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Children and Justice - Krishna Kumar


This lecture was delivered as part of the 6th annual History for Peace conference titled 'The Idea of Democracy' which was hosted in Calcutta through August 4, 5, and 6, 2022.

The lecture today is about a late entrant into the discussions of democracy—namely the child. When one uses the words ‘the child,’ one is unsure whether to use the definite article because who is the child? The question of in whose eyes and where necessarily follows when speaking about children. They are a late entrant in the discourse of democracy and the debates surrounding democracy for various historical reasons that are specific to different societies. Therefore, drawing a general, universalistic theory as to why childhood is still a marginal subject in our discussions on democracy is quite pointless. According to eminent authorities in European history, childhood, as a social category, did not exist until around the eighteenth century. If we consider that analysis, childhood is still not a social category in many other societies. We recognize the biological child, but treating children as a social category means entering uncharted territories, some of which we will examine this morning.

Let’s start with this question of justice and right—two very important ingredients of any discussion on democracy. The expectation of justice is part of being human and throughout most of human history, institutions of justice were not seen as capable of providing justice to all human beings. In many religions, religious traditions and literature, you come across this feeling expressed either through characters or as edicts, such as ‘Only God can do justice.’ However, modern conceptions of justice offer some scope and hope that human beings can anticipate justice from the institutions of justice that are part of the modern state.

In that sense, if we apply this idea to children, we encounter the first problem that we will examine in greater detail later—the problem of approaching the institutions of justice. Typically, in modern societies, institutions of justice administer justice when somebody presents themselves, which is not something one can expect from a child. If institutions of justice were to provide justice to children and address their interests during distressing moments, these institutions would have to approach the child or consider children rather than wait for children to be brought to the institution. In some cases, parents do bring disputes over, for example, a child’s custody when a marriage has broken down, to an institution of justice. However, this is a very limited example within the broader discourse we will discuss today.

It is highly unlikely that children who have experienced injustice during childhood will seek any kind of justice from institutions of justice. Even more complex and immediate problems arise when you consider the concept of ‘right’ as an essential aspect of being an individual living in a democratic society. What does the word ‘right’ mean for a child?

To start with, we can contemplate rights—any right—through two notable features. One aspect is the awareness of possessing a right: for a right to be effective, this awareness must be shared by all. For instance, if women have rights, then men should be aware of it. Rights are most effectively protected when everyone knows each other’s rights so well that there is no need for reminders. If someone has to remind others, it indicates that either a potential violation has already taken place in their mind or the right has indeed been violated. If that is the case, the second aspect of a right becomes important, namely, when a right has been violated, it must be asserted by the person who has endured this violation. These two aspects are fundamental and significant in any consideration of the term ‘right’—the awareness that I have this right and others also have this right. Additionally, the ability and capacity to assert it.

Now, as teachers, I am certain you have already observed that neither of these two features applies to children. To expect children to be aware of their rights is to overlook a significant part of childhood. The long span of human childhood begins in infancy and extends into early childhood, pre-puberty, puberty and early youth. At what point do we imagine that a child will become aware enough to recognize that they have certain rights, making the second feature applicable? Namely, the child becomes conscious of the right to the extent that the potential violation of that right is also a matter of their consciousness. The likelihood of this second aspect decreases even further because if any of a child’s rights have been violated, it is improbable that such a child will be capable of asserting their right in a way that allows for potential redress or compensation.

Now, this is an intricate question and to delve deeper into it, we may need to remind ourselves of the wide range of social origins of distress, suffering or injustice experienced by children.

These social origins can be divided into categories in several ways. No matter how many ways you use these category systems, you will always feel that they are interactive and overlapping and they can’t be exclusive categories as such in the case of children. Let’s start with economic sources of distress. Immediately, we can notice two aspects within it. First, the source of problems in the economic structure of a society and we can distinguish this from the other source of distress for children, namely sources of economic distress that lie in economic relations among adults. Both of these are very significant due to a certain issue that we’ll be discussing later on, which is the role of the state. It’s quite crucial in the first case to examine both the economic structure and how its decisions and policies shape that structure. The economic structure determines the extent to which extreme poverty will be tolerated or alleviated, among other considerations. Economic relations, on the other hand, are more intractable from the point of view of the state because society and its culture are involved in economic relations. Besides preexisting conditions that are inherited by any society at a given point in time from its history, economic relations tend to be inherited and also reproduced. Reproduction is something so subtle, quite often invisible, that it can be conceptualized by looking at how children become accustomed to certain economic relations as part of their early socialization in childhood. Early socialization, also known as primary socialization, occurs when certain ideas and practices become imprinted on the small infant’s mind either during infancy itself or early childhood. Economic relations are reproduced as early as that.

