By Prabhat Singh* & Yashendra**
“It is not the consciousness of men that determines their being, but, on the contrary, their social being that determines their consciousness”
- Karl Marx
Introduction
'Street children', a heterogeneous group, find their escapism from hunger, abuse, neglect, and despection on the streets as it is a human tendency to be free from any shackles which may affect the mental as well as physical ability. The definition of 'street children' is not uniform and depends upon various conditions: socioeconomic, political, cultural, etc. One may find various definitions in national as well as international law. According to the United Nations, any boy or girl for whom the street has become his or her habitual abode and/or source of livelihood and who is inadequately protected, supervised, or directed by responsible adults is a street child. On the other hand, UNICEF divides ‘street children’ into three categories: children on streets, children of the street, and abandoned children.
In the Indian context, 'street and working children’ finds its definition in Juvenile Justice (Care and Protection of Children) Rules, 2007 (“the Act”) wherein Section 2(p) enunciates, “children without ostensible means of livelihood, care, protection, and support by the provisions laid down under clause (d)(1) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000." Among various definitions, it can be observed that the main criteria for categorizing street children are the inadequacy of protection and livelihood. Thus, catering vulnerability among children should be at the forefront in any policy covering them.
Talking about the pandemic, it can very well be understood that their vulnerability has increased dramatically due to the constant fear of contracting COVID-19 in the absence of safe livelihood. Moreover, it is no respecter of class or caste, neither does it look at the age of the victim. In India, though there is no official estimate of street children (0-18 years age group), according to the 2011 census there are 1.77 million homeless people out of which 0.27 are children. Thus, it is the prime responsibility of the state to protect the rights of street children from contracting the deadly virus for the repercussions of the virus have been experienced more by subaltern due to disparate access to essential services.
In this article, the author shall discuss in the first part various rights conferred to children in international conventions with an emphasis on General Comment Number 21 while laying a nexus of those rights with the theme of International Day for Street Children 2021- Access to essential services- from the Indian perspective. The authors shall also examine, in the second part, the right to services focusing on medical and, in the third part, access to food and shelter accessibility in the backdrop of the ongoing global pandemic. At the outset, it is clarified that the authors shall refer to the definition of 'street children' as per the Act.
UN Convention on the Rights of Child and its Obligations
The United Nations Convention on the Rights of Child (“UNCRC”) is the human rights treaty setting out the rights of children and obligation upon the state to fulfil them. The general principles of the UNCRC underpinning the broad ideas lay the foundation of various provisions. These principles are Non-discrimination(Article 2), best interests(Article 3), right to survive and develop(Article 6), and lastly, the right to representation (Article 12) before policy formulation.
Talking about Street children, due to their uncertain status in society, they often face discrimination direct as well as indirect. The effect of direct discrimination can be in the form of a lack of appropriate policy approach which is a question of the hour due to disparity in policy regarding street children. Talking about the best interests of street children, the current policy framework (Standard Operating Procedures) does not address vulnerabilities even when their situation has been exacerbated by the immobility amid fear of contracting COVID-19. Moreover, Article 3(1) of UNCRC posing a positive obligation on the states to respect the human rights of children implies that every decision affecting them should consider the diverse degree of vulnerability depending upon the unique circumstances. Amid fear of contracting the virus, this could be ensured by giving proper representation to their voices by employing a bottom-up model with support from concerned NGOs.
Since Article 6 of UNCRC necessitates the government to give proper attention to the behaviours and lifestyles to understand the ground realities of children in the street, the states are further obliged to utilize the resources at their disposal to safeguard this interest and prevent the deaths of young ones.
Access to Medical Services
The Apex Court in Amarnath Shrine, In re took a magnanimous attitude when it noted that the expression ‘life’ is not just a mere connotation of animal existence, it is beyond that. Thus, the expression, the court noted, should not be interpreted narrowly; rather it extends to the economic, social and cultural rights of everyone. Deliberating upon the above expression, the Apex Court in Sunil Batra v Delhi Administration expressly observed that the right to lead a healthy life is well covered under the right to life. Further, in a later case, it was emphasized that the preservation of life is a paramount obligation.
With the inoculation drive taking place, due to the non-availability of resources such as mobile and proper connection for registering and booking a slot for inoculation, currently the drive is excluding several underprivileged denizens. It is like adding salt to the injury of street children by making essential medical services impossible because of the unavailability of resources and the high prices of life-saving drugs. Though a few state governments made a prompt response to make these drugs available for free of cost to the economically weaker section, a similar decision should be made throughout the country.
Access to Food and Shelter
The Apex Court in its recent judgment of In Re: Problems And Miseries of Migrant Labourersopined that for the promotion of the welfare of the people and to secure the economic and social justice for the marginalized section, the Indian Constitution enjoins the control as well as ownership of the material resources to the community to minimize inequalities in income and eliminate inequalities in status. The court further observed that every human being has a right to live a life with dignity with access to the bare necessities of life and the onus is upon all the States and governments to provide food security to the impoverished persons.
With various judgments citing the importance of food, the country has been experiencing deaths due to starvation for a long period. With no actual census of deaths due to starvation during covid, there are a few incidents where the death was caused due to non-availability of this ‘bare necessity’.
In the context of street children, it is clear from the definition that they lack proper shelter and depend on the streets for their survival. With restrictions posed due to lockdown, their earning capability is also exacerbated due to immobility. Further, the shelter does not mean mere protection of life and limb, the Apex court explained in Chameli Singh v. State of Uttar Pradesh, but a home that provides opportunities to grow physically, mentally, intellectually, and spiritually. In the ongoing pandemic, even the streets are not a safe place for the protection of life. There is a constant threat of contracting COVID-19 which in absence of access to medical services can lead to death.
Thus, it is amply clear from the above discussion that the UNCRC and the judicial precedents impose obligations on states to take every precaution ensuring that the COVID-19 does not affect the street children. In furtherance of these obligations, it is advised that the government does not neglect the street children in the vaccination drive and protect their life by providing shelter.
Suggestions and Conclusion
A report by the United Nations noted that children are not the face of this pandemic. But they risk being among its biggest victims. The street children without the privilege of shelter and livelihood are at the receiving end of this pandemic. Despite some special human rights in addition to rights enshrined in the constitution, there is a lack of proper approach by the executives as well as the legislature. Even the access to basic necessities has become a challenge for them in complete clampdown against the deadly virus. Apropos to that, it is recommended to form proper SOPs which shall cater to their special needs.
It is high time for citizenry to help and look out for each other as the officials and policies may not efficiently reach the ground level for it is an abyss where one can find a light with the help of fellow human beings. As the Latin motto goes, "Non nobis solum nati sumus”, which means “not for ourselves are we born alone”. The derelict needs support from society as a whole and we must try to achieve that.
* / ** 3rd Year, B.A., LL.B. (Hons.) students at National Law University, Delhi
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of the Child Rights Centre.)