October 17, 2016 12:32:50 am
Thirteen-year old Aradhana Samdariya’s death due to observance of 68 days of upavasa (fasting), a customary practice to attain purity, pardon and prosperity in Jainism, reveals yet another facet of lawlessness habitually nurtured by sellers and customers of religious conformism in India. Owing to the political credence accorded to religious groups, the Indian state has chosen to remain strangely ambiguous in its stand against unscientific practices propagated within most of these groups.
They revel in aggressive indifference to the rules of constitutional conduct and have conveniently charted out alternative spaces that celebrate customary conduct premised upon religion or race. The Hindu Marriage Act of 1955 and the Muslim Personal Law (Shariat) Application Act of 1937 are examples of traditional social practices finding their way into the legal and political mainstream.
Though defended by many as integral to Indian culture and heritage, any intellectual assessment would lay bare the incongruity of many traditional practices vis-à-vis human rights. The regressive triple talaq or the blanket dismissal of marital rape is indicative of some of the frailties of traditional law. Historically, women have been at the receiving end of these patriarchy-driven practices.
For centuries, caste-based discrimination, proudly sponsored by Brahmanical traditions, has been responsible for some of the worst forms of human rights violations, cutting across gender lines, in the country. Post-independence, it was institutionally abolished through the enactment of the Scheduled Castes and Tribes (Prevention of Atrocities) Act in 1989. However, fears of political ramifications have possibly been the reason for the survival of some of the most regressive forms of traditional practices in our country.
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A crucial group that has been the silent victim of harmful traditional practices is children. Children constitute about 39 per cent of the total population of the country. Less reported harmful practices that they suffer include female genital mutilation, unscientific male circumcision, ritualistic piercing of the skin and the public celebration of puberty. Children possibly constitute the only group of rights holders, apart from animals and plants, that are solely dependent on the empathy of individuals outside their own group, for making their aspirations heard.
Three years after its adoption in the United Nations General Assembly, sound political wisdom helped usher in the Convention on the Rights of the Child (CRC) to India, in the year 1992. This treaty institutionalised concepts of international law as it pertains to children. Otherwise treated as objects of charity and as the property of their parents, this treaty changed the way the world looked at children. Children were now to be seen as individual human beings and as the carriers of rights. By ratifying this treaty, India committed itself to the pursuit of the standards set forth in the treaty, necessary to uphold the human rights of children in the country.
There have been some progressive policy changes, post ratification. For instance, corresponding to Article 28 of the CRC, the Right of Children to Free and Compulsory Education was enacted in the year 2009. The Protection of Children from Sexual Offences Act was enacted in 2012, with reference from Articles 19 and 34 of the CRC. The Juvenile Justice (Care and Protection of Children) Act (JJ Act), enacted in 2016, drew inspiration from Articles 3, 9, 16, 20, 25, 27, 32, 37, and 39 of the CRC. The Child Labour (Prohibition and regulation) Act of 1986 was amended in 2016 to meet the provisions laid out in Article 32 of the CRC.
However, enactment or amendment of laws doesn’t necessarily lead to effective implementation. The reasons for the lack of effective implementation of Indian laws vary from institutional drawbacks, individual behavioural transgressions on the part of those holding positions of authority, tedious judicial processes resulting in limited conviction, to corruption, lack of general awareness and, crucially, the acceptance of harmful traditional practices as a part of the social and political mainstream.
Aradhana’s death bears witness to the inadequacy of the Indian state to protect the rights of its children. Jain leaders have passed an edict barring the state from interfering in the religious affairs of the community, despite the death of a child. The failure so far to bring to book the parents for violations under the Indian Penal Code and the JJ Act is indicative of the fear of retribution, owing to the influence of the community in the larger political spectrum.
To prevent more deaths like Aradhana’s, India must outlaw all forms of harmful traditional practices. While it is important to preserve and celebrate our rich social and cultural traditions, it is doubly important to ensure that, under the veil of preservation of traditions, the human rights of our children are not infringed upon. We have abolished Sati and the prohibition on widow remarriage. Now we must abolish the practice of fasting amongst children in the Jain community.
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