‘Sculpting Rights: Essays in honour of Ossie Fernandes’

1. SCULPTING
E s s a y s i n h o n o u r o f
OSSIE FERNANDES

2. November 2016

3. Preface
ssie Fernandes was a multi-faceted person. A year has gone by
but it is still difficult to grasp the breadth of his vision or fathom
Othe depth of his involvement - much less capture the varied facets
of his personality in one slim volume. It would probably take more volumes,
and a lot more time, to do justice to them or his keen foresight and
penetrating analysis. The task is made more challenging by his penchant
for working behind the scenes and crediting everyone but himself for the
initiatives and writings.
Ossie's engagement with human rights can be traced at least to his student
days. Post college he took active part in several campaigns, till in 1993 he
founded the Human Rights Advocacy and Research Foundation, more
widely known as HRF. He served as the Director and Managing Trustee of
HRF from inception till he passed away on 3 November 2015. In the
intervening 23 years, HRF was fashioned by him to provide support to
people's struggles at the grassroots, engaging with the state at all levels and
consolidating success into law. He was equally at home in the sweat and toil
of mobilising the community, the messiness of public life, the precision to
draft constitutional amendments and navigating the nuances of state
policy.
Ossie, and by extension HRF, were engaged in a variety of human rights
issues – child rights, child labour, juvenile justice, female foeticide, custodial
justice, coastal action, Dalit rights, local government, right to information,
housing and education. His painstaking documentation and evidence
building prior to building public opinion through people's tribunals followed
by engagement with the state based on citizen's manifestos, alternate Acts,
constitutional amendments and policy briefs - all developed through
consultations with the communities, civil society organisations and other
stakeholders - are now standard operating procedure for the many human

4. rights defenders who he tutored and mentored in his own endearingly
irascible way.
That he found time for deep engagement in, and to make seminal
contribution to, each is in itself remarkable. What makes it extraordinary is
that most times his initiative, involvement and engagement took place
when the issues were off radar or deeply unpopular. He built broad-based
multi-sectoral, interdisciplinary civil society coalitions to successfully
address specific issues in the face of a passive-aggressive social
environment and a hostile state - though courts tended to agree with him.
Many of these positions are now 'mainstream' in the development sector,
with even the state grudgingly adopting some of them.
This volume is a collection of articles and reminiscences of those who were
closely associated with Ossie on the themes that were close to his heart.
The reminiscences depict a part of the richness of his contribution to
human rights discourse and practice - from his passion for research and
mentoring to his trademark modus operandi of creating large civil society
coalitions to address specific issues and legal intervention. Some are more
personal than others. The articles too weave the personal stories, but in
addition they lay out the contemporary context of his work and the
challenges that remain. It is our hope that they will inspire many more to
carry the struggle forward with the same passion and commitment.
The spirit of freedom beckons, we've travelled but part of the way
The winding path darkens, hushing what we must say
The voices of struggle sharpen, they can't wait another day
We must make it happen, and we will, come what may.
Annie Namala
Managing Trustee & Director
Human Rights Advocacy and Research Foundation

5. Ossie – Chiselling On!
- HRF Team
hink of the fighters for human rights, and a name that
instantly comes to mind is Ossie Fernandes, the Director of
Human Rights Advocacy and Research Foundation. SoTwhat were the paths Ossie took? What were his footprints? We must
trace them, if we have to walk those paths as well!!
Born in Chennai, on 16th July 1957, Ossie's entire education was in
Chennai. Due to contradictions on some issues, Ossie discontinued
his undergrad studies at Loyola College. But he later joined and got
his M.A. (Sociology) degree from Annamalai University through
correspondence course. He may not have completed his degree
studies in law, but his self study to develop broad and deep
knowledge and understanding in economics, sociology and law was
amazing. He understood the deficiencies and complications in these
three disciplines and embarked on a search to find ways to eliminate
them.
He was a deserving candidate to be approached by the people
related to these disciplines, seeking clarifications for their queries.
The magnet obviously was his sincere belief in human rights and
honest involvement in guarding it. It was thirty-five years ago, that
Ossie began treading this non-stop journey to uphold and protect
human rights.
Sculpting Rights1

6. Milestones in Ossie's Journey:
* (1979-80) – At age 22, the National Programme Secretary and
Documentation Incharge of All India Catholic University
Federation (AICUF).
* (1980-82) - Researcher and Documentationist at Development
Education Society (DEEDS).
* (1982-84) - With deep care in social problems a Field Study on
'Casteism in Protestant Churches' on behalf of CISRS was
undertaken. This was possibly the sharpening tool in fighting
for human rights.
* (1984-88) - Executive Secretary in Legal Education and Aid
Society (LEAS), the legal studies and aid wing of Christian
Institute for the Study of Religion and Society (CISRS). The
grasping point in coming to terms with various complexities of
laws and rules.
* (1988-93) - Co-ordinator, Training, Advocacy and
Campaigning on Human Rights at Legal Resources for Social
Action (LRSA), a unit of Rural Development Society (RDS). A
turning experiential point when he also brought out a private
circulation magazine 'Legal Perspective' which received wide
reception in Tamil Nadu.
* August 6, 1993 - Formed the Human Rights Advocacy and
Research Foundation (HRF) in the background of such
educational understandings and field experiences. Steered HRF
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7. as its Director and Managing Trustee till his last breath in 2015.
He chalked out a vast terrain for HRF to function in - right to
education, creating alternative policies to address the basic
issues of people, proposing appropriate laws and amendments
to laws, monitoring the enforcement of laws, social audit, critical
studies to unearth truths, campaigning among people and so
on.
* Ossie played an important role in taking various campaigns
including child rights, against child labour, right to housing, to
the national level
With the firm belief that issues including environment, eco balance,
education giving value for mother tongue are branches of human
rights, and with the clear vision that these cannot be achieved by the
efforts of individual persons or individual groups, Ossie initiated
several joint movements. He worked jointly with many
organisations which took up various issues of human rights,
accepting responsibilities such as convenor of TNCRPN, co-
convenor of CAN, co-convenor of CASSA, co-convenor of CCJAT,
co-convenor of Tamil Nadu Campaign for Right to Information,
central committee member of National Confederation for
Strengthening SC/ST (Prevention of Atrocities) Act, Tamil Nadu
representative of Right to Education Wing of NCPCR etc.
The record of the phenomenal works by the organisations which
functioned with his valuable guidance is in the reports and
documents which are great guides for those working now and in the
3 Sculpting Rights

8. future in the field of human rights. When there were incidents of
violations of human rights in Tamil Nadu, he formed fact finding
teams immediately, guided them in their enquiries and published
their findings as separate documents and through mainstream
media.
More than ten public hearings were organised by Ossie to highlight to
the Government and the public the issues of child labour, rights of
the abandoned children, protection of the HIV/AIDS affected
children, harassment in police custody, sand mafia, pollution and
police violations. These were to have profound impacts. He himself
participated as one of the jury members in more than five public
hearings.
Ossie was the man behind the curtains, responsible for launching the
National Campaign for Housing Rights. He took up the issue of the
habitation rights of downtrodden people who, with nobody to
question for them, have been and are being driven out at any time
and from any place, by the power machineries and the dominant
forces. He was instrumental in organising national and state level
discussions on this issue and played an important role in formulating
the Draft National Housing Rights Bill.
Ossie chiseled on through HRF and co-organisations with struggles
bringing a certain focus. The campaign against shrimp farms was
one such struggle. It is to be noted that the Supreme Court had
accepted the report of the fact finding team of that joint movement as
4Sculpting Rights

9. a witness document. That document became the base for the Court
to formulate guidelines to regulate shrimp farms.
If the reports of the fact finding teams, judgements of the public
hearings, the meetings and the documents from the discussions on
various laws which were all organised by Ossie's initiatives are to be
edited as books, there will be volumes of collections, huge enough to
fill up the racks of a library.
While some organisations opposed the much talked about Sethu
Samudiram Shipping Canal Project on religious lines, Ossie
approached this issue with a scientific perception. He created
awareness about how the environment, eco-balance and the
peaceful life of various marines' lives would be severely affected and
the livelihood of fishing community along the concerned coastal area
would be completely destroyed by this unscientific project. Likewise
he played a pivotal role in building strong movements against nuclear
power projects, thermal power projects, and also tidal power
projects. Apart from creating awareness, he also continued his
struggles against these projects in courts.
Ossie believed that women's rights are an inseparable part of human
rights. Especially, he insisted that it would be to the extent that the
participation of women in local governance is strengthened, that
women's rights in public sphere would be strengthened and the
performance of the local bodies would also become better. With this
commitment, Ossie did arrange for more than 200 workshops all
5 Sculpting Rights

