Breaking; Law Commission of India suggests to make “Right to Childhood Care” a fundamental Right [Read the 259th Report]

Law Commission of India has released its 259^th Report titled, “Early Childhood Development and Legal Entitlements”, highlighting the issues relating to the rights of children under the age of six years. The Commission took up the study on request of some of the representatives of Alliance for Right to Early Childhood Care & Development and Mobile Crèches, who met the Commission in November, 2015.

The Commission focuses its research on the children up to the age of six years as this period is considered as a ‘window of opportunity’, i.e., if the child receives favourable environmental inputs of health, nutrition, learning and psychosocial development, the chances of the child’s brain developing to its full potential are considerably enhanced.

It has further proposed that the Maternity Act be amended in consonance with the forward looking provisions in the CCS Rules, whereby maternity benefits should be increased from twelve weeks to 180 days. This should be made obligatory on the State and not left to the will of the employers and should cover all women, including women working in the unorganized sector. The provision for unconditional right to Crèches and day care has also been made the responsibility of the State and not the employer.

Furthermore, the Commission has advocated for formulation of policy of guidelines laying down minimum specifications of paid maternity leave to women employed in private sector.

Three Constitutional amendments have been recommended by the LCI. A new Article 24A has been suggested to be inserted to Part III of the Constitution of India, to ensure that the child’s right to basic care and assistance becomes an enforceable right. It has also suggested an amendment to Article 21A of the Constitution of India, which deals with the Right to Education. Lastly, the Fundamental duty of the parent or the guardian to provide education has been recommended to be extended to children between the ages of six and fourteen, by amending Article 51 A (k).

Despite 16% of the Indian population being between the ages of 0-6 years, the Commission notes that there is no clear legal articulation of the entitlements of these young children.

It describes as “slow” the response of the Government to the problem of malnutrition and neglect of young children. It was in response to rising voices demanding greater attention from the State on the issue of ‘Early Childhood Development (ECD)’ that the Government came out with a comprehensive ‘Nation Early Childhood Care and Education (ECCE) Policy, 2013’.

It hence recommends that guidelines be evolved for identification of children suffering from malnutrition and for referring such children to appropriate healthcare providers.

The report hence analysis the elaborate analysis within 7 chapters: Concept and Importance; International Conventions, Treaties and Declarations; Constitutional Context; National Policies and Schemes; Health and Nutrition; Care and Education; and Conclusion and Suggestions.

Besides the Constitutional amendments, it also suggests that Section 11 of the Right to Education Act be made mandatory. This provision would make it mandatory for the Government to make necessary arrangement for providing free pre-school education for all children until they complete the age of six years.

The need for a Council for Early Childhood Development has been emphasized upon, which may be composed of officials from the Ministry of Women & Child Development, Ministry of Human Resource Development, Ministry of Finance, Ministry of Labour and Ministry of Commerce & Industry and representatives from civil society active in the field of early childhood development, and other such members as may be specified.

This Council would be made responsible for laying down minimum universal standards for quality of services, facilities and infrastructure to be put in place across all schemes and provisions relating to early childhood.

The Following are the recommendations;

1. It is suggested that, as per the recommendation of the NCRWC, a new Article 24A be inserted to Part III of the Constitution to ensure that the child’s right to basic care and assistance becomes an enforceable right. The Article should read as follows: “24A. Every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation” 66.
2. In order to extend the right to education to children in the under-6 age group as well, Article 21A of the Constitution should be amended to read as follows: “The State shall provide free and compulsory education to all children in such a manner as the State may by law determine.”
3. Similarly, it is recommended that the fundamental duty of the parent or guardian to provide education should not be applicable only to children between the ages of six and fourteen. Article 51 A(k) of the Constitution should be amended so that the duty is placed on every citizen “who is a parent or guardian to provide opportunities for education to his/her child or, as the case may be, ward under his/her care.”
4. Section 11 of the Right to Education Act should be made mandatory and should read as follows: “with a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate Government shall make necessary arrangement for providing free pre-school education for such children.”
5. It is suggested that the Maternity Benefit Act be amended in accordance with the forward looking provisions in the CCS Rules, whereby maternity benefits should be increased from twelve weeks to 180 days. Provision of maternity benefits should be made obligatory on the State and not left to the will of the employers and should cover all women, including women working in the unorganized sector. 67.
6. It is suggested that government formulates policy or guidelines laying down minimum specifications of paid maternity leave to women employed in private sector.
7. In order to ensure proper emphasis on the promotion of early childhood development, especially keeping in view that the current approach towards ECD which is fragmented into different schemes and raises issues of lack universality in standards, monitoring and coordination (as pointed out in Chapter IV), it is suggested that a statutory authority or Council for Early Childhood Development (“the Council”) be created. The Council may be composed of officials from the Ministry of Women & Child Development, Ministry of Human Resource Development, Ministry of Finance, Ministry of Labour and Ministry of Commerce & Industry and representatives from civil society active in the field of early childhood development, and other such members as may be specified. The powers and responsibilities of the Council should be specified by law. Similar Councils to be established at State Level as well. The Philippines’ ECCD (Early Childhood Care and Development) Council may be looked at as an example and adapted to the Indian context.
8. The Council must be made responsible for laying down minimum universal standards for quality of services, facilities and infrastructure to be put in place across all schemes and provisions relating to early childhood. 68.
9. Clear provision should be made in the law creating the Council for the allocation of budgetary resources by the Central for the Central Council and by the State for State Council.
10. With regard to Section 6 of NFSA, there is need for evolving guidelines or some methods for identification of children suffering from malnutrition and for referring such children to appropriate healthcare providers. It is suggested that some provision be brought so that the nutrition recommendations in Schedule II of the NFSA could be regularly revised in keeping with the latest scientific studies based on calorific value, age, sex and food items. The Council may be empowered to periodically commission such studies from the appropriate research institutes or organisations.
11. Provision should be made for the training of teachers to provide pre-school education, and there should be a budgetary allocation to fund training programs for the same to ensure quality standards and a proper implementation of the best methods of promoting play and learning. Teachers imparting pre-school instruction should be considered at par with primary school teachers, and this should reflect in the terms and conditions of their employment. This institutional aspect is essential for ensuring that pre-school education be given sufficient importance.
12. It is suggested that every child under six should have an unconditional right to crèche and day care provided, regulated and operated by the State, as found for example in the Act on Children’s Day 69 Care of 1973, Finland. The provision of crèches should be made the responsibility of the State, not of the employer, especially in the unorganised sector.

Read the Law Commission of India 259th Report here.