Now we move on to a second source of distress that may be suffered by children during childhood: culture. In the economic case, we have talked very briefly about how the economic structure renders some people almost irretrievably in the category of the poor, and poverty brings its list of features like chronic malnutrition, disease and vulnerabilities of different kinds. We recognize these and expect the state to do something about it. In the context of cultural sources of distress, it appears that there is a clear limit that states are hesitant to cross. This applies not only to colonial states but also to states that emerged after the end of colonialism, once it was declared politically obsolete in a society. We observe that cultural sources of distress have historically posed significant challenges for states and their representatives, making it uncomfortable for them to address these issues head-on. The cultural context itself gives rise to various problems. Consider gender relations, for example—certainly a major aspect of cultural sources of injustice during childhood. Enormous consciousness, research literature etc. exist now to tell us that the word childhood doesn’t apply to girls in the same way as it applies to boys. Sometimes one wonders, do girls have a childhood? They certainly have infancy and, in some societies, parts of societies, they may even have early childhood, but does their childhood compare with that of boys after early childhood or even during early childhood? It’s a moot question. It’s not as if somebody is actively involved in distinguishing the lives that little boys and little girls must lead or the types of pain and suffering they must endure in the life of the family or community. No. The idea is imprinted in the culture itself, embedded in day-to-day cultural practices to such an extent that it is very difficult for us to imagine that a child will escape. The inescapability of that cultural imprint is part of being a child: when you are not only physically dependent but also emotionally and intellectually dependent on adults—parents, other relatives, the kinship structure and so on. By the time you are conscious of such things, a very important part of childhood is already over.

If we take a closer look at another aspect of culture specific to South Asia, namely, caste, we can explore how caste relations, an integral part of the cultural framework, are passed down during childhood. Different viewpoints on this topic exist and it is evident that caste relations are transmitted even during infancy, particularly in the interactions between ‘upper castes’ and those outside the caste system, such as the avarna or untouchables, who hold specific roles within society. In other societies other forms of understanding are embedded in the hierarchy or unequal structures of society. But in our case, caste is particularly tenacious. Its capacity to reproduce its predisposition is remarkable because it has stayed tenacious for a long time and finds renewed ways to rejuvenate its tenacity. This tenacity holds through the phenomena of early socialization. One hears sometimes that people think children can’t relate to caste-related knowledge. This is simply not true. By the time later socialization begins and children come to school, they very much know what it means to be born into a certain caste. Their levels of knowledge and awareness may differ, but the fundamental awareness is there. What kinds of discriminatory practices follow from that knowledge that becomes inescapable during childhood, one can discuss at quite some length. By the time children are at primary school, the awareness deepens so much that if a teacher announces, ‘Children who got a scholarship please stand up’, even six-year-olds can be seen standing up. They know they are scheduled castes and therefore they have a scholarship and others also know that these are the children who belong to those castes which have certain state-given benefits today. That awareness is fully reinforced by school practices of various kinds including quite blatantly discriminatory practices such as keeping the poorest children or the lower castes entirely out of a certain kind of school. So, cultural institutions can be a source of unjust treatment. Or maybe there is no immediate awareness but awareness dawns when it is a bit too late and nothing much can be done about it at that time. Even that is a part of childhood, to realize that when I grow up I will do something about it because right now I can’t. Even that consciousness is an increasingly rare consciousness among children.

Let’s move on to the third common source of distress: it is an aspect of life in our times and is becoming increasingly denser: this aspect has to do with what you broadly call industrialization but ideally should be called ‘vikas’ or development, which results in massive upheaval in the lives of a very large population of people, including their children. Consider the construction of a major dam like the Sardar Sarovar Dam. It has displaced tens of thousands, perhaps lakhs of people from where they were living to places where they have no standing, no place to work etc. Consider projects like the Singrauli Thermal Power project or major industrial units that come up by deliberate displacement. Of course, in all such cases there are struggles among adults for seeking compensation and the state on many occasions has provided some kind of compensatory mechanism in the name of justice at least. Now, if you look at any of these exercises to provide compensatory justice, you will find that they rarely include the assessment of what this experience might have meant to children. Here we must return to our earlier mention that there is no such thing as children—you have infants, slightly older children, prepubescent children or adolescents.