10. over the state for the elected women of the local administrations. The
training camps arranged by him for the elected dalit representatives
are also mention-worthy. The Tamil Nadu Federation of Women
Presidents of Panchayat Government (TNFWPPG) that was formed
due to his initiatives is now playing a very important role in creating
awareness of the rights and knowledge of laws among elected
women presidents of the panchayats.
Ossie's various initiatives resulted in the documentation and
publication of reports of various surveys, position notes and
petitions on issues ranging from rights of children, abuse of child
rights, to police reforms and custodial rights, to right to information,
to decentralisation of powers for local bodies, local government is the
first government, policy sans law and law sans policy, to rights of
fishing community, coastal eco balance, CRZ notification, why
Sethu Samudiram Shipping Canal Project is unscientific - anti
environment and economically unviable, why we should oppose
Sethu Project and so on.
'India: Human Rights and Democracy - Need for a Democratic
Resurgence - A Note,' 'Course for Post-graduate Students and
Faculty Members on Human Rights,' 'Samacheer Kalvi: Equal,Free
and Compulsory Education to all Children (Upto 18 Years),' 'Book
on the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act 1994 (Amendments 2002) and
Rules & the Medical Termination of Pregnancy Act 1971,' 'Standard
Formats for Protection of Human Rights in Police Custody,'
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11. 'Reforms in Women Prisons,' 'Water (Mis) Management in Tamil
Nadu: A Case of Chennai,' 'Protection of Women from Domestic
Violence Act - 2005,' 'Gram Sabha - Challenges and Opportunities,'
'A Handbook for Children's Organisations on the Right to
Participation and Protection,' 'Enforce the Coastal Regulation Zone
Notification - 1991 in its Original Form - Repeal all Amendments
and Reject the M.S. Swaminathan Committee Report (On Coastal
Management Zone),' 'India Re-Mortgaged - Defeat WTO: The
Political Challenges for Activists,' - these are the important
documents published with the initiatives and participation of Ossie.
These documents are the bedrock for those who are working in
these fields.
Ossie didn't stop his work with just criticising and pointing out the
faults in laws, but searched for alternatives to make the laws more
people centric and he saw model laws prepared and presented by
discussing with the other organisations. Here are few examples: 'A
Policy and Legislative Framework for Enforcement of Children's
Rights and Gaining New Rights in Disaster Situations,' 'Draft Bill for
Housing Rights,' 'Alternative Law for Child Labour (Prohibition and
Regulation) Act,' 'Amendments to the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act - 1994
(Amendments 2002),' 'Alternative Rules for Juvenile Justice (Care
and Protection of Children)' Act 2006,' 'Alternative Framework for
Tamil Nadu Police Act,' 'Free, Compulsory, Quality and Equitable
Education upto 18 Years,' 'National Human Rights Commission,'
'Amendments to Scheduled Castes and Scheduled Tribes
7 Sculpting Rights

12. (Prevention of Atrocities) Act 1989,' 'Child Labour (Prohibition and
Regulation) Amendment Bill 2012’.
With the clear understanding that the rights of children are
inseparable from human rights, he strove hard to establish their
rights in schools, work spots and at all levels. His works were a warm
secure hugging for the sexually harassed children, children who were
driven to crimes, the children denied the opportunity to go to school
and the children forced to go to work at play-age. Every year he
would help poor children studying in government schools, especially
dalit children, with books and notebooks, maths equipments etc.
Ossie had great interest in journalism. Wishing to take the messages
of human rights to people through journals, he was interested in
publishing his own journals too. During his college days, along with
his friends, he started a monthly magazine 'Kelvigal' meaning
'Questions.' Suiting the name, that magazine raised important
questions on politics and society of that time.
Ossie brought out another magazine 'Verbatim' in English too, which
published study oriented articles on various social issues and existing
laws. In continuance of such journal efforts, he steered three
monthly magazines in Tamil by HRF. They are 'Manitha
Urimaigalukkaana Kuzhandhaigalin Kural' (Children's Voice for
Human Rights), 'Kaaval Needhikkaana Kural' (Voice of Custodial
Justice) and 'Ullaatchi Arasaanga Piradhinidhigalin Kural' (Voice of
Representatives of Local Government). The names of these
magazines are self-explanatory.
8Sculpting Rights

13. Ossie didn't stop just with condemning various violations of
government departments and bringing out the truths. He knocked
on the doors of the courts to get justice delivered. On behalf of HRF
and Confederations, many Public Interest Litigations were filed.
Here are some of the important issues which he took to courts in
recent times:·
Ÿ Case against Sethu Samudiram Shipping Canal Project in
Supreme Court
Ÿ Cases at the National Green Tribunal against Chettinad Power
Corporation's Thermal Project and 4,000 ultra MV Thermal
Project in Cheyyur
Ÿ Sea Erosion and Coastal Regulation Management Zonal Project
Ÿ Cases in Madras High Court to reduce the burden of text books
of children
Ÿ To form rules for Juvenile Justice (Child Care and Protection)
Amendment Act
Ÿ Custodial death of Suresh
By his nature Ossie was interested in the well-being of other people.
His views of the world and life got vastly broadened due to deep
reading. He thirstfully read writings of Karl Marx, Fredrick Engels,
Maxim Gorky, Mao, Periyar and Ambedkar and through them he
sharpened his political and social perceptions. It won't be an
exaggerated statement if we say that this deep reading did provide
9 Sculpting Rights

14. him a strong base to understand the people's problems rationally and
find solutions with a clear class outlook.
One of the important special qualities of Ossie to be mentioned is his
political care. When many voluntary organisations cut themselves
from political movements, he was very clear, whether child rights or
women's rights or right to education or right to information or
powers to local bodies or environment or protection of downtrodden
people, that individual struggles won't give results and only when
issues become political struggles, fruitful results would happen. It
was in this context that Ossie would invite political parties before
starting any agitation. He whole heartedly invited political leaders
who had real care to find solutions to the problems of people to
participate in the seminars and workshops. He saw to it, that the
human rights movement participated in the struggles called by
political parties for people's causes. He willingly sent various survey
documents and reports of fact finding teams to the leadership of
political parties. No wonder that on hearing of his sudden demise,
many political leaders came to pay their heartfelt homage to him.
History makes some people. Some people make history. Ossie
made history and he himself lived as history. For anyone who wants
to serve the society and strive to protect human rights Ossie's history
is there to read and follow. The real homage to Ossie is to take a
pledge to continue the voyage to establish full human emancipation
through paths such as those left by him.
10Sculpting Rights

15. Protecting Civil Society Space
and Defending the Defenders
- D. Gnanaprakasam
here is an alarming trend of governments around the
world, sometimes in collusion with the non-state actors,
restricting the space in which civil society operates. TheTgovernments have been mounting unprecedented attacks on the
human rights defenders in order to counter their activism against
the unjust political and economic power. This troubling trend is
also growing in India.
The United Nations Special Rapporteur on Human Rights
Defenders in his 2016 report has highlighted this trend in India.
Concern is expressed by him at the apparent increasing limitation
placed on freedom of association. H of
targeting of human rights defenders providing legal assistance to
victims of human rights violations. The Special Rapporteur also
expressed concern in relation to a trend of an increase in the risks
faced by human rights defenders working for the rights of
indigenous, tribal and rural communities, in particular in the
context of the organisation of communities in opposition to large-
scale development projects in their territories, concerned with the
negative environmental effects resulting from such projects, and
violations of land rights.
The Human Rights Defenders Alert – India (HRDA) intervened in
104 cases of human rights defenders with the National Human
Rights Commission of India (NHRC) and various United Nations
e has also noted the trend
11 Sculpting Rights

16. (UN) human rights mechanisms in 2015. During the same year,
HRDA intervened in 11 cases of murder, 60 cases of harassment,
physical assault, physical and verbal threat, and 33 cases of
arbitrary arrest and detention. Nearly 80% of these cases were of
human rights defenders working on protecting land, natural
resources, tribal rights and exposing corruption. Twenty-four
cases were those who used Right to Information (RTI)
applications and 11 cases were reprisals against journalists,
writers and socio-political thinkers.
Following her visit to India in 2011 Ms. Margaret Sekaggya, the
then UN Special Rapporteur on Human Rights Defenders said “I
was deeply disturbed by the situation of Dalit rights activists. I was
greatly impressed by their work and courage undertaking these
activities. They face death threats, summary executions, beatings
and caste-based insults in public places, and destruction of their
property and belongings … They are branded as anti-national and
placed under surveillance. Police act in collusion with dominant
castes, and complaints of violations are not registered by the
police.”
Human rights defenders are often victims of stigmatisation and
smear campaigns. These are aimed at attacking their reputation,
credibility and support within the community. Labelling them as
In the first quarter of 2016,
HRDA has intervened in more than 60 cases. HRDA noted that
there were systematic attacks on journalists, lawyers, researchers
and activists in the state of Chhattisgarh. In other parts of India,
crackdowns on student movements are becoming common,
including charging them under fabricated cases.
12Sculpting Rights

17. traitors, terrorists, foreign agents or accusing them of being violent
extremists serves to diminish public support for their work. The
Peoples Union for Civil Liberties in its recent statement in August
2016 highlighted that the repeated invocation of the anti-sedition
offence (sec. 124 A IPC) to create a public opinion that those who
demand accountability of the state and its agencies, including the
police, para military and security forces, are essentially “anti-
national”. This is to malign the human rights defenders and create
a negative public opinion against the human rights defenders to
pave way for the arbitrary actions against them.
The voices of human rights defenders of civil and political rights
activists as well as the economic, social and cultural rights are
silenced. They face numerous forms of repression. Threats are
one of the most commonly used strategies to intimidate human
rights defenders. Threats often consist of physical harm, including
death, loss of employment or other adverse consequences.
Threats of physical harm can be very effective, especially in
contexts characterised by extreme violence. Threats are also
made against family members as a means of putting pressure the
human rights defenders. Arbitrary deprivation of liberty is another
strategy commonly used against human rights defenders. An
arrest or detention is arbitrary when there is clearly no legal basis
for it; when it is the result of the legitimate exercise of rights such
as freedom of expression, association, assembly among others;
or when there is a serious violation of fair trial guarantees. Bail
pending investigation or trial are often denied. Human rights
defenders are subjected to enforced disappearances. This occurs
when a person is abducted or imprisoned by state agents or by a
13 Sculpting Rights

