Zen Gunratan Sadavarte, a twelve-year-old from Mumbai, wrote a letter to the Chief Justice of India (CJI), highlighting the death of a four-month-old baby Mohommad Jahhan due to his exposure to the frigid weather of the capital. The infant’s mother used to regularly take him to the Shaheen Bagh protest site, where women in large numbers were holding anti – Citizenship Amendment Act (‘CAA’) protests. The baby’s death raised a very pertinent question in front of the apex court, i.e., should children be allowed to protest?
This piece analyses baby Jahhan’s fatality and how indulging in protests is detrimental to a child’s right to health. It is concluded that it was in the best interest of baby Jahhan that he was not taken to the protesting site as by doing so his mother negligently caused her baby to succumb to excessive cough and cold. Further, it is analysed how this attempt to keep children away from the protest sites has an indirect effect on mothers from participating in demonstrations as India lacks adequate infrastructure to safe keep those children whose mothers are away demanding their rights. Lastly, the paper highlights how this situation can be balanced rightly, i.e., by reviving the improvised Rajiv Gandhi Nation Creche Scheme for the Children of Working Mothers (‘National Creche Scheme’) and putting children who attend protests under a monitored counselling program.
The Case of Mohommad Jahhan
On February 7, 2020, the CJI decided to take suo moto cognizance of whether the involvement of infants and children in the protest sites is appropriate or not, following the death of a four-month infant at Shaheen Bagh, Delhi, later this January.
This headway was undertaken by the apex court after a twelve-year-old, National Bravery Award winner, Zen Gunratan Sadavarte, wrote a letter to the CJI highlighting the aforementioned heart-wrecking incident. She persuaded the CJI to issue directives to abstain children from participating in demonstrations as it deprives minors from exercising their right to life enshrined in Article 21 of the Indian Constitution.
It is pertinent at this point to discuss the fatality in this case. Mohommad Jahhan was a four-month-old infant who every day accompanied his mother to the Shaheen Bagh protest site wherein a prolonged sit-in protest against the Orwellian CAA was underway. On January 30, 2020, baby Jahhan died in his sleep on his way back home from the protest site. Jahhan’s mother stated that the probable reason for the baby’s death was his exposure to the cold waves of Delhi during the coldest winter of the century. This situation compelled the Supreme Court of India to examine the question of whether children should be allowed at the protest sites or not. In turn, the Supreme Court issued a notice to the Union Government and the Government of NCT Delhi to elaborate and formulate guidelines on this issue.
Currently, India has no regulation that restrains parents from taking their children to the protest sites or students from participating in peaceful protests. However, as in the case mentioned above and many other instances such as violence brewing up in Uttar Pradesh’s Muzzafarnagar student protests have inevitably highlighted the fact that demonstrations cause an imminent threat to children’s safety and mental well-being.
Examining a Child’s Right to Protest
In 1992 India ratified The United Nations Convention on the Rights of the Child (‘UNCRC’), which aims to guarantee child right’s to every child in the age group 0 to 18 (minors) irrespective of their race, religion or abilities. It is interesting to note that when we read Article 13 and Article 15 of the UNCRC, we understand that every child has a right to express oneself and, in furtherance of the same, children enjoy the freedom of peaceful assembly. The right to expression and free assembly inevitably encompass children the right to peaceful protest. However, it is significant to note that Articles 13 and 15 are restrictive in nature, i.e., these articles are subject to health. Therefore, if the authorities think that protesting adversely affects children’s health, then children could be possibly restrained from doing so.
Furthermore, Article 18 of the UNCRC mentions that parents have a responsibility to ensure that their child enjoys necessary living conditions, and all the decisions made by the parents for the upbringing of the child should be in the best interest of the child. It is significant at this point to understand the term ‘best interest.’ A reasonable man would acknowledge the best interest theory as what is the best decision to be taken during the circumstance in question. However, the fact that values and social norms are not the same everywhere renders the interpretation of this phrase open-ended. Therefore, it is pertinent at this point to restrict this discussion to the Indian jurisdiction and interpret the theory accordingly.
The values, as mentioned earlier of the best interest of the child, are incorporated in § 3(iv) of the Juvenile Justice (Care And Protection Of Children) Act, 2015. Moreover, in the case of Madhuben Arvindbhai Nimavat and Ors. v. State of Gujarat and Ors. The court laid down that the ‘Best interest’ test requires the court to decide the course of action which serves best to the person in question. In determining the same, the court should take account of two things; first, the interest of the victim alone and no other stakeholders such as legal guardians, and second, the decision should be taken while considering all the social circumstances faced by the victim.
If we apply the best interest theory and examine baby Jahhan’s case, we can inevitably agree that an infant’s exposure to the cold winds of the capital (during the coldest winter of the century) in most of the circumstances, could be fatal. Moreover, the mother’s act of taking the baby to the protest site resulted in his contact with the cold winds and unfavourable conditions that were not suitable for a baby of such a tender age. In doing so, the mother acted negligently and endangered baby Jahhan’s life.