At what point a displacement hit you has tremendous relevance for what consequence it might have. Supposing displacement from a functioning village to the outskirts of a city takes place when you are an infant, this displacement will cause anxiety at the least, perhaps also considerably chronic hunger, unemployment and malnutrition. The consequences of these for an infant or a baby are far greater than they might be for an adolescent. And so, in this spectrum of childhood, it is very important to consider compensatory justice from the point of view of evaluating what this displacement would mean for x number of infants. I have never come across a survey of those displaced or forced to be evicted that includes the exact number of babies or children at the time the displacement took place. This kind of categorization does not exist. The broad assumption is that the compensation that is given in the name of justice to parents will somehow be adequate for their capacity to look after their children. And this is where a very important conceptual leap takes place in the assumption of the state: that children are not directly its responsibility, children are essentially the responsibility of the family and if we take care of the family by looking after those who run the family—namely, parents, then children will be taken care of. This assumption is of course flat and flabby and has very little room for an exact assessment of the nature of injustice suffered by children during their childhood and the capacity of any compensatory package of doing some justice in proportion to the injustice done.

For example, it has been widely acknowledged worldwide that overcoming malnutrition during the first three years of life is an extremely challenging task, often with long-lasting effects, if it is even possible at all. Similar arguments can be made regarding another topic that will be explored in greater depth, namely education. If a child is forced to leave their previous school due to displacement and attend a new institution in an unfamiliar location, the impact on their learning can be profound in numerous ways. The Covid-19 pandemic has familiarized us with the concept of learning loss as if we can precisely measure or evaluate the extent of this loss. Just the notion that a child has to transition from one school to a completely different school, potentially in a different cultural environment and language context, is an overwhelming idea that requires careful consideration of its implications for the child or group of children involved. Therefore, this third category of distress experienced during childhood presents its own set of complexities and thus far, we have only scratched the surface of this issue. If we were to delve even slightly deeper into the context of tribal children, we would encounter an astonishing array of concerns that demand our attention. Evaluating the nature of the challenges faced by children in various regions of Chhattisgarh, Jharkhand or the North East alone would consume a significant amount of time and rightly so.

Political forms of distress can also fall under this third category, where industrialization or state building or development brings about numerous historical changes in the lives of children. There are some documents now that inform us about what happened to children during Partition and what measures were taken after Partition in both India and Pakistan and later on in Bangladesh, to provide some level of justice to the children who suffered during that time. In Kashmir, certain NGOs have made efforts to assess the experiences of growing up in Kashmir over the past 25–30 years, including the physical and psychological trauma that children have endured in their journey of education and how it has shaped their lives. This is an undertaking that should have been the responsibility of the state, but it has been delegated to NGOs. Let’s pause for a moment and consider what all of this means for the categories through which we perceive these forms of distress. Perhaps one day, we can envision them being accurately assessed and compensated. As mentioned earlier, children’s awareness of the rights that have been violated or whether they had any rights, to begin with, is limited. After all, they are still in the process of becoming citizens, not yet fully-fledged citizens. In my recent book, I have referred to them as smaller citizens, both in terms of visibility and understanding. The notion that they possess rights and that these rights have been severely violated, whether through cultural conditions, economic structures or political and economic events of various kinds, is undeniable. However, it is rare to see children becoming aware to some extent of these violations and asserting their rights.

Debates of this kind often lead to a word that is quite intriguing to explore, a word that has been borrowed from religion: conscience. Primarily, it is argued that children’s rights to grow up and receive an education, among other things, cannot be effectively safeguarded by the children themselves, particularly when these rights have already been violated. Instead, they depend on the conscience of society. To what extent will society be able to protect children’s rights, assuming they possess such rights? The notion that children have rights has gained considerable popularity, especially thanks to the UN, which has established a convention on children’s rights that encompasses a wide range of rights. UN documents generally exhibit generosity and great imagination and this particular document is an impressive declaration of intent. However, for us to recognize the implications of any of these rights, even the most fundamental ones such as the right to life and adequate nourishment—let alone the right to live with dignity, free from harassment, fear and so forth—we must consider the reliance on society’s conscience, invoking a concept that remains largely unknown. Nowadays, in modern terminology, we view this as a measure of the extent to which society possesses elements of civil society within its framework. The term civil society has somewhat been hijacked in recent times and it is now commonly and conveniently equated with NGOs. However, civil society is an amorphous concept that resides in the collective consciousness of a society. The true measure of a civil society lies in the extent to which it possesses and exercises this conscience I previously mentioned. If society were the sole protector of children’s rights, it would be insufficient, particularly in cases where the state itself has caused displacement, violence or various other forms of distress that children have endured has been caused by culture—culture which provides society and its communities a sense of identity, sometimes a sense of pride, sometimes a sense of status. In situations where culture itself has perpetuated injustice upon a significant number of children—examples being children from lower castes or girls—how can society’s conscience adequately compensate for the injustice suffered during childhood?