18. third party with the authorization, support or acquiescence of the
state, followed by a refusal to acknowledge the person's fate and
whereabouts, which place the victim outside the protection of the
law. When a person is 'disappeared', chances are high that they
may also be tortured or killed. Many human rights defenders face
physical attacks carried out by uniformed police, plain-clothes
agents, private security agents, hired thugs or others. They are
also exposed to digital attacks, involving interception of emails,
voice or other type of communication; hacking of websites, blogs,
email or social network accounts and the installation of malware or
spyware. They are also subject to physical surveillance. This may
include unknown individuals patrolling their office or home, or
asking questions to neighbours about their home, habits or
whereabouts. Raids and break-ins in the offices of human rights
defenders by law enforcement agents is another form used to
undermine their work. While they may be lawful, this can amount
to judicial harassment. One of the most commonly used strategies
to silence and intimidate human rights defenders is the use of the
judicial system. Judicial harassment can include criminal charges,
civil lawsuits or administrative proceedings. Many human rights
defenders are convicted to very long prison terms, which are often
also aimed at intimidating the broader human rights community.
Even in cases where they are eventually acquitted, judicial
harassment diverts time, energy and resources away from their
human rights work. Sometimes the human rights defenders are
prevented from attending international conferences and events.
These travel bans are used without following any legal procedure
and they are simply stopped at airports and prevented from
leaving.
14Sculpting Rights

19. By virtue of being a human rights defenders, women defy cultural
norms and face risks that are specific to their gender and
additional to those faced by men. They are more vulnerable
because their very act of speaking up and taking action against
authority is a threat to the patriarchal status quo. Sexual violence
and harassment is often perpetrated against women defenders.
Civil society organisations fearing further punitive attacks from
state self-censor or avoid areas of work deemed sensitive.
Organisations reliant on foreign funding to sustain their work face
funding crises that threaten their existence. NGO registration
restrictions are leading to their delay of authorisation to operate,
their banning or closure.
Human Rights Defenders have a key role play in upholding human
rights for all in their communities, at the state, national and global
levels. The “Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental
Freedoms”, in short “The Declaration on human rights defenders”
provides for the support and protection of human rights defenders
in the context of their work and outlines some specific duties of
States and the responsibilities of everyone with regard to
defending human right.The human rights defenders have a right:
Ÿ To seek the protection and realization of human rights at
the national and international levels;
Ÿ To conduct human rights work individually and in
association with others;
15 Sculpting Rights

20. Ÿ To form associations and non-governmental
organizations;
Ÿ To meet or assemble peacefully;
Ÿ To seek, obtain, receive and hold information relating to
human rights;
Ÿ To develop and discuss new human rights ideas and
principles and to advocate their acceptance;
Ÿ To submit to governmental bodies and agencies and
organizations concerned with public affairs criticism and
proposals for improving their functioning and to draw
attention to any aspect of their work that may impede the
realization of human rights;
Ÿ To make complaints about official policies and acts relating
to human rights and to have such complaints reviewed;
Ÿ To offer and provide professionally qualified legal
assistance or other advice and assistance in defense of
human rights;
Ÿ To attend public hearings, proceedings and trials in order
to assess their compliance with national law and
international human rights obligations;
Ÿ To unhindered access to and communication with non-
governmental and intergovernmental organizations;
Ÿ To benefit from an effective remedy;
Ÿ To the lawful exercise of the occupation or profession of
human rights defender;
Ÿ To effective protection under national law in reacting
against or opposing, through peaceful means, acts or
16Sculpting Rights

21. omissions attributable to the State that result in violations
of human rights;
Ÿ To solicit, receive and utilize resources for the purpose of
protecting human rights (including the receipt of funds from
abroad).
The pressure on the human rights defenders is intense when they
exercise these rights. Therefore, it is important to create a greater
legitimacy, including in national and state legislation, recognition,
respect and security for human rights defenders. The diversity and
factions within civil society making it harder to develop strategic
alliances, clear messages and tactics.
There is need for human rights defenders to collaborate in the
monitoring, documentation and reporting and join the advocacy
and campaigns for human rights defenders. Developing and
disseminating counter-narratives about the positive impact and
value of civil society and human rights defenders is crucial. The
support for individuals at risk need to be enhanced by
strengthening the existing human rights support networks.
The role of human rights education cannot be underestimated in
creating the informed consent of the rights holders whose rights
the human rights defenders seek to defend. Overcoming the
barriers in order to achieve these outcomes is key to success. All
the barriers created by vested political and/or economic interests,
including through state-corporate nexus must be overcome.
Let us imbed the protecting human rights defenders and
expanding the space for civil society in all aspects of our work.
17 Sculpting Rights

22. References:
1. AMNESTY INTERNATIONAL'S THEORY OF CHANGE
2016-2019, 12 January 2016, Index number: POL
10/3165/2016
2. Frontline Defenders, https://www.frontlinedefenders.
org/en/
3. http://idsn.org/dalit-human-rights-defenders-need-
urgent-protection-says-un-expert-at-un-side-event/
4. H u m a n R i g h t s D e f e n d e r s A l e r t – I n d i a ,
http://hrdaindia.org/
5. The International Dalit Solidarity Network (IDSN),
http://idsn.org/dalit-human-rights-defenders-need-
urgent-protection-says-un-expert-at-un-side-event/
6. Peoples Union for Civil Liberties, http://hrdaindia.org/wp-
content/uploads/2016/08/PUCL-Statement-on-Sedition-
Case-against-AMnesty-International-India-Final-
18Aug2016-3.pdf
18Sculpting Rights

23. Human Rights to Human Liberation
- Nandita Haksar
n December 10, 1948 the General Assembly of the
United Nations passed the Universal Declaration on
OHuman Rights. It is a fundamental constitutive
document of the United Nations and is supposed to set
international human rights standard for the entire all of us living on
planet earth.
The Universal Declaration of Human Rights was a document born
in the Cold War when the world was deeply divided and unequal
world. The Declaration was supposed to lay the legal foundation
for a world based on freedom, justice and peace in the world.
The Universal Declaration of Human Rights is the most celebrated
document in the world; and the Guinness Book of World Records
says it is the most translated document; more than 400
translations from Abkhaz to Zulu. December 10 is celebrated as
Human Rights Day in every corner of the world.
However, from the start the universality of the Declaration was
challenged; although no country voted against it. Forty-eight
sovereign states voted for the Declaration; there were eight
abstentions.
SaudiArabia objected to equality of women; SouthAfrica objected
to the idea of equality of races; and the Soviet Bloc objected to the
declaration on the ground it encapsulated a capitalist vision in
which the individual was supreme.
19 Sculpting Rights

24. Human rights discourse does privilege the individual over the
collective. However, over time it is clear that in the fight against
injustice, oppression and exploitation the individual can do very
little unless he or she is a part of a community.
Broadly speaking, are two kinds of communities a person can be a
part of, (a) the traditional community in which he or she is born i.e.
the ethnic, religious or national community and (b) the modern
community which a person can choose to belong such as a club, a
trade union or a political party.
The Universal Declaration of Human Rights recognizes that
“everyone has duties to the community in which alone the free and
full development of his personality is possible.” (Article 29)
The Declaration does not explain the meaning of community; but it
does recognize the right of every individual to “participate in the
cultural life of the community” (Article 27)
There is often a conflict between the rights of individual human
rights and the rights of the community. There is also conflict
between rights of different communities. Often these conflicts are
manifested as a conflict between women and the community or
between women of one community with the rights of another
community living within one national boundary.
The violation of human rights of women takes place within the
community she lives; and her fight for her individual rights gives
rise to attack on the entire community to which she belongs. If she
belongs to a minority community, for example indigenous
20Sculpting Rights

25. communities or religious minority communities then we witness
the rights of individual woman being used to batter the minorities.
Human rights discourse has long been used as a tool of foreign
policy, especially by the United States and the Western states. It
has been used to justify wars in which unprecedented number of
civilians, non-combatants have been killed. The most obvious
examples is the occupation of Afghanistan, Iraq and the war in
Syria.
Even international human rights organizations such as Amnesty
International and the Human Rights Watch have been often been
charged of taking up human rights issues selectively in a way to
support the foreign policies of the USA, Britain and the West.
The selective use of human rights discourse to attack China and to
protect Saudia Arabia are just two examples of how human rights
community has helped maintain an unjust and unequal world
order even in the era after the official end of the Cold War.
The wars have led to unprecedented refugee crisis when
hundreds and thousands of men, women, and children have been
forced to leave their homes, their countries and go to the West
which has refused to give them asylum. Instead the West is busy
building walls around their countries; these walls are a violation of
the right to asylum, the right to be recognized as a person under
the law, and against the basic right to security and liberty.
Refugees have been targets of racist attacks, hatred and
xenophobia. The rise of the right wing parties in Europe and
America is a reflection of the dangers of war and the refugee crisis.
21 Sculpting Rights

26. However, the Security Council which passes the resolutions
relating to war and peace is an undemocratic body which is not
accountable to the GeneralAssembly.
The gap between the rich and poor countries has grown and the
gap between the rich and poor within nation states has increased
to levels not seen in human history. The rise in levels of poverty
even in rich countries is unprecedented.
One of the causes of this growing poverty and income disparity is
the unequal world order based on unfair trade practices. None of
the financial institutions under the United Nations system, the
International Monetary Fund, the World Bank or the World Trade
Organization are not subject to international human rights law.
Besides a large part of world finance, banking and trade are
governed by the corporate sector which is beyond the pale of
international human rights law, the international criminal court or
any other international body.
The collapse of banks and the recent recession exposed how
reckless the financial institutions can be when there is no effective
regulation. Five million people lost their homes in the richest
country in the world, the USA. The recession hit millions of people
who lost their homes, their jobs, their right to education and had no
access to health care.
Millions of people around the world have lost their livelihood
because of the destruction of their countries; others have lost their
homes in natural disasters caused by climate change and others
22Sculpting Rights