It can be concluded that taking children of tender age to protest sites is potentially harmful to their physical and psychological well-being. Therefore, children of tender ages should be reasonably abstained from participating in protests for reasons doing with their health and well-being. However, doing so can have adverse repercussions.
Drawbacks of Restricting Child RIghts
The NGO, Save the Children, filed a complaint with the National Commission for Protection of Child Rights (‘NCPCR’), raising concerns over the death of baby Jahhan and highlighting how children are being used as props during the CAA protest demonstrations. Further, the NGO demanded that a minimum age criterion should be set, and appropriate authorities should detain parents who do not follow the same. Even so, these strict measures might be useful in decreasing fatalities, another concern that springs up is that this would restrain another important right, i.e., right to speech and expression of the society at large. If children are restrained from protest sites, then this would, in turn, restrain the right to free expression of the child’s mother because in many of these cases there is a possibility that mother is the sole caretaker of the child by virtue of being a part of the nuclear family set up. This provision could even be labelled as an attempt by the authorities to revive the patriarchal setup that pushes women back inside the house rather than encouraging them to raise their dissent in times of arbitrary oppression by the state.
Save the Children’s founder Kumar Sheodhvj Ratna claimed that children at the Shaheen Bagh protesting site were young (while there is no data available to prove so), and therefore, chances are that they might not be well-aware of the cause of the protest. He stated that children are merely being used as props to further promulgate the political propaganda of the adults without being completely aware of the circumstances. However, Ratna’s claim ignores the fact that the term ‘children’ refers to infants and adolescents alike. Children have varied abilities depending on their respective ages and socio-political circumstances, and therefore generalizing this term to a specific group would be unreasonable and demanding. Even the UNCRC does not classify children according to their age group but, on the contrary, categorizes them based on their ‘evolving capacities,’ i.e., to say that a child’s opinion-forming capacity increases with his age and so does the child’s ability to exercise his right. This proves that a child’s maturity and capacities vary differently across different cultures, and therefore choosing age as a yardstick to measure a child’s mental ability is redundant.
Therefore, if the authorities agree upon a complete ban of children from the protesting sites, it is likely to be arbitrary and unjust. However, the state could resort to some other feasible measures to solve this problem.
Striking a Balance between Rights and Restrictions
As proven in the case of baby Jahhan, protest sites could be indeed fatal for infants and young children. However, at the same time, if they are restrained to stay at home, the right to expression of their mothers would also get restricted. In 2006 the National Creche Scheme was implemented to help working women from the unorganised sector in keeping their child safe and ensuing his well-being while the mother is away at work. This scheme not only opened gates of opportunities for working mothers to continue with their careers but also significantly contributed as a child welfare scheme. However, in recent years this scheme’s effectiveness has decreased and this has worried a lot of working mothers across India. Therefore, as there is a rising demand from working mothers, the plan should be revived with improvements to facilitate child care facilities. Moreover, this facility should be extended to mothers who participate in protesting as this is a raising demand recently and solves the aforementioned problem reasonably.
NCPCR issued a notice to the Delhi government to identify children who were a part of the Shaheen Bagh protest and send them for counselling. This might be an effective measure to deal with the traumatic stress these children might face after being a part of a demonstration. However, to make sure that children are aware of the cause of the protest beforehand, counselling for children prior to the protest should be facilitated by the government. This should be done to minimise children from being used as props during these demonstrations. Children of young ages are innocent (in some cases), and there have been cases where they have been used to propagate a particular political propaganda without them being aware of repercussions of the same. For instance, a private school in Gujarat compelled its students to write essays and postcards congratulating the Prime Minister on the enactment of the new CAA law. Therefore, state authorised counselling sessions should be given to young children who participate in protests to ensure their mental sanity.
Baby Jahhan’s death after visiting the Shaheen Bagh protest site is indeed shattering and at the same time, it raises a pertinent question that demands legal intervention, i.e., is allowing minors to be a part of dissent raising demonstrations appropriate? Right to expression and peaceful assembly are subject to health, and the fact that an infant’s health and wellness is his best interest it is the case that children could be restricted from protesting. However, putting a blanket ban on a child’s right to protest would, in turn, have negative social impacts such as discouraging children from raising a dissenting voice or indirectly making it difficult for mothers to exercise their right to peaceful protest. It is also significant to note that if the authorities attempt to fix a minimum age limit for children who can participate in demonstrations it will be an arbitrary measure because children coming from different cultural backgrounds have different maturity and opinion-forming age. Therefore, the authorities should instead consider reviving the National Creche Scheme to help mothers of children of a very young age to attend the protests while their child is safe. Authorities should preferably also make avail counselling sessions to all those children who attend protests to make sure that they are well aware of the situation and are not being used as mere props at the protesting sites.
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 See Supra note 9.
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 Madhuben Arvindbhai Nimavat and Ors. v. State of Gujarat and Ors., (2016) SCC Online Guj 662.
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