Similar things can be said about economic structures and economic relations. If a society has inherited a certain stratified structure which permits economic relations to be so exploitative that a vast number of children can’t have nourishing food during the time they are infants, how can such a society depend on this element of conscience alone for safeguarding children’s right to be protected from hunger which is now a universal right to which every country including ours is a signatory? So it is very clear that conscience is not enough. For that reason, one turns to the state, as a custodian you might say of children. Like it’s a custodian of the welfare of all of us, it’s our creation—we gave ourselves a state, as the Constitution famously says so that we can transform ourselves so that we can live up to our ideals or at least our memory of ideals, values and so on. The state comes fully into this picture and once we bring the state into this picture, it, unfortunately, becomes even more complicated because you then need to look at what is the state and what exactly is the state’s instrument of justice. If justice is to be done to children during childhood in a manner that justice means something, then we must look at the institutions of the state that provide justice.

Now, here a very interesting and special feature must be noted. During adulthood, if institutions of justice take time and they rightly demand time so they can look at all aspects of a dispute or distress, such time is more endurable. In India, we are quite generous about this endurance. We allow people to wait for any length of time—sometimes twenty or thirty years and there’s no compensation for those years of injustice. But consider childhood from that point of view.

Childhood is a fast-moving stage of life—fast in the sense that one doesn’t return to earlier stages ever. So, if an infant has lost something during infancy and institutions of justice try to do something about it, they must move at a speed with which they are not familiar, to be able to provide justice before the infant has turned into a child. Similar things can be said about early childhood. If a child has not gone to school despite the right to go to school and instruments of justice provide some justice in two years—which would be quite remarkable in fact—then those two years may be too late from the points of view of several kinds of experience that should have accrued to this child during that period. The opportunity to return to an earlier stage of learning is something that schools hate to provide in each of the four crucial segments of the curriculum. Very few teachers take kindly upon children asking questions which belong to an earlier stage of their expected learning. Those of us who teach in colleges and universities scoff at schools for not giving students the knowledge they ought to have given them before they showed up in our classroom. This is an example of how compensatory mechanisms of justice wouldn’t work since childhood is a moving spectrum. It doesn’t allow the stability of consideration or time to think for very long about how justice ought to be done, which is a major problem. But this is not the only problem. Consider the problem of how institutions of justice work. In our case when we discuss the state and explain it to children themselves, we typically like to divide the state into three categories. We say there is a legislative arm of the state, the judicial arm of the state and then there is the executive arm of the state. Now among these three arms, it’s very interesting that the judicial arm acts only when somebody shakes that arm. The other two are the more active arms as they are supposed to run the state.

The judicial branch accepts the limitations of the two branches. If you look at it in historical terms, consider the Constituent Assembly debates on why education could not become a fundamental right when the Constitution was promulgated in 1950. At the time, when the spirit was so high, expectations were great as was the excitement that India had won independence despite all odds, the Constitution did not give the right to education to children. Instead, it made it the state’s duty, offering a directive principle to the state depending on the state’s conscience. But when this matter was discussed in the Constituent Assembly, a very interesting word was used by several members, that this cannot at this moment be treated as a matter of eligibility of our children for a right because it will depend on the state’s financial capacity. This notion that the state has a limited capacity and the judiciary will take cognisance of that limitation has run through judicial discourses ever since then and has increasingly become more prominent. The kindness of the judicial branch towards the legislative and the executive branch is remarkable in terms of judicial mercy—of course, it existed even before independence—consider the Child Marriage Act and the Sharda Act which were passed so much earlier in pre-independent India. This remarkable legislation of the British colonial period of our history was so considerate that implementing this particular law will be done in a ginger manner and compensatory mechanisms will not necessarily follow if the right to be protected from early marriage is violated. No distinction was made in the right self in the Child Marriage Act itself between boys and girls, even though the Joshi Committee which had drafted the original bill had hundreds of petitions saying that the consequences of early marriage and early pregnancy for a small girl are far greater than any consequences that a child groom might suffer. This hasn’t been made even to this date even though the act has passed through reformulations over time, the latest one being in 2006. And for various reasons, the act continues to be a kind of reminder about our collective conscience rather than an act which is actually in any sense implementable or which has seen some history of implementation that is significant. These are just simple examples that might help us enter a territory which is so central to our audience of teachers today.