27. have lost their jobs due to developments in technology. The right
to work is recognized by the Universal Declaration of Human
Rights (Article 23) but the rights of labour are dealt by the
International Labour Organization rather than the committees
dealing with human rights violations.
The right to privacy has taken on an absolutely different dimension
with the exposure made by Edward Snowden. The ramifications
for the safety and security of individuals and countries are still not
fully understood. Human rights law is hardly equipped to handle
the challenge posed by digital technology.
With all these limitations international human rights standards
have played a role in protecting many individual activists from
being detained without trial, torture and sometimes death. But
these human rights standards set and enlarged by many struggles
and movements all over the world such as the dishabilles
movement, the LGBTmovement and the feminist movement.
However, the rise in the religious right whether it is the Christian
fundamentalists, the Islamic fundamentalists or the Hindu
extremists, have lowered human rights standards all over the
world. In fact the gains of decades of human rights movement
have been virtually wiped out by the so called war on terror. The
West has been responsible for using a section of radical Islam as a
tool for their foreign policy objectives and then used terrorism as a
justification for their wars.
Officially, the war against terror started after the attack on the Twin
Towers in New York on September 11, 2001. Classified
23 Sculpting Rights

28. documents revealed that the Saudi Government was involved in
the attack. There was an attempt to sue the Saudi Government for
the deaths in the attacks and Justice Against Sponsors of
Terrorism (JASTA) was submitted to the US Congress in 2009. It
did not become law because President Obama opposed the law.
But in September 2016 the Congress decided to over ride the
President's veto. Stephenie Ross DeSimone became the first
person to file a case suing the Saudi Government for the death of
her husband who was in the American Airlines flight 77 which was
flown into the Pentagon.
This case shows that despite the fact that human rights discourse
has been used by states to justify wars it can still be used as a tool
for justice.
The immediate tasks before the human rights community, the
activist, the lawyer and the academic is to re-look at international
human rights standards in the light of the new developments in the
world; and to begin to engage with the issues raised by the conflict
of rights. In India we have often used human rights without
engaging with the debates and discussions which are taking place
in the world. Without a deeper understanding of the history and
politics which informs human rights discourse it would be difficult
for human rights defenders to engage with the new challenges
outlined above.
There is a need to re-think of the human rights standards, to
enlarge their scope so as to cover the working of the financial
institutions, the corporate sector and the Security Council and the
international criminal court. All these institutions need to be more
24Sculpting Rights

29. transparent, accountable and guided by International human
rights standards.
We need to redefine the aim and objective of human rights from
being an instrument of Western foreign policy to becoming a tool
for human liberation. That was the vision of Ossie Fernandes and
others like him who believe that the ultimate legitimacy of human
rights standards is not states but humanism.
25 Sculpting Rights

30. On Custodial Justice
- Justice H. Suresh (Retd.)
ustodial Justice” – sounds like a contradiction in terms. If
you are in custody, would you get justice? Custodial
CJustice should necessarily mean that no one can be
detained in custody, without justice.
The Criminal Procedure Code itself lays down enough procedure
as to when someone can be detained in custody and for how long.
Broadly, all offences are divided as between “bailable” and “non-
bailable”. If an offence is “bailable”, no police officer can deny bail,
even at the Police Station. However, in reality, people, particularly
the poor, the illiterate and the vulnerable class, are very often
locked up, in the police lockup, without any case being registered
against them. I remember the Bomb-blast case of 2007 in
Mumbai. The Police had no clue as to who had done this. They just
rounded up certain youngsters, all Muslims, mostly from a
particular area, from the suburbs of Mumbai.
They were threatened, tortured, induced to confess, when the
police had no clue as to who had perpetrated this crime! Some of
the parents of these youngsters had come to me, seeking
guidance, It was not possible to get any relief from the Court, as
there was no record of their presence in the Police Station, not
even a memo of arrest. And no lawyer would be allowed to even
inspect the lockup. I took the parents to the State Minorities
Commission, with a request that it could officially inquire into this
unlawful detention in the lockup. Just as many other
Commissions, which are merely ornamental, this Commission did
nothing. (Some of these youngsters have been recently
“
26Sculpting Rights

31. convicted, mostly on so-called confessions, and I believe, they
were all innocent.)
However, in all “non-bailable” cases, it is the Court that has to
consider whether bail should be granted or not. Generally, till the
investigation is over, the Courts do not grant bail. The question is
whether the accused should still be detained in custody, even after
the investigation is completed and charge-sheet is filed. Here, we
have the landmark judgement of Justice V.R.Krishna Iyer
(G.Narasimhulu v/s Andhra Pradesh (1978) I SCC 240) He said:
“The issue is one of liberty, justice, public safety and burden of the
public treasury, all of which insist that a developed jurisprudence
of bail is integral to a socially sensitised judicial process.” He said
that bail is a matter of judicial discretion. But that has to be
exercised reasonably. It should be emphasised that bail is
essentially a question of “liberty”. How much liberty is required to
be curtailed and not, in any event, one of mechanical detention.
While there are relevant considerations before anyone is taken
into custody, what happens after he is taken into custody is a
different matter altogether. Very often there is a considerable
delay in the trial. If, at the end of the trial, an accused person is
acquitted for want of sufficient evidence, what happens to the
period when he was unjustly detained? We still have no law to pay
compensation to a person who has been the victim of unlawful
arrest or detention. Sometime, it so happens, that the Trial Court
convicts and the convict continues to be in custody, but in Appeal,
the Supreme Court finds not an iota of evidence against him and
acquits him. It happened in the Akshardham case, the Trial Court
convicted the accused. However, in Appeal, the Supreme Court,
in 2013, found that there was no evidence against them and they
27 Sculpting Rights

32. were all acquitted. In between, they were in custody for 11 years.
In the process, no one is accountable for what has happened in
the matter. Neither the victim of the offence, nor the convict gets
fair justice.
In this scenario, we now have a firmly established, what is known
as, “security” legislations or as they call it 'anti-terrorist' laws. It all
started with laws like TADA, POTA, etc. All these are supposed to
be “harsh laws” – essentially “detention” laws – as they turned out
to be. Initially TADAwas enacted in 1985 for about two years. But it
was renewed from time to time till 1995 when it lapsed. It was in
force in 22 out of 25 States and 2 out of 7 Union Territories. This
law was misused on a large scale. Within a decade over 77,571
persons were arrested and detained for years together. Out of
these about 72,000 were just let off without a trial because there
was no evidence against them. Even where the accused were
tried the conviction was only in about 1.8% of the cases. Amongst
the persons arrested, there were advocates, cabinet ministers,
civil servants, legislators, civil libertarians, people from the film
world, media personnel, students, writers, artists and several
others including a retired High Court judge.
The worst features of the Act were the following: The definition of
terrorist acts (Section 3) and disruptive activities (Section 4) was
wide enough to cover a wide range of activities, private or public,
violent or non-violent. Disruptive activity included “any action
taken, whether by act or speech, or through any other media or in
any manner whatsoever, which questions, whether directly or
indirectly, the sovereignty and territorial of India, or which is
intended to bring about or supports any claim, whether directly or
indirectly, for the cession of any part of India or the secession of
28Sculpting Rights

33. any part of India from the Union”. (Section 4(2)) And the act could
be anything which “advocates, advises, suggests or incites, or
predicts, prophesies or pronounces or otherwise expresses” and
all these could be disruptive activities (Section 4(3)).
The normal safeguard of being produced before a judicial
magistrate within 24 hours of arrest was modified in TADA cases.
The accused could be produced before an executive magistrate
(Section 20(4)(a)). The remand period, which is usually not more
than 90 days, could be extended upto one year (Section 20(4)(b)).
Bail as a rule was not permissible under TADA. To grant bail the
Court needed to satisfy itself that there were reasonable grounds
to believe that the accused was not guilty and that he was not likely
to comment any offence while on bail (Section 20(8)). The law also
enabled the police to extract confessions which could be used not
only against him but also against the other accused (Sections 15 &
20(3)).
Thus, as we see it, TADA, was an irrational law. Mere expression
of an opinion without any act of violence was termed “disruptive”
by the Act and anyone could be arrested simply for holding a
different opinion. It was essentially a law to silence the people from
dissent and debate. That is how many human rights defenders
and social activists were arrested. If arrested, no bail could be
given, yet there was no guarantee of an early trial. In that sense, it
was detention without trial and with no safeguards applicable, as
provided under preventive detention provisions: Articles 22(3) to
(7) of the Constitution. It permitted extraction of confession from
the accused which is usually done by means of torture. TADA
violated all international standards of human rights set by the
UDHR and also the ICCPR. Above all, such a law can never be
29 Sculpting Rights

34. justified after Maneka Gandhi's case. Yet, the Supreme Court
upheld this law in the case of Kartarsingh v/s State of Punjab.
Then came POTA with similar provisions like in TADA, the net
result being the same as under TADA. This law was also upheld by
the Supreme Court. This emboldened the States to enact laws like
Public Safety Act, or Special Public Security Act, or MCOCA,
UAPA, etc. In all these laws there are provisions which enable the
Police to extract confessions. In all these laws, generally, no bail is
given. The Police have to just mention that the accused is arrested
under any of these laws, the accused is remanded to custody. As
per the National Crimes Bureau Report, over 3200 people were in
custody in 2015, all detained, under the Laws like Public Safety
Act, or Security Laws, with no hope of any trial. In one of the recent
cases, in Chattisgarh, the accused was remanded into custody,
without ever being brought before the Court for subsequent
remands, only to realise, at the end of 6 years, that there was not
even a charge sheet, nor any statement of witnesses recorded.
After an unjust custody for such a long period, the accused was
just released, perhaps, without even a censure by the Court. What
kind of custodial “justice” was this?
It is universal knowledge as to how confessional statements are
recorded at the Police Station. Under the Criminal Procedure
Code, the Police have no right to extract confessions from the
accused. If any accused wants to confess, about his having
committed the offence, he has to be produced before the local
Magistrate, and the Magistrate records the confession, only after
being satisfied the accused was confessing voluntarily and with
no pressure from anyone. But, once this power is given to the
Police, it became an easy tool to extract confession from the
30Sculpting Rights

