India has placed 43 out of 197 countries when it comes to ease of accessing justice for children, according to a new, first-of-its kind report.
The report was put together by the Child Rights International Network, a global research, policy and advocacy organisation. It looked at legal systems across the world and their effectiveness in protecting child rights.
India emerged ahead of the US (51) in the rankings, but behind several European and Latin American countries. While India achieved an overall score of 64% across four broad parameters, Belgium topped the table with 81.6%. El Salvador (19), Bolivia (24) and Honduras (29), were among those ahead of India.
The parameters used to derive the score included the a country’s implementation of the United Nations Convention on the Rights of the Child, a child’s legal status, the remedies for challenging rights violations, and practical aspects such as legal aid, opportunities for giving evidence, among others.
India's worst score was in implementing the Convention of the Rights of the Child, considered the cornerstone of children’s rights globally. India has signed and ratified the Convention but has failed to adequately implement it, according to experts. India achieved a score of 13 out of 40 in that parameter.
“Had the Convention been incorporated into national law, without reservation, in a way that makes it superior to other laws and directly enforceable in the courts, India would have been near or in the top 10 countries in the global ranking,” said CRIN director Veronica Yates, via email. “Although the Convention is frequently cited by the courts in India, it only has persuasive value of a guide to interpreting national law. Children and their representatives are not able to rely on the Convention directly as it has not yet been ‘incorporated’ or made part of national law.”
Yates said that India could have scored better had it ratified the third Optional Protocol to the CRC “which would allow children to direct complaints of rights violations to the UN” in case this not possible at the national level.
The report found that while in 42% of countries, the convention took precedence over national legislation, “overwhelmingly those within the Commonwealth such as the United Kingdom and India, have made it clear that where national law clearly conflicts with the Convention, national law must be applied”.
For instance, the new Juvenile Justice Act that allows 16 to 18-year-olds to be tried as adults in some kinds of heinous crimes such as rape and murder, is in contravention of the Convention, which requires that all under the age of 18 years be treated equally. The report’s period of study was until November 1 last year, before the new law became effective
“The recent reforms to juvenile justice laws have undoubtedly been a regressive step and will affect children’s access to justice,” said Yates. “Justice systems should always take the specific vulnerabilities of children into account, and it is never appropriate to try a child as an adult.”
Despite the blip, India has done well in several other aspects of children’s access to justice. It was one of only nine countries to score full points for court powers and one among a handful of countries that allows for legal aid to be automatically available to children.
Other positive measures include the possibility of public interest litigation, courts initiating proceedings of its volition and the requirement to keep the identity of the child secret. It did best on the parameter of challenging child rights violations, scoring 48.5 out of 56 on this count.