Right to Education (RTE)

The Indian government took a hundred years—if you include in it the period of colonial control—to legislate the right to eight years of compulsory and free elementary education for every Indian child. That figure of a hundred years itself indicates to us the depth of reluctance and hesitation if not clear unwillingness to give children this right. Since 1911, when Gopal Krishna Gokhale had moved a certain bill in the Imperial Legislative Assembly, to the year 2010, it’s exactly a hundred years since this right became a somewhat implementable right. This history is not worth going into in much detail, it’s a fairly sordid history of which we need not be fully cognisant today—there are days when we are all supposed to be proud of our history no matter how difficult it is to feel any pride. Gokhale’s bill could not be passed but even in 2010, while the bill that did get passed was fairly comprehensive, the ways to implement them were not altogether comprehensive or clear. It’s a remarkable social policy law if you go by the extent to which it covers children’s right to education. In the sense that it provides structures of authority which were implemented, structures of guardianship of how it will be implemented and who will assess whether it is being implemented. It also provides for remarkable safeguards to certain problems of serious injustice that our school system has been known to cause in children’s lives, the most significant parts of which are in Articles 12 and 29.

Chapter 5 is the most remarkable part of this act: this is the chapter which speaks about what has to happen for education to mean something in a child’s life. One can’t think of any legislation around the world that goes into such depths—pedagogic depth, curricular depth, treatment depth as to what should happen in the classroom so the purposes of this remarkable social policy law are achieved. Now that itself is quite a remarkable indicator that the lawmakers wanted to ensure the school system takes this law seriously. They were afraid they wouldn’t, that the education system may provide nominal compliance with this law without much substance in it. To safeguard against that possibility which existed in the unconscious minds of the lawmakers or the drafters of this law, led to this Chapter 5 which provides for how teaching will take place, how curriculum will be developed and how evaluation and assessment will take place. All these are very controversy-riddled areas of British education and history. The fact that Chapter 5 articulates the importance of making sure that no child is harassed, no child is made to suffer and fear (in the sense of pressure) tells us volumes about what happens in our schools. The fact that Chapter 5 outlaws annual exams till grade 8 tells us something about the examination system, which for a very long time, nearly a century, called it documentation and was responsible for throwing children out of school. Then of course corporal punishment is fully banned. The curriculum is supposed to be within the four walls of the values enshrined in the Constitution. All of these are articulated very carefully in legal language in Chapter 5 of this remarkable social policy law.

Then we come to the guardian of this notion of the law: the institution NCPCR. It stands for the skeletal system of the new age which is designed not to have its library or its memory or even any permanent staff. These are new-age institutions which bring great name and pride to us because we have a national commission and yet the institution exists only in a skeletal form. As staff finishes their contracts, there is no provision of institutional memory of any kind. This institution is supposed to safeguard the implementation of the Right to Education Act. No wonder that even though the right has taken a hundred years to reach India’s children, it has taken less than ten years to get diluted. After 2010, the SSA, which had brought India close to universal enrolment at least in the primary stage, was already in its declining years. By the mid-second decade of our century, the momentum to implement the Right to Education was slackening off both financially and in terms of administrative encouragement to the state. The usual issues that come up in a federal republic like ours—whether it is the Centre’s responsibility or the state’s—came up for this law as well. On certain matters where certain states were particularly vexed about the law, the Centre very kindly diluted those clauses, most famously the clause about an annual examination being banned until Class 8: it has now been removed from the clause. Instead, states can choose to have annual examinations and lo and behold, which state led the country in providing for examinations right from Class 1? It is the state that is not a full state, namely Delhi. Then other states followed.