35. accused, by indulging in various methods of torture, which is now
common knowledge to the general public.
I remember, sometime in 2008, various Human Rights groups
(including HRF) conducted Public Hearing, on use of torture by
the Police, and we found that torture has become routine in every
Police Station in the country, and in all cases, and to claim that the
case is solved. That is how we have a large number of acquittals,
as, on scrutiny by the Court, these statements do not stand the
test of being voluntarily made. In fact, the Police, by and large,
have lost the art of investigation in a fair manner.
Custodial Justice is essentially a matter of due process. Due
process, at every stage, before trial, during trial and after trial. Very
often we have no idea as to what happens while someone is in
custody. As tabled in the Parliament, between 2010 and 2013,
there were 85 custodial deaths in Maharashtra. During the same
period, there were 55 deaths in UP, 33 in Gujarat, and 24 in Bihar.
So far no one has been punished for those deaths. As per NHRC
report, during the period 2009 to 2013, there were 528 custodial
deaths in the country. The NHRC had ordered payment of
compensation in 37 cases, and an amount of Rs.93.5 lakh has
been distributed amongst the near and dear ones of the
deceased. In all these cases, disciplinary proceedings were
instituted only against 3 officials, and only one official could be
prosecuted. There is no report of any one having been convicted
for custodial death. The Supreme Court, in D.K. Basu's case
(1997) had said: “Custodial Violence, including torture and death,
…….strike a blow at the rule of law, which demands that the power
of the executive should not only be derived from law, but also the
same should be limited by law.”
31 Sculpting Rights

36. We also hear that there are quite a number of suicidal deaths
within the prison houses. According to a Report, between 1995
and 2014, there were 999 suicidal deaths in Indian prisons. Under
the NHRC guidelines, every death, including suicidal deaths,
have to be reported to the Commission. We have no idea, as to
how many Reports were made, and after the receipt of the Report,
what action was taken by the NHRC. The more important question
is, why should any prisoner commit suicide inside the jail?
Custodial justice demands that their basic rights-----even as
prisoners ----are not denied.
There is no law permitting the police to kill. Every death in custody
has to be properly investigated. If anyone is deliberately killed,
that becomes an offence. The only provision which allows anyone
to kill is u/s 100 Indian Penal Code__, that too, as a matter of
defence. But that has to be proved in a Court of Law. Therefore,
every killing by the Police, whether the victim be in custody or
otherwise, should be treated as an offence u/s 302 IP Code.
Unfortunately, we have a sordid approach to think that once
anyone is arrested, all his rights remain in abeyance.
Sometimes, we feel that the Supreme Court itself has fallen into
the “trap of abeyance of due process”, when it comes to any case
of a prisoner sentenced to death. I refer to the case of Yakub
Memon. He was in prison for 21 years. He was in solitary
confinement, which was violative of the law laid down by the
Supreme Court in the Sunil Batra case. I had seen him myself a
few days earlier. He had apparently ceased to be an offender.
But the day prior to his execution, what we witnessed in the
Supreme Court, was a bizarre performance of a frenzied Court –
“come what may” – a concerted effort to keep to the target of
32Sculpting Rights

37. hanging Yakub Memon on the dawn of the D-Day – 30th July
2015. In this process, the Attorney General argued like a
prosecutor (nay, like a persecutor). The two judges differed, but
before anyone could read the same in print, the Chief Justice felt
constrained to constitute a three judge Bench to hear the case the
next day. The Bench, who had never heard the case before, could
understand all facts and law, all within four hours, only to say there
is no merit in the difference nor in the petition.Amercy petition was
then filed before the President, who is said to have heard all from
the Home Minister, for two hours, had no compunction to reject the
same. This was challenged in the Supreme Court and the same
three judges were woken up from their slumber, in the middle of
the night, and with their groggy eyes, found no fault with what the
President did. They did not even think that the execution could be
stayed, and the matter could be heard, at leisure, the next day. The
target was to finish everything by 4:00 am, the death warrant being
sacrosanct!
In fact, the question before the Court was whether, after a long
period of incarceration of the prisoner, for a period of 21 years, the
State should be allowed to take away his life? Unfortunately, this
question was bulldozed by the rhetoric of theAttorney General, as
he acted like a prosecutor. Even a prosecutor has a duty to be fair
to all concerned. The Court treated the case as if it was a case for
confirmation of death sentence. That stage was over long ago. In
law, the conviction stands. It cannot be set aside. Therefore, the
gravity of the offence was not relevant. What mattered was the
Court's sense of justice, not the community's. Communal
vengeance – that is no justice. And the State cannot have any
attitude of revenge against anyone. In that sense, the Court
verdict lacked sense of justice. This is where Art. 21 comes as
33 Sculpting Rights

38. Mr. Justice Kurian Joseph rightly said, that it was a matter of due
process……… And unfortunately, the Court failed in
understanding the importance of justice through due process.
It is time that we understand, that the power to grant pardon by the
President, u/Art. 72 of the Constitution of India, is itself a part of
due process. It should not be reduced to a mechanical exercise of
power, on the advice of the Government. In all matters of due
process, the Government can be heard, but it cannot force a
decision.
Justice V.R.Krishna Iyer had said that all punishments have the
objective of making an offender, a non-offender. It is at the stage of
consideration of mercy, the President should have an obligation to
assess the extent of an offender having become a non-offender.
I refer to Rajiv Gandhi's killers, particularly Nalini and Perarivelan.
Their death sentences have all been converted to life sentences.
But the question is, can we still say that they are offenders, under
the law. There can be no doubt that they have become non-
offenders. Their continuation and detention inside the jail is
nothing but denial of due process, and is violative of Art. 21 of the
Constitution of India.
It is time, we should have a fair assessment of all prisoners, to
ascertain how many, and how far, they have ceased to be
offenders. All those, who can be considered as non-offenders,
have a right to demand freedom from prison-house. It also means
that the State has an obligation to take steps to reform and to
rehabilitate all prisoners irrespective of the crime they may have
committed.
34Sculpting Rights

39. Child Rights in India
- Prof. Shantha Sinha
remember Ossie as a person who stood for rights of children,
especially for the most marginalised children and of dalit
Icommunities. He was an angry person and agonised over the
lack of State commitment in laws and policies to protect children.
He bargained fiercely for the best for India's children as it was their
constitutional right and it was the State obligation to protect them.
He strived hard to get legislation for children's right to education
until completion of 18 years and correspondingly for total abolition
of child labour.As the Chairperson of the National Commission for
Protection of Child Rights it was a challenge to meet his
benchmark on what was expected of the Commission. His
certification of the functioning of the Commission was very dear to
me, more than anything else. I do hope that I have met his
expectations. He was indeed my conscience keeper.
1. Introduction
Contemporary times have intensified the dangers to childhood
and have been extraordinarily harsh to many children in our
country. More and more children are vulnerable and marginalized
today. Having no food to eat, and little or no health support, they
live precariously, experiencing hunger daily and suffering
malnourishment, their lives claimed tragically by infant and child
mortality. Older children are being trafficked and are working as
migrant child labour, usually away from their homes. Children
travel long distances across States. Networks for trafficking
children exist from one end of the country to another, from Manipur
to Chennai, Bihar to Punjab, Kerala, Rajasthan, Orissa to Mumbai
and Gujarat. On their way to work and even in the work places, it is
35 Sculpting Rights

40. an undisputed fact that children are subject to abuse, torture and
gross exploitation. Even children, who remain in their own
communities and are at work, are victims of cruel market forces
and lack access to State services and protective schemes. Child
marriage, child trafficking and discrimination against girls remain
crucial challenges. There is a growing number of children being
affected and infected with HIV and AIDS, displacement due to
natural disasters and civil unrest, representing a new generation
of hazards the child faces in this country.
In a way the experience of such a childhood is full of challenges
and risks that gets normalized and gains social acceptance. There
is neither shock nor outrage that children are so deprived and live
lives of unfreedom and loss of dignity. Instead of shaking the
society to abandon its insensitivity towards its children and
shaping its thought processes the State fosters status quo. In fact
the underlying assumptions that form the basis of its legislative,
policy and programmatic framework results in reinforcing societal
complacence on child rights. It leads to denial of children's rightful
share in national resources and the process of development.
While India has the largest network of public institutions such as
schools and hostels, mid-day meal programs anganwadi centres
their quality is woefully weak. They run on less than acceptable
budgetary provisions in relation to the magnitude of task and
coverage of children. While there is a shift in the discourse on
children from providing child welfare to guaranteeing of child
rights the newly enacted laws have compromised children's
1
rights. Thus the law on child labour allows children in 6-14 years
to work in family enterprises before and after school hours and
1
Child Labour (Prohibition and Regulation) Amendment Act 2016
36Sculpting Rights

