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Know The Law: How Abandoned Children Are Protected From Exploitation

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When a child loses the emotional, psychological and material support of family, it is imperative that the State appoints someone who can look after their best interests. This includes ensuring access to justice through appropriate legal representation.

The Directive Principles of State Policy enshrined in Part IV of the Constitution of India, cast obligations on the State to provide children facilities, to enable them to develop in a healthy manner, and in conditions of freedom and dignity. It also protects them against exploitation, and from moral and material abandonment.

The UN Convention on the Rights of the Child 1989 reiterates the same, and mandates the signatories to provide appropriate legal assistance to children. The right to legal aid is also legislatively recognised under the Juvenile Justice Act 2015 (‘JJ Act’) and under Section 40 of the Protection of Children from Sexual Offences Act, 2012 (POCSCO).

When a child is abandoned, the Child Welfare Committee (CWC) is entrusted with their care and protection. The CWC, in turn, appoints a ‘guardian’ that the rights of the child are protected. Under the JJ Act, a ‘guardian’ appointed by the CWC is capable of acting on behalf of the child, even during legal proceedings before any authority.

However, this power of appointment of an individual to represent the child during legal proceedings does not solely lie with the CWC. As per Section 15 of the Delhi High Court’s ‘Guidelines for Recording of evidence of vulnerable witnesses in criminal matters’, a ‘court’ may also appoint a guardian ad litem’ for a minor who is a victim of, or a witness to a crime.

A ‘guardian ad litem’ is responsible for protecting a child’s interests during legal proceedings. The Delhi High Court has also provided guidelines for appointment and duties of ‘guardian ad litem’, for which their background, including familiarity with the judicial process, social service programs, and child development, must be considered. Preference is generally given to the parents if they are deemed qualified.

The ‘guardian ad litem’ can be a member of the bar/practicing advocate, but cannot be a witness in the case involving the child. It is the duty of such persons to attend all depositions, hearings, and trial proceedings in which the vulnerable witness participates, make recommendations to the court regarding their welfare, explain to them the meaning of the proceedings.

iProbono’s Intervention

The authority for the CWC to appoint a guardian in the absence of a competent natural guardian was asserted in the case of “Lavanya Anirudh Verma Vs. State of NCT of Delhi”. 

iProbono sought to challenge the Order of the Additional Sessions Judge (ASJ) dismissing applications on behalf of a minor girl on the ground that the petitioner had no locus standi to sign a vakalatnama as he was not the appointed guardian.

The child, at the age of 12, had been abandoned by her mother, sexually and physically abused by her father, and then placed under the custody of “Samarpan Home for Girls” by the order of the CWC. Samarpan’s Director was appointed as her Guardian, making her eligible to appoint lawyers, sign vakalatnamas and take all other requisite steps.

Along with other observations, the ASJ expressed its doubt whether anyone other than a natural guardian, as per the Guardian and Wards Act, 1890, could assume these powers.

The High Court, while setting aside the impugned order, observed that the ASJ failed to notice the implication of the deletion of the words “before that authority” from the definition of “guardian” in the JJ Act.

This change enabled the guardian to represent the child for all legal proceedings, and not just before the CWC. It was also noted that if the ASJ considered the appointment unsatisfactory, it was their/the court’s duty to then necessarily appoint a ‘guardian ad litem’.

This judgment clarified that even a shelter home can fulfil a guardian’s responsibility. Furthermore, it solidifies a child’s right to proper legal assistance and representation, which all courts of law are obligated to ensure. It must be understood that these provisions are not discretionary, and must be read in a manner to ensure that the underlying purpose is achieved.

Through iProbono’s Know The Law Campaign, we hope to bring more attention to these issues pertaining the civil society and help more Indians from disadvantaged sections to understand and avail their legal rights. The article has been written by Iti Pandey, iProbono’s Program Officer.

You can follow us on Facebook and Twitter. Let us know your thoughts about this campaign using #KnowTheLaw.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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