Similar concessions have been made for several kinds of schools. Many schools, to begin with, didn’t have any reason to fulfil that remarkable clause—Article 12 of this law—namely that for this law to be implemented every privately run school will provide 25 per cent of its seats to students from economically weaker sections of society. Right from the time this was announced, many of our most enlightened schools felt that this would be a question of sacrificing national security. They started to fight against it tooth and nail, first in the high courts and then in the Supreme Court. It speaks for the glory of the Supreme Court that it finally disposed of these petitions and did not provide exemptions except to certain schools. Schools that now are affiliating at a great speed to international boards like IB in any case do not have to observe this clause. Many others are very reluctant to do so, especially because they are not allowed by this law to have separate sections for those children who come under this category. The law says that these children must be part of the regular class, you can’t do a separate afternoon session with them. This has proved distressful even for the so-called more progressive schools. In many parts of the country, cases against these continue even though they have been disposed of. Directorates of education have tried to look the other way when seats for these 25 per cent reservations are not filled up. Most of our schools and India’s intelligentsia think that the purpose of this 25 per cent was to do some good to the poor. It’s exactly the opposite of what the purpose was. From all over the world, there is plenty of evidence in educational theory that schools become more effective when classes are more diverse. Teachers become more imaginative when they deal with children from diverse and different backgrounds. The curriculum gets more meaningful and interesting when children bring diverse experiences as part of their voice. The idea of this very small percentage—25 per cent is nothing in numerical terms—was itself an act of compromise, a great compromise for a society where dropout rates (we call them elimination rates) were so high and seats in government schools were already so full that pupil–teacher ratio of schools run privately and those run by the government were and are simply not comparable. Even though this was a very moderate extent of reservation, it has proved the most difficult part.

Now having discussed this law very briefly, let’s talk about what happens if this law isn’t implemented, which has already happened. Covid provides divine grace to those who were pretty pressured by this law. These long two-and-a-half years have been a kind of bonanza for institutions that didn’t want to look too deeply into this law and its various provisions. Already referral to this law had become less important because estimates of financial outlays made by experts like the late Tapas Majumdar had been ignored repeatedly and the Centre’s money to the states for the specific implementation of this law had stopped flowing after the fourteenth finance commission that redistributed the finances available to the state—I don’t want to go into the technicalities of the matter. But the slowing down of the implementation of the Right to Education (RTE) has been greatly speeded up by Covid and we are now in a position where it looks as if RTE itself was a leap of imagination. Today we are in a position where we can take very little solace from the possibility of judicial intervention in the implementation of RTE. Yes, several cases have gone to courts over the last twelve years or so since the Act was promulgated but most of these cases are about admission. No case has come to any court at any level regarding Chapter 5 which is the defining chapter of this law because that’s where education, in any substantial sense, is presented as the necessary aspect of this law. Even if you consider these modest cases that the judiciary has dealt with, in every case the judiciary has been able to look at the injustice done to a child who could not be admitted to a school only when somebody else brought this child to the court’s attention. And this you can imagine was the case of more conscientious NGOs, sometimes a conscientious lawyer.

On its own, the Judiciary has not found ways in which to critique the implementation of this law. This is not something the judiciary traditionally does in our country. If it does sometimes, it is described as being an activist or exercising some sort of overreach but I don’t think even those alibis can be used for why the judicial institutions have not considered their responsibility to see to it that India’s children do get this right in any meaningful sense. Their critique of the State’s financial capacity, its economic policies and its economic priorities has to wait for perhaps a long time. Where does the state spend its money? We have fairly accurate proof to say that over these 12 years of the promulgation of the RTE, considerable money has been saved from being spent on India’s children and has been spent elsewhere, on more immediate priorities. Or immediate at least in the sense in which visions of development make them immediate, like the construction of an incomplete flyover or various other forms of comfort and convenience for the Indian middle classes. The economic structure which we spoke about much earlier today ensures that this single law provides a sort of—I hate to use the word—‘hope’ to India’s children to avail a practical possibility of a right which they have awaited for so long—that possibility remains quite muzzled as a result of the economic structure itself. If you don’t take into account the other two sources of injustice and distress to a child, judicial institutions will have to be completely redefined in terms of their perspective on their participation in the state, as a structure for them to be able to do something about a citizen who is not fully a citizen, namely the child, who cannot either be fully aware of the right until it has become already too late or who is not capable of asserting these rights in the circumstances he or she might be able to. The judicial institutions are not in the habit of taking into account that it’s their role to deliver justice to somebody who otherwise cannot come for justice.