41. legalises child labour for children in the14-18 years age group in
all processes and occupations with the exception of working in
mines, production of inflammable substances or explosives and
hazardous process assigned to it in clause of the Factories Act,
2
1948; the law on child marriage does not make child marriage
3
totally voidable, the right to education act does not guarantee
right to education for children below 6 years of age and such
children in the 14-18 years of age, the protection of children from
4
sexual offences act criminalises sexual relation between children
in the 16-18 years , an age when it is natural for children to explore
5
their sexuality and the juvenile justice act criminalises the child
above 16 years and provides for them to be tried as adults if they
are involved in 'heinous' crimes. Thus all legislations are half
hearted and even within the limited provisos there is no binding of
the State for inaction.
In view of the limitations of the State in protecting children the
emphasis of the present article is to lay the broad framework for
addressing children and their rights in our country. Firstly it
highlights certain basic principles which are important to ensure
that justice is rendered to children. It is felt that these principles
should guide all actions of the State and inform the civil society to
make demands on them without any negotiation. Secondly, the
entire system of governance which includes actions of the
executive, legislature and the judiciary are just not suited to meet
the needs of children and their well-being. In this context certain
principles for a sensitive child related delivery of services,
2
Child Marriage Prohibition Act, 2006
3
The Right of Children to Free and Compulsory Education Act, 2009
4
Protection of Children from Sexual Offences Act, 2012
5
Juvenile Justice ( Care and Protection of Children) Act, 2015
37 Sculpting Rights

42. jurisprudence and legislations are laid out. Translating the vision
of the child as embodied in the Constitution, various legislations,
policies and programs, CRC, into social and political reality is
never straightforward. These are deeply contested terrains.
Putting children first in the list of State priorities is a moral as well
as a legal commitment.
Finally the underlying attitude that governs relations between the
child and the adult is unequal and determined by inherent power
relations. This could be called 'adultarchy'. The issue of
'adultarchy' is elaborated upon to enable creation of a fair and just
society for children.
2. Child Rights-Some Basic Principles
(i) All the rights of children are of equal importance. Every
right the child enjoys is mutually reinforcing and
interdependent. Therefore the issue of gradation of
rights does not arise.
It is often asked if one were to prioritise any one of the rights a child
is to enjoy, which of the rights has to gain importance. Is it right to
life as it is indispensable for a child to enjoy any other right? It must
be recognised that every right the child enjoys is mutually
reinforcing and interdependent. Right to life is dependent on right
to development and protection and vice-versa. The right to
survival, development, protection and participation as mentioned
in the United Nations Convention on Child Rights (UNCRC) to
which India is a signatory are to be enjoyed equally. The
Constitution of India too guarantees fundamental rights to
freedom, against exploitation, right to equality, right to life and son
which are inalienable. Therefore, the issue of gradation of rights
does not arise.
38Sculpting Rights

43. (ii) Every age within the 0 to 18 years age bracket is of equal
importance.
It is often argued that since it is not possible to have coverage of all
the 420 million children in our country in the 0-18 years age group
there is a need to focus on any one set of children. For example, it
is often said that an infant should assume utmost priority due to
her extreme dependence on adult care and protection for
everything. Also that this is the foundational period of a child's
development, learning and growth and so early childhood should
be of utmost importance. In reality it is found that if a 15 year old
girl who is out of school is a child laborer and also a victim of child
marriage. She is not only subject to violence, abuse and early
pregnancy running the risk of ill health and responsibility to nurture
an infant with low weight. She is in no position to seize
opportunities. Thus policies and interventions at all stages in a
child's growth and development assume equal significance.
(iii) Each and every child would gain access to her
entitlements in a universal approach that is inherently
inclusive.
Adherence to the principles of universality and indivisibility within
the context of a shared vision of protection of all children in our
country is a prerequisite to a rights based approach. In order to
compel the State to provide each and every child her entitlements
a universal approach that is inherently inclusive and equitable is
indispensible.
It has been found that institutions for protection of children's rights
often are to compete with several other budgetary priorities for
allocation of resources. This results in compromising the principle
of universal reach of every child. Instead governments prefer to
39 Sculpting Rights

44. have a targeted approach. This is an essentially a paternalist and
welfare approach focusing attention on 'poorest of the poor' and
'hardest to reach children', 'most vulnerable and at risk children'
and so on, at the cost of investing in strong institutions and
addressing the core issue of preventing children from falling into
such scenarios. Governments should recognize that while child
protection is important it has to be embedded in the framework of
universal coverage and child rights.
Under these circumstances the importance of the principle of
universality that governs the discourse on child rights cannot be
understated. This principle is a product of struggles and
assertions of the oppressed and exploited globally and is bound
by the values for equality and justice. These values and normative
goals guide contemporary struggles for fulfilment of children’s
rights. It is not fair to reject the universal principles that charge the
imagination of the defenders of human rights as western thought.
Each victory anywhere in the world towards enhancing children’s
rights is part of history and the struggles for children everywhere
else in which new layers of oppression, inequalities and injustices
get visibilised and corrected. It is indeed a reflection of the finest of
human spirit giving a new meaning to what constitutes childhood.
(iv) The principle of non-discrimination and equality has to
be adhered to in operationalising services to children
who are differently placed and in unjust circumstances.
Lack of access to basic services is widespread and most children
in the country are either underserved or then, not served at all. At
the same time, there are certain groups of children who are at
greater risk and face greater hardship in accessing services. This
is true of the scheduled castes and scheduled tribe communities
in India wherein they have been discriminated against on access
40Sculpting Rights

45. to all their entitlements. It is also true of girl children and those who
are physically and mentally challenged. The system of delivery of
services is half hearted, as if it is a charity and not a rightful claim
as guaranteed under the Constitution of India. There is a deficit in
childhood in every respect harming development of children's
fullest potential and in the long run in enjoyment of their right to
participate as citizens; realize dignity; enjoyment of equality and
social justice meted through state laws and policy.
Under such a circumstance affirmative action through a targeted
programme reaching out to most deprived communities or
children in backward regions or those with special needs is
important.
The idea of social justice and equal opportunities found
expression in Article 39 (f) of DPSP wherein 'children are given
opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth
are protected against exploitation and against moral and material
abandonment'. The provision of free and compulsory education
as a matter of right was also debated in the context of giving equal
6
opportunities to all. They were essentially in the realm of
providing equality and social justice. Thus, Directive Principles of
State Policy (DPSP) Article 39 A emphasized the need for legal
system that promotes justice, on a basis of equal opportunity'. In
Article 46 of DPSP the State had to 'promote with special care the
6
As M.R. Masani debated in the Constituent Assembly, “Equality of opportunity, (Sir) presupposes
equal facilitiesin education and in the development of the talent that is latent in each one of us. To-
day, among our masses a fund of latent talent exists which has no chance to come out and
contribute to our national good. Equality of opportunity certainly assumes that every child in this
country, every boyand girl,willgetan equal opportunity to develop those faculties which he or she
possessesinordercontributetothecommongood.”CONSTITUENTASSEMBLYOFINDIA-VOLUME
VII,Tuesday,23rdNovember1948
41 Sculpting Rights

46. educational and economic interests of the weaker sections of the
people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and
all forms of exploitation.' These principles were to be fundamental
in the governance of the country. It was envisaged that the State
would be duty bound to apply these principles in making laws.
Thus affirmative action through specific interventions for those
who are being discriminated has to be provided as a matter of right
as an aspect of principle of universality.
(v) Children are to be embedded in their culture and
environment to feel empowered but not at the cost of
their rights.
The diversity and plurality of the cosmos of children have to be
respected where they blossom in a natural fashion. When there is
a conflict between culture and child rights, children's rights must
take precedence and old cultures and traditions must adjust to
give primacy to children's needs and rights. It is often debated that
the principle of universality homogenises childhood at the cost of
profound diversities and cultural idioms a child is ensconced in.
There is a strong case for maintaining tradition, culture and
respecting local specificities invoked from the global to local policy
makers, intellectuals, activists. Undoubtedly respecting the
cosmos of a child is important but it would have to be abandoned if
it in any way harms her dignity and freedom. Instead new
processes to meet the norms of childhood would pave the way for
a new set of values and traditions transforming the ways of
thinking and doing things. This would have an impact on childhood
and consequently structure of society.
42Sculpting Rights

47. (vi) It is the State's obligation to protect children's rights.
The civil society is to be seen as an equal partner to
create an environment where child is in the centre of all
decisions.
Attainment of children's rights is a deeply contentious issue. There
is a constant tussle between structures of power and authority that
seeks justifications to compromise on children and their well-
being and defenders of child rights who have taken categorical
stand in favour of children. Civil society has a role in taking non-
negotiable, dynamic and uncompromising stands in favour of
children and foster public action to bring about changes in policies
regarding children. In a way civil society has a role in bringing
pressure on the State for systemic changes to actualise the
normative content of what constitutes childhood as a lived in
reality.
State and its functionaries are to recognise this role of the civil
society and utilise their services as equal partners to reach out to
the community, build public awareness. However in doing so the
State shall not abdicate its responsibility in being accountable and
deliver services.
3. Principles of Governance for Protection of Child Rights
Taking uncompromising stands in favor of children and their rights
is the first step in the direction of fulfilling State obligation towards
children and their rights. The following are some of the essential
principles that have to be adhered to by the State and its
executive, judiciary and legislative apparatus to render justice to
children.
(i) Child Rights and Governance
To ensure universal coverage of children five essential
management principles viz: decentralization, flexibility, institution
43 Sculpting Rights

48. building processes, convergence and a time bound commitment
are to inform every action of the State.
Firstly, all plans should flow from the gram panchayats upwards
and the principle of subsidiarity has to be adhered to. The principle
of subsidiarity holds that a larger and greater body should not
exercise functions which can be carried out efficiently by one
smaller and lesser, but rather the former should support the latter
and help to coordinate its activity with the activities of the whole
community. Thus the district, State and Union government is to
respond and give support to the plans emerging from the field
level or the gram panchayats.
Secondly, the method in which the goals are to be attained should
be flexible. Thus, while the broad policy parameters are laid by the
State or Union governments, the authority at the sub-district level
and the gram panchayat should have a degree of autonomy to
work out the exact manner in which the rights of children would be
protected. Thus it is a fallacy to provide for a one size fit all solution
without having the flexibility to design one's own program
depending upon the local specificities. In a way flexibility would
enable an organic process of decision making at the level of the
gram panchayat which in the long run would foster new tradition
and culture for caring for children and protection of children and
eventually become sustainable. In creating such a dynamic
system that have emerged in consultation with the functionaries in
the government, local bodies and members of the civil society the
capacities of the government at all levels is also enhanced.
Thirdly it should develop into a program which is not dependent
only on a well-meaning bureaucrat or a politician but the
endeavour should be towards strong institution building
44Sculpting Rights

