesterday, when the concept of the child's rights was still often beyond one's vision.

I am tempted to end here by adding that at least one Central Advisory Board of Education committee (on Girls' Education and the Common School System, chaired by Tarun Gogoi) has spoken in favour of change. It has recognized 'the importance of the basic question regarding the sustainability of the present Indian practice of restricting the definition of the 'child' to 0 to 14 years of age.' It also pointed out that India had actively supported and was a signatory to the declaration of the United Nations convention on the rights of the child.

The same signatories had used the definition of the 'child' to include upto 18 years of age. This is already the accepted definition in many laws in our own country that relate to marriage, juvenile justice, citizenship and other legislation. The committee wanted the contradiction in policy to end. There can be no ground for not raising the upper age limit in the definition of the child to 18 years in the education sector, except the fear that the cost may prove too high, since we are talking about free and compulsory education for all children. I don't think we have an option in the matter.

But I may add that the fear is somewhat misplaced. We have already worked out the additional monetary cost of education upto the age of 14 years. It will keep the total cost of education comfortably within five per cent of the GDP. Now the total stands at less than even four per cent. If we raise the age limit from 14 to 18 years the cost will increase but much less than proportionately ' I will not go into the details here. And we will still make do, given a normal rate of growth and improving tax governance, with just a little over the promised six per cent of the GDP, the time starting after all systems get going. Nobody in his senses would want to deny this to our children.

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