Another distinction at this final point needs to be made. We cannot compare the case of children with the case of adults who also may not be aware of their rights or in a position to assert the violation of their rights. Say somebody might take the case of an illiterate person or a person belonging to a tribe which lives in a remote area of the country. Given the fact that such an argument applies to adults from such communities, there is a potential for these adults to be brought to the point where they can be made aware of their rights and made assertive enough to be able to seek justice. Neither of these two possibilities applies to children. They are a dependent category of citizens. The fact that the Indian Constitution gives them so little space is its limitation. But now the Constitution has been amended and in such a legally solid manner, because the article that now provides RTE for these 8 years of childhood from age 6 to 14 is tied to another very major fundamental right that the Constitution did provide in the moment of its inception, namely the right to life. It was the manoeuvre of the Supreme Court which had in the ’90s brought this matter closer to becoming a right by saying that a life is not worth living if it is without education. The right to life means something only if it is a life with dignity and it is education that creates this possibility of dignity being achieved. Now these are very lofty and important thoughts from the point of view of the law but also from the point of view of the cultural history of a society which has in a way woken up, to a certain but inadequate extent, to the fact that children are an important part of the republic.

Today we feel very unhappy with the state of the republic—we forget that there was a flaw in our ‘great expectations’, to borrow Charles Dickens’ title; our great expectations were based on inadequate recognition of a terrible gap in the way the consciousness of society and the state were defined in the critical moment of our waking up to independence. Now, 75 years since then, because of the pandemic and how the pandemic was handled, we are in a much worse position to recover the ground that the RTE had opened for us at least in terms of expectations and hope. It is a moment of considerable crisis in terms of our recognition and resolve because the mechanism for fulfilling this right is the mechanism that incarnates in the kind of people who are today in this hall: teachers. It is they who are the incarnation of the legal mechanism of this extremely crucial right which is related to the behaviour of doctors, judges and politicians each one of whom is a subject of so many complaints today. When we make those complaints today, we forget that they went through this system and many others didn’t even come to this system even though the system isn’t so prideworthy to begin with. It is a subject which requires a considerable amount of introspection and introspection I understand, as a teacher of peace education, is the first ingredient of peace.

Question and Answer Session

Audience Member 1: Thank you very much for the talk. What would be the impact/consequence of the penetration of the state into the various aspects of life? One of the points you talked about was bringing justice to the child. Second is making the education system more inclusive but the system is, as it is, in an abysmal state and not only fails to support the child but also serves as a tool for propaganda. It uproots them from their context and makes them dependent, both economically and otherwise. It does not equip children even in terms of their education. How do I then think about what the role of the state is? And when the state is not able to do its job, what do we do with the state then?

KK: Well, the state must be improved. The consequences are bad if the state and society neglect these things. The state’s first and major responsibility is to these citizens who are in the making. When we say children are citizens in the making, we are not denigrating them. Rather, we are making them look even more important in that phrase. If you can do something about the citizen when the citizen is in the making, you will have to worry a little less when the citizen is already made. This is therefore a very important aspect of the state’s responsibility and society’s responsibility to keep the state on track.

Audience Member 2: Thank you for sharing your take on the rights of children and justice.

I just have one question: What should a child do when the parents and guardians themselves violate their children’s rights?

KK: Unfortunately, there’s nothing children can do about it.

Audience Member 2: We don’t even have a helpline.

KK: In England, Social Services can find out if a child is being enslaved. You must have heard on national television the case of Mo Farah who won an Olympic gold—he was enslaved inside a British house for three years and Social Services couldn’t find him. This idea of a helpline is a joke. Nothing much can be accomplished unless you have a very robust structure of institutions that make sure that every child avails of their rights. If the parents are violating them, there is no other way but for the state and particularly the judiciary to help the child.

Shivangi Jaiswal: Thank you Professor Kumar for your fascinating talk and your take on the RTE. I’m curious to know how you see the impact of the New Education Policy (NEP) on school education and the concept of justice. My second question is about what you said regarding children being conscious of caste. I am curious to know if you would say that this is also connected to class. Is it children of certain classes who are more conscious of the caste they belong to and children who come from upper-class and privileged backgrounds think that caste belongs to someone else?