49. processes where there is predictability and continuity in services,
flow of funds and technical support.
Fourthly, it must be recognized that protecting the rights of
children can happen only with the coming together of all
functionaries across departments and finally the best has to be
given in a time-bound manner without any waiting. A distinction
between short term needs that require immediate action and the
vision for long term goals does not make sense as far as the child
is concerned.
(ii) Child Rights and Jurisprudence
Children would need special measures at every stage of the
process of justice. These measures would extend to child victims
and witnesses i.e. children in need of protection, children in
contact with law and children in conflict with law. This would
require the introduction of child jurisprudence, a child focused
procedure code, a well-trained cadre of the judiciary on child
rights, and adequate space and opportunity for children to seek
justice under humane and 'child friendly' circumstances involving
adherence to the following principles.
Firstly, children are to remain protected and not further victimized.
From the first contact with law, this is often the police, thereafter
medical examination, to the presentation before the Magistrate
and the period of trial, cross examination. Thus maintenance of
dignity, privacy and safety of the child shall be of central concern at
every stage of adjudication.
Secondly throughout the process of being present in the court
either as a victim or a witness the child has to feel comfortable.
There shall not be any direct interface between the child and the
accused lest the child feels threatened and intimidated. For
45 Sculpting Rights

50. example all questions in cross-examination shall be put to the
child witness or the child victim only through the Judge.
Thirdly, it must be noted that extending special measures to the
child is not because the child is considered to be incompetent to
give evidence but rather to give the child support such that the
best quality of evidence is forthcoming, without further victimizing
the child. The tendency of adults (Judges not excluded) to
patronize the child is strongly discouraged while providing special
measures. On the contrary, it is intended to enable the child to
depose under the best conditions which the Court in its discretion,
may facilitate.
Finally, to minimize child stress and to ensure that justice to
children deserves the highest priority, the court must designate all
trials involving children as being of special public importance and
ensure that it not only takes precedence over other regular cases
but that these cases are always taken up on a day to day basis and
completed with speed and special care in the best interest of the
child.
(iii) Child Rights and Legislations
The first set of challenges that act as barriers towards children
enjoying their rights is in the realm of attitudes and dominant views
about children and the poor both at the State and civil society.
Thus laws in favour of children are not passed because they are
not 'practical'. For example it is felt impractical to include children
less than 6 years of age as well those in 14 -18 years age group
under the RTE Act. Or abolishing child labour in all its forms up to
18 years of age under the Child Labour Prohibition and
Regulation) Act, 1986 is not mooted because it is not 'practical'.
The issue of practicality is viewed from the point of view of the
46Sculpting Rights

51. system and its limitations to implement the law and not of the child
who is being exploited and enslaved.
It is also argued that poverty is the cause for increasing
vulnerabilities of children implying that as long as poverty
continues children's rights cannot be protected. The 'poverty
argument' does not prioritize the well-being of children, their
childhood or their rights. It only lays down a rationale for
postponing the State's obligation towards children and transfers
the responsibility to poor parents. From a child rights perspective
children are individuals in their own right and securing of their
rights cannot be linked to their conditions of poverty. The State has
to provide for all children as they have a right to life with dignity and
there cannot be any justification to compromise on this basic
principle.
The 'poverty argument' is also linked to a compelling view that
poor don't care about their children. Some also feel that they ought
to be punished for neglecting their children. This is based on the
assumption that quality services and institutions are in place and
that it is the parents who refuse to access such institutions and
would rather exploit their children. In most circles there is also a
dominant view that the poor have large families and India's
population is the problem which has to be solved first; and tradition
and culture cannot change overnight.
Finally pervasive cynicism weighs against the enactment of a law
protecting children. A conviction exists that corrupt functionaries
will not perform their intended purpose, and any such legislation
would remain only on paper remain unimplemented. Indeed this
argument serves only to maintain the status quo and delegitimize
existing institutions. In a developing country such as India,
47 Sculpting Rights

52. legislation to guarantee human rights operates as tool for the
empowerment and the assertion of the vulnerable. They stand as
a bench mark to guide and direct civil society on matters relating to
social justice and equality, and are expressions of the will of the
State.
Therefore, it remains a challenge to insist on the State's obligation
towards children and mitigate all barriers, including the above
arguments. To take categorical positions and rights based
approach requires a whole hearted commitment and allocation of
resource as part of the legislation itself.
4. Combatting 'Adultarchy’
The absolute value of human rights as inviolable has gained
acceptance over the years and has come to stay. Anchoring on
this, women have asserted against patriarchy; the marginalised
communities and groups have claimed rights, both cultural and
economic, against overarching projects of exclusionary
modernisation and continue to challenge the existing structure of
economy, society and polity. In exercising their agency and in their
acts of resistance they have questioned the existing hierarchies
and structures of domination and power that inflicted violence on
them – physical and emotional – and are constantly negotiating
spaces in their favour.
Each time a new layer of society gains confidence to question
there is discovery of one more layer of domination that needs
correction. In this instance it is the domination of the child
exercised through an ideology of 'adultarchy'. 'Adultarchy' is the
liberty to treat children with authority by the adults and it comes
from the understanding that children are less than adults and that
the adults have a duty as well as a responsibility to control and
48Sculpting Rights

53. discipline children. Therefore, in the best interest of children adults
can use force and violence to correct them. Thus, the act of
violence and exercise of power of the adult over the child is
repeatedly justified. It is seldom regarded that children are
individuals in their own right and equal to adults.
This happens even in a family situation. Children are subject to
insults and are not heard by adults. Punishing a child is seen as
parental responsibility. The moment there is defiance of the child it
is construed as being disrespectful. And so, the child is further
admonished, very much like in the context of the school. Having
no options, children accept this as a reality and learn to live with it.
The challenge is really in protecting children and making them feel
secure and at the same time enhancing the quality of relationship
between the adult and the child. For, in principle family as an
institution should be the best place for any child.
Indeed the questioning of domination of the adults i.e. 'adultarchy'
over the child is part of this unfolding of the human spirit and in
favour of respecting a culture of empathy and non-violence that
should govern the relationship between adults and children in a
cultured society. The difference in this endeavour is that those
who are dominated are children and are especially vulnerable due
to their inherent powerlessness in an adult society. What
distinguishes children from adults is that their capacities are
evolving and so would require greater care and protection. They
are entirely dependent on adults and thus in no position to charter
any independent path without adult support. They need
tremendous support of the adults to be heard. The answer to the
violence on children is adults and not resistance of children.
49 Sculpting Rights

54. This is indeed a challenge. The world of adults must acquire the
unique capabilities to pay special attention to have children's
opinions heard and respect the dignity and rights of every child in
every circumstance. Children are as human and sensitive as
adults are, if not more. They need to be secure with a caring
atmosphere and this is an adult responsibility. Practicing non-
violence as a highest form of culture begins with seeing children
as children. It is necessary for adults to behave with them in a
manner that they are not subject to violence and hurt of any kind.
In a way fostering equality and respect for children will develop
adults as responsible adults who would in turn be vigilant and
question those that are breaking the norms of respecting
childhood. A normative framework of empathy and non-violence
would govern the relationship between adults and children
making for a cultured society.
It is in breaking 'adultarchy' that the State is sensitized to
respecting children as equals and endowing them with rights.
5.Aright based perspective-impact
In sum, a rights based perspective is a universal human right and
applicable for all children; in a sense all children everywhere in the
world must possess their rights equally and only because of their
status as children and as human beings. These rights are to be
guaranteed by the State and are political expressions. Under a
rights based framework it becomes imperative that there is a
whole hearted commitment in provisioning of resources, services
and institutions mandated by an appropriate legal framework.
The values of equity and justice for protecting children's rights,
has a profound impact on children, offering a new set of traditions,
cultures and values that would eventually bring transformation in
50Sculpting Rights

55. all our lives as well. The unequal relationship as it exists between
the adult and the child is questioned and gets corrected. Children
become individuals in their own right and social norms are so
constructed to enable the child evolve fully and realize her fullest
potential. A secure childhood is guaranteed and security of the
child becomes the best defense of a country and a new world
order.
The secure child has a lasting impact on aspirations of its citizens
to be productive. With the right kind of mobility, gaps and
disparities are bridged. A bounce in social classes has an overall
impact on economic development and growth. Every right
attained for the child brings changes in the existing socio-
economic formation towards deepening of democracy.
Every child right attained builds State capacities for
democratization of all public institutions, giving access to one and
all without discrimination and when such institutions no longer are
sites for contestation of power. Every right attained for the child
indeed radicalizes democracy and makes for a proud and cultured
nation.
51 Sculpting Rights

