Updated: Nov 9, 2020
On August 5, 2019, the people of the state of Jammu & Kashmir experienced a rearrangement with the abrogation of Article 370 of the Indian Constitution, which provided the state special status. The abrogation was accompanied by administration of a stringent lockdown which resulted in the communication blockade, internet gags, imposition of arbitrary detention law, and restriction to press in the state. The measures were taken on alleged grounds of maintaining “law and order” in the state after the scrapping. On the contrary, this aberrant policy and course of action of the government impacted population drastically, including children. Children remain disregarded and bypassed in this tussle. Internet ban and lack of Education have not only rendered the children’s growth stagnant but also have deteriorated their mental health. Furthermore, it broaches on the violation of various international conventions and national policy that protect and promote child rights. Deliberating upon the legality of government’s action and happenings of current events, the article highlights the aftermath of abrogation in reference to children rights violation in Kashmir.
Position of Children in Kashmir
Education seems to be an impasse for more than a year now. From the crackdown in J&K to the nationwide lockdown the education endured the most in making its way to the children in the region. In a span of a year, schools witnessed less than 100 working days. In Kashmir education institutions reopened in mid–February of which the government ordered the closure until 31st March, which, in view of the pandemic, was extended until now. This rendered educational growth of children inert for more than a year.
Internet is becoming instrumental in shaping education in rest of the country in pandemic. It is a bliss that Kashmir lacks. The internet blockade has been imposed in the state for a year now. The internet shutdown has snatched the last resort from the children to access education through online mode. Absence of an online platform is extensively affecting the children’s educational growth. Although 2G services were restored in the region in January, it is not the answer to the plight of the children.
Right to Internet and its Status in Kashmir
In January 2020, the Supreme Court proclaimed that the Right to internet is covered under Article 19(1)(a)of the Indian Constitution. In the case, SC found the government's claim of internet shutdown for the purpose of national security dubious and ordered for a periodic review of the shutdown order. Further, it emphasized on the application of proportionality doctrine to find a balance between national security and liberty of people. Even after the apex court’s ruling, the 4G internet has been restored only in two districts of J&K after 8 months of the SC’s order.
The Internet shutdown has become multifaceted issue since last year. It has rendered education stagnant and affected educational growth severely. Lack of educational facilities not only hinders the learning but creates an unhealthy environment for the mental growth of the children. The basic needs for child growth like normal schooling, regular opportunities to socialize, proper schedule, etc. still remains in derelict condition in Kashmir. Disruption of routine and absence of healthy recreation took heavy toll on children and has resulted in the problem of Post Traumatic Stress Disorder amongst children in Kashmir.
Since the lockdown, around “124 children mental health cases were reported in Child Guidance and Well-Being Centre, whereas, around 800 children sought help via telecommunication.” In light of the gross violations, a plea was filed in SC for providing mental help to children in J&K, to which the apex body agreed. However, any such practicality is yet to take place. The government needs to fulfill basic needs of children in order to prosper a healthy environment. On the contrary, the long queues formed outside medical clinics for mental help implies an antithetical situation. India is not only failing its children but also disregarding its promises made on the international platform for safeguarding child rights.
India’s International Obligation Towards Child Rights
The lack of education in J&K from almost more than a year is a sheer violation of the provision of United Nations Convention on the Rights of the Child (UNCRC).The UNCRC is a dedicated child rights legal framework which India has ratified. The Article 28 of UNCRC encourages the right of the child to education on the basis of equal opportunities. Additionally, organizations like the United Nations Children’s Fund (UNICEF), World Bank, and the United Nations Educations, Scientific and Cultural Organization (UNESCO), which India is a party to, promote and encourage its member country to provide access to free and compulsory education. The World Health Organization (WHO) in 2013 released the Action Plan 2013-2020 for the betterment of health all around the globe. The vision of the plan, as explicitly mentioned is “mental health must be valued, promoted and protected.” This plan urges India, which is a member state of WHO, to inculcate the basic principles of the plan in national legal framework. Moreover, UNCRC under Article 19, 27, 29 and 32, urges the members to provide adequately for the mental growth of the children. The convention also prohibits any possible exploitation that might disturb the normalcy during childhood.
Recently, in a press briefing of October, 2019 by United Nations Human Rights office of the High Commissioner (OHCHR) showed its concern upon the denial of basic human rights to the people of Kashmir including Right to Education. Further, it emphasized on the wound up of State Commission for Protection of Women and Child Rights, in view to establish new similar body which is yet to be established. India needs to act upon such concerns in order to uphold its international obligations and protect the rights of its young citizens.
National Legal Framework and India’s Take on Child Rights
The violation of child rights in Kashmir can be supported by the Indian Constitution and national policies of the country in force such as Right of Children to Free and Compulsory Education (RTE) Act, 2009 and Mental Healthcare Act, 2017 covers various issues related to child rights. In 2002, 86th Constitutional amendment added Article 21-A in the Indian Constitution making Right to Education a fundamental right for children. It enshrines compulsory education to all children under the age group of 6 to 14 years. This amendment generated a need of a specified legislation to govern the modality of the implementation of the newly introduced right, which, in turn, resulted in The Right of Children to Free and Compulsory Education Act, 2009 (RTE). It is a justiciable act in compliance with Article 21-A providing satisfactory and equitable quality of education to the children in the 6 to 14 years age group. Also, the said act binds the centre, state governments and the local government bodies with the responsibility to enforce and promote its guidelines such as free, compulsory education, all round development of children, and zero tolerance against discrimination and harassment of children.
The RTE also emphasizes on the mental health of the children. As per Section 29(g), it is the duty of the state authorities to make sure that the “child is free of fear, trauma and anxiety”. This is backed by rationale of Article 21 of the Indian Constitution, which includes in its purview Right to Mental Health. This national framework based on fundamental right propels the central and state government to enforce Right to Education. However, the government is actively violating all such rights by not complying with its legal duties.
In 2017, Indian legislation finally enunciated upon the importance of mental health in the country by passing the Mental Healthcare Act. Section 18(4)(e) provided for the care of the mental health of the children. Additionally, Section 32 made the mental care the duty of the state. Despite the existence of such legal frameworks, the country has been violating its own laws and has been exploiting child rights by imposing restrictions on the access to internet since one year.
The government’s action since the abrogation of Article 370 has affected children profoundly in terms of education and mental health. The forum of Human Rights in J&K has released a comprehensive report that emphasizes human rights violation including violation of child rights taking place in the region. The grave and blunt violation of human rights has caught international attention from various human rights organizations. Tragically, India is yet to take any reconciliatory measure for the same. When India can convert the growth of its children as a sustainable tool for the desired and unprecedented development of J&K since independence, it is failing its own children.
The schools might take indefinite time to restart in the view of the ongoing pandemic, which eliminates the possibility of the offline mode of schooling. Until then, it is imperative to avail the online mode of education to the children of Kashmir in order to keep them on par with the world and to protect their mental growth. To build a balance between national security and child’s mental and educational growth, the Government should come up with specialized online education platforms, which are in line with the safety and security of the state. Now, it is peremptory for the government to address the violation of child rights in J&K to save the childhood discreet in darkness.
Title Image Source: India Today
This article has been written by Sakshi Pandey and Harshvardhan Singh Sikarwar who are III year students at Institute of Law, Nirma University. They hold a keen interest in Child Rights, Humanitarian laws and Constitutional laws.