NICOLETTA FABBRI / FLICKR 1 HAQ: Centre for Child Rights HAQ: Centre for Child and Governance Children Report Based on the proceedings form the Colloquium on Children and Governance November 9-11, 2011 organised by HAQ: Centre for Child Rights in Partnership with UNICEF, India and CRY Published in 2012 © HAQ: Centre for Child Rights Reproduction of any part of this publication for educational or non-commercial purposes is authorised with due credit to the organisation and the source. Suggested citation: HAQ: Centre for Child Rights. Children and Governance. 2012. India Report prepared by Amit Mitra Enakshi Ganguly Thukral Supported by: Ford Foundation HAQ: Centre for Child Rights B1/2 Malviya Nagar New Delhi-110017 Phone +91 (0) 112667412/3599 Telefax: +91(0)1126274688 Email: [email protected] Website: www.haqcrc.org 2 Table of Contents 1 Laying the Ground: Good Governance 7 2 Children and Governance 11 3 Children’s Participation in Governance 13 4 Monitoring State Performance 17 5 Law, Policy and Judicial Activism 19 6 Role of Independent Human Rights Organisations and Ombudspersons 21 7 Decentralisation 22 8 Discrimination and Exclusion 26 9 State Abdication of Responsibilities: Education and Governance 31 10 Measuring Governance for Children 32 11 The Way Forward 33 ANNEXURES 1 The 2009 Colloquium 34 2 Opening Address by Karin Hulshoff,Country Representative, Unicef 37 3 Children of Asia: How to ensure their rights? Turid Heiberg, Save the Children 39 4 Child Rights and Children’s Participation, Rita Panicker, Butterflies, India 44 5 Child-Friendly Local Governance, Nepal 54 6 Role of Judicial Activism in Child Rights, Justice Imman Ali 62 7 Reflections on State Obligations to Children in South Asia, and Accountable Governance, Savithri 66 Goonesekhere 8 Programme Schedule 71 9 List of Participants 74 3 4 Preface On July 21-22, 2009, HAQ: Centre for Child Rights organised an Children and governance International Colloquium on Children and Governance: Holding States is about the recognition Accountable. Participants from Ethiopia, South Africa, UK, Nepal, Sri Lanka of children as citizens and India shared their experiences of monitoring government’s performance in their own right, in realising child rights and ensuring the participation of children in therefore rights holders. governance. (See Annexure 1 for key recommendations of the colloquium). Fundamental to this recognition is State Since the 2009 colloquium, two other meetings were organised by UNICEF action by formulating and Save the Children along with their partners in New York and London. legislation, policies and The African Child Policy Forum, drawing upon HAQ’s methodology, programmes and also produced “The African Report on Child Well-Being-Budgeting for Children” implementing them and organised a conference on this subject. HAQ has since brought out a through the executive, book (Every Right for Every Child: Governance and Accountability, published legislature and the by Routledge) drawing upon experiences from across the world and across judiciary. It has been sectors on this subject. HAQ has developed a ‘Child Rights Index’ for India, recognized across the to rank the states according to their performance on realisation of child world that improved or rights across different sectors. It has also developed a Beginners’ Guide for good governance is a pre- Budget for Children Analysis.1 condition for sustained poverty reduction and Against the above backdrop, HAQ, supported by the Unicef India Country a peaceful society. A Office and Child Rights and You (CRY) organized a colloquium, to follow up commonly accepted and take forward the discussions initiated in 2009 and linking the same to definition of governance similar efforts in other parts of the world. The Colloquium was held in New is the way the State Delhi between November 9 to 11, 2011. Thirty five participants from six positively exercises its countries apart from national participants, including the chairpersons from political administrative the State Commissions for Protection of Child Rights from four states in and economic power. India intensely deliberated the issues for three days. Enakshi Ganguly, proceedings This report synthesises the deliberations of the Colloquium. In what of the Colloquium on follows, the key points of emerging from the major themes discussed are Children and Governance. Holding State Accountable. summarised. The issues related to law, governance and children (Rule of July 20-22, 2009 Law, Social Norms and Policy Coherence/Child Sensitive Judiciary and the Role of Judicial Activism in Child Rights) have been clubbed together. It also draws upon other relevant discussions on the issues on governance and children, though they may not necessarily have been raised in the Colloquium. They are nonetheless important in the context of the ongoing discussions on children and governance and hence can help build our understanding on this very important subject. An overriding concern of the Colloquium, cutting across all the themes, was how to make the state accountable and prevent the governments from abdicating its prime responsibility not only for upholding the rule of law but also as prime duty bearers to ensure the rights of children in favour of non-state actors. The other major issue related to measuring or developing indicators of good governance in a rights based framework as distinct from welfare oriented one. 1 HAQ: Centre for Child Rights and Save the Children., 2010 : Budget for Children Analysis. A Beginners’ Guide, New Delhi, India. 5 6 1. Laying the Ground: Good Governance “Governance is a multifaceted concept that focuses on the interactions between the government in its various forms and the people. Exact definitions vary across organisations. To the UNDP, “governance can be seen as the exercise of economic, political and administrative authority to manage a country’s affairs at all levels. It comprises the mechanisms, processes and institutions, through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and mediate their differences.” The World Bank defines governance as “the traditions and institutions by which authority in a country is exercised for the common good. This includes (i) the process by which those in authority are selected, monitored and replaced, (ii) the capacity of the government to effectively manage its resources and implement sound policies and (iii) the respect of citizens and the state for the institutions that govern economic and social interactions with them.”1 1.1 Global Movement towards Good Governance The concept of governance is not new and countries across the world have their own forms of governance as well as reforms in governance. However, of late, the term has come to receive greater global attention, with a recognition of the need to establish what is commonly referred to as ‘good governance’. This shift, especially in the development sector, was a consequence of international financial institutions and donors to establish a basis for investments or donations for a cause. Discourses on good governance led to the evolution of indicators to measure the states’ performance – a move that has often been wrongly criticised for being based on standards common to western democracies as measures of goodness in government. This has been accompanied by global attempts to analyse diverse perspectives and situations and establish universally accepted standards and indicators and also those specific to different socio-cultural, economic and political contexts. Discussions on ‘good governance’ led to indicators for measuring state performance in this regard. As one of the criticisms against these indicators has been that they are based on the standards that are common to western democracies as measures of ‘goodness’ in government, globally attempts are being made to look at the different perspectives and establish both universally accepted standards and indicators as well as those specific to the different socio-cultural, economic and political contexts. Both ‘governance’ and ‘good governance’ are also now being viewed and analysed in the context of different groups of people, especially the more vulnerable. Children and their concerns however, have failed to find adequate space in these discussions although governance and the realisation of the rights of the child are intrinsically connected. Essential characteristics of good governance as recognised through international discourse so far include: 1. Participatory, 2. Consensus oriented, 3. Accountable, 4. Transparent, 5. Responsive, 6. Effective and efficient, 7. Equitable and inclusive, and 8. Follows the rule of law. 1 Save the Children, OECD and Unicef, 2011: Child Rights and Governance Round Table: Report and Conclusions, Unicef Innocenti Research Centre,Florence, Italy 7 1.2 Children’s rights and good governance Good governance, though a necessary condition, alone is not sufficient. What is needed is a rights approach, as distinct from a welfare one or a total paradigm shift in the approach to the child. It has to be remembered that when societies or governments deal with children, it is not doing them a favour. A child is a bona fide citizen with full human rights as much as an adult citizen – an oft forgotten fact that leads to relegating any action concerning children to the realm of charity and goodwill.2 Children’s rights to protection from violence, abuse and exploitation are clearly laid out in international law, the legal