56. Fundamental Right to Education at
Cross Roads
- Ravi S.K
An Institutionbyhis persona -Osmond Fernandes
Ossie, was born in an era of deprivation around him – of hunger, lack of
schooling, lack of shelter, denial of dignity, caste based discrimination
and atrocities. He was but privileged by his values, deep concern for
humanity and human rights. Early in life his socially conscious lens
watched deprivation of education for the backward and the poor in great
number. Perhaps he stopped his education at a bachelor's level, or even
beforethat,onlytoaddress thesesocialinjusticestopoor children.
As a policy analyst, he remained witness to the international declaration
– Education for All, 1990 to making of the Right to Education Act, 2009.
He remained very analytical of both national and international
progressions, discourse and outcome. He was critical when he had to be,
supportive when he found processes to correct the errors in policies and
laws. He believed in possibilities of change, the inherent potential of
human society,includingtheStatetoaddress issues ofsocialjustice.
He may have appeared pessimistic, I don't care who you are attitude,
when he had to call spade a spade, be it in NGO sector, government or
even media. He may even have appeared dismissive of a particular
perspective, but was never pessimistic. He engaged hence, in processes
to bring changes in laws, policies and decisions of the state and the
judiciary. When the Right of Free and Compulsory Education Act, 2009
came into being, he did listen to foolish to somewhat wise critique of the
Act in transforming school education for poor children in India, by
people of my genre. But his piece of advice was, to engage in grounding
of the Act, and but watchful of its limitations in ensuring right to
education. This was because he was hopelessly optimistic. His caution,
in the late 2000s, when nationally there were efforts to bring the Act, and
52Sculpting Rights

57. lobby for changes in the Child Labour Act was to be very decisive about
the age of the child. Never to compromise on the 18 years brace. He saw,
RTE Act as a continuum, an instrument for attaining right to education
and freedom from bondage of labour. He believed, perhaps that the State,
would bring in compulsory education at secondary education levels. He
believed that the State would harmonize the RTE with the CLPRA.
Therefore he suggested all of us to become votaries of the definition of
child to be till 18 years. He cautioned us way back in the early 2000, and I
believe even before, when he headed the CACL to keep the agenda of age
of child for it to be 18 years. His suggestion was, thus the age of child if
becomesuniform inallthelaws, itwouldbeeasytocreategroundswellof
demand for complete abolition of Child Labour - conformity with rights
ofthechild.
He continued to advise that, the civil society in India need not worry
about absence of ratification of ILO protocols/dictate of minimum age of
the child, worst form of labour etc. His advice to Indian civil society to
expend its policy energy only to strengthen advocacy for education,
compulsory and free upto 12th standard, make definition of the child – all
below 18 years age, and abolish child labour completely. He was a
visionary, because he taught law and policy work himself, became his
own teacher for pursuing his passion for understanding and engaging
with human rights, state policies and law. No wonder, he was famously
harsh on himself, in learning and discipline in delivery of duties. He was
a man of great policy, legal and advocacy mind, committed to human
rights values, and that made him contribute to the discourse on right to
educationinIndia.
I have attempted to capture, the challenges that lay before us on policy
and legal front on right of child to education in India. Ossie would have
worked for the next 30 years of his life to address these challenges. For
Ossie, deemed education as a human right of every child in India, did not
let anyone think that it was a mere service, a skill set acquisition, a
53 Sculpting Rights

58. measure to secure employment. He joined the thinking that education
promotes democratic participation of poor in India, promotes systems to
break inter-generational disparity in families, of social and economic
rights. His vision and understanding on right to education were deeply
rooted in human rights perspective. He always shared that education as
a human right,wouldpromoteactivedemocraticcitizenship.
He continued his commitment to working on rights of children till his
death, and was instrumental in myriad of ways to influence policy
thinking on addressing child labour, drafting of the right to education bill
(civil society), inputs to various drafts of right to education bill, abolition
of child labour, child trafficking, Tamil Nadu movement for equitable
education, informing the national commission for protection of child
rights on issues of child protection – corporal punishment, rights of
orphan and vulnerable children in HIV&AIDs context. I am honoured to
write a piece on education as a human right and the challenges faced in
thecountrytoday.
Indian Education Trajectory:ARecollection
Education, in the sense of, educating a child, has been a concern
for voluntary organizations, philanthropists, missionaries and
Gandhians since pre Independence in India. However, it did not
largely have rights framework, it was a charity oriented activity,
and was hugely focused on supporting children from dominant
caste background, barring social work initiatives by missionaries.
Education was seen as a right, and that it should be made
universal was advocated by Dr.B.R.Ambedkar, and he
emphasized it before and during the making of the Constitution.
Ossie, I would say was inspired by Ambedkar, he believed
education was human right of every child in India, and ensuring
that education was the duty of the State. Hence right to education
must find a place in the Constitution of India. His association with
54Sculpting Rights

59. social action for right to education, I can trace since the activism of
the National Alliance for Fundamental Right to Elementary
Education (NAFRE), and its chapter in Tamil Nadu – TAFRE, in
early 2000. The civil society alliance among other demands had
the overarching demand, for making education a fundamental
right under the Constitution of India.
Through the decade of 1990 and 2000 the issue of education has
seen, a trajectory towards making it a fundamental and justiciable
right under the Constitution of India. These were a result of, (1)
The Supreme Court ruling of right to education as a fundamental
right in the Unnikrishnan's case (1993), (2) the 86th amendment to
the Article 21 of the Constitution of India (2002) making right to
education a fundamental right in consonance with the
Unnikrishnan judgment, and (3) Passing of the Right of Children to
Free and Compulsory EducationAct, 2009. The vision of Dr. Baba
Saheb Ambedkar and Gandhi (in 1937) to provide education to
children (universal) found firm grounding in the Constitution of
India - in the body of fundamental rights.
Right to Education Decades – 1980s to 2000: groundswell of
action
Internationally as well, these two decades and a decade
preceding this, deliberated on building rights based framework for
right to education of children. These were geared toward, calling
the nations to provide free and compulsory education for all
children, literacy for all, bridging gender gaps in education,
committing funds for education by the states as well as donor
organizations. The notion of education saw shifts from non-formal
education to, full-fledged right to education in, full-time School
based education. Even in the NGO activities non-formal
education was progressively done away with.
55 Sculpting Rights

60. In India, the government started efforts towards ensuring primary
education, geared towards enrollment, retention and
enhancement of girl's education to bring gender parity. Bihar
Education Project, DPEP, Nali Kali in Karnataka and SSA have
been such efforts. Pioneering policy work by the civil society like
the PROBE-I Report too opened new vistas for policy discussion
and solutions, in primary education, especially in educationally
backward states in northern India. It threw up need for grounding
the EFA goals – universalization of education. Many voluntary
organizations, of the fame, MV Foundation (originally in Andhra
Pradesh, but expanded across India), Eklavya Foundation, M.P,
and the Lok-Jumbish program in Rajasthan worked towards
strengthening the state system, and building praxis for community
mobilization, and effective school curriculum and pedagogy to
further education and child rights.
Overall, the trajectory in right to education was moving from
service based, non-formal, voluntary organization driven to
universal and state driven education provisioning throughout the
1990s. Likewise in the voluntary/NGO sector, the movement in
discourse was made towards advocacy and policy work to
demand amendment to make education a fundamental right,
abolish child labour completely, by organization like CACL, MV
Foundation. HRF that Ossie built had been integral to working of
these efforts in more than one ways. Ossie himself was part of
CACL, and consciously emphasized on child's right to education,
which he saw as integral to human rights of children. He supported
the view that, education for children was the only medium for
rehabilitation and prevention of child labour. One must note that,
these were only efforts to strengthen government system, not to
build a market for private schooling.
56Sculpting Rights

61. Civil society celebrated the democratic fabric of India, hence civil
society participated in strengthening the State functioning, and
continue to do so. They work with teachers, panchayats, parents,
school education departments and children above all. Else these
luminary organizations should today have been operating as
private educators across the county. The bridge course for school
drop out by the MV Foundation is today a popular model by the
state and the civil society to enable children's return to schooling.
Education as a Human Right
Indian Constitution enunciates principles of equality and equity in
rights for every citizen of India. Education aids in achieving
equality, equity in accessing all the rights. Education creates
empowerment and further emancipates human beings to address
inequity and injustice at societal level. Education is believed to be
first developmental right of every child; however, the scope of the
right is beyond development, but promotion of empowerment as a
human being and citizen of a country.
Schoolsplayaroleindeepeningdemocracyandnationbuilding
State run schools especially are pillars of democracy, they bring
children from all across class and caste helps them bind with each
other, reinforcing the composite culture, helps children recognize
values of diversity. Education as a public good is therefore
important in building an equal society, a society where education
enables building a literate society, so that participation in
democratic process becomes meaningful. Citizenship is
strengthened by a society of educated, participating in decision
making and playing a role in that, on equal footing. If democracy is
to exist, then state run schools should exist to build a society,
respecting composite culture, constitutional values of equality.
57 Sculpting Rights

62. Perhaps this is the reason; there is a strong case and argument for
equitable education dispensation through the common school
system. No one can rule out that, government schools are the
early ground for inculcating the Constitutional values and
sense of human rights in children.
Schoolisthebestplaceforchildtobein
Schools act as a continuum in protection of rights of children. Prof.
Shantha Sinha, previous chairperson of the National Commission
for Protection of Child Rights, and a friend of Ossie, holds a view
that education is the best response to child labour and schools are
the best place for children to be. School is where a child is
prevented from going into labour, getting married and trafficked
etc. Early childhood education and care, is the beginning of the
continuum of protection of child rights, for it even ensures that, the
child is enrolled into school. Perhaps the reason, there is a
demand for pre-school centres to be attached to regular full time
day schools, as it existed in Karnataka and some other states in
India.
Ensuring Right to Education at primary and secondary levels is
therefore not just, building literacy, skills, subject-wise knowledge
impartment, in order to enable students to pursue further
education. It is an act of empowerment, and an act of building
inclusive society and democratic spirit. Ambedkar and Gandhi
therefore called for universal education for all children.
RighttoEducation–changingfacets
Indian civil society throughout post the independence worked not
just to impart education to individual children but also worked to
shape a rights discourse around varied aspects of education,
58Sculpting Rights