KK: Your first question is easy to answer: the NEP doesn’t at all seem excited by the RTE, which is the most exciting event in India’s post-independent history. So, one doesn’t need to talk much about it. Your second question about a particular caste or class—I think awareness of caste is a very common affair and it cuts across classes. Indian marriages are overwhelmingly caste marriages and children do discover kinship gatherings, marriages etc.—there’s plenty of literature to show that children as young as four observe who is invited and accepted and who isn’t, who sits where and so on.

Audience Member 3: My question is related to the reproduction of caste consciousness in children’s minds. You saw that children as young as six are conscious of caste and I wondered: the school is a place where children do spend a lot of time, but the other institution is with family at home where they spend considerable time. Which one of these two institutions plays a dominant role in the reproduction of a caste-conscious mind and what interventions can we think of that can be made to take care of this issue? What will happen to the notion that children are innocent if they are becoming caste-conscious at the age of 6 years?

KK: In the case of religious consciousness, there are even more studies which prove that children as young as three and four know the difference between Hindus and Muslims for instance. Awareness of caste also comes well before the age of six. When you talk about intervention, you seem to think this is a matter in which intervention is possible. I think what is possible is greater knowledge and understanding when the child is at school. It’s the curriculum at school that can provide this consciousness at different points in time and it takes any educational attempt like that a long time to percolate into the next generation of parents. Education takes time to change things. So, this notion of fixing it by some kind of intervention today in the family is quite inadequate for meeting the kind of issues we are discussing.

Audience Member 4: Good morning, Professor Kumar. I want to ask this question somewhat tentatively and carefully but also in the spirit of the title of this session, ‘Children and Justice’. You spoke about the fact that it has taken a hundred years for an act like RTE to pass in Parliament. But it also speaks of how deeply segregated a society we have been for centuries. I want to ask this question from the lens of a practising teacher from within the confines of the classroom and what happens in that space in the wake of a law like this. And what I am pointing towards is that while we as well-meaning adults have these concepts of law, justice and restitution of justice, what pans out in the daily hustle and bustle of the classroom can at times be a little remote from this well-meaning intent of ours. I teach in a private school and what I see kind of unfolding can be quite heart-wrenching sometimes. When an act like RTE comes along and rightfully forces or attempts at a certain kind of assimilation and integration into society, we see children being thrown together in a classroom space. Twenty-five per cent is a minority at best and children, while wonderful as they can be, can also be brutal to each other at times. So, the kind of emotional trauma that these children from historically marginalized communities face, coming into what is theoretically meant to be an egalitarian space, is quite painful to watch. Of course, the efforts of the teacher and efforts of the educational institution are key in helping them assimilate into this space, but their daily lived experience can be quite traumatic and I would venture that these are things that leave an imprint on their minds long after their time in school. So, the question I am sitting on is, while I can see the important theoretical and philosophical framework with which an Act like this is passed, I am also a little muddled as to what the best way is to go about this. Is this the price the current generation must pay so that perhaps future generations will live in a more equal society?

KK: I am so glad you have answered your question so well! I don’t have to say much. The only thing I must add is perhaps, every teacher needs to read the RTE carefully, clause by clause, ponder on each clause and discuss it on the school premises more than once in a year. The law itself is a very rich reading. The schedules that have been added to it by different states should also be studied carefully because all these documents were prepared with great deliberation in most states. If teachers don’t read the text themselves, they will carry some kind of general understanding of the purpose of this law. My own experience says that when teachers are made to study the law carefully and discuss it among themselves, various possibilities arise in their minds that help them manage diverse classrooms. The curricular imagination of the designers is a very important resource for making this transition to a new kind of classroom where it will be possible to achieve goals of education that were always important but which we ignored for such a long time for reasons that you have stated so well.


Krishna Kumar is an Indian intellectual and academician, noted for his writings in the sociology and history of education. His academic oeuvre has drawn on multiple sources, including the school curriculum as a means of social inquiry. His work is also notable for its critical engagement with modernity in a colonized society. His writings explore the patterns of conflict and interaction between forces of the vernacular and the state. As a teacher and bilingual writer, he has developed an aesthetic of pedagogy and knowledge that aspires to mitigate aggression and violence. In addition to his academic work, he writes essays and short stories in Hindi, and has also written for children. He has taught at the Central Institute of Education, University of Delhi, from 1981 to 2016. He was also the dean and head of the institution. From 2004 to 2010, he was the director of the National Council of Educational Research and Training (NCERT), an apex organization for curricular reforms in India. He was awarded the Padma Shri by the president of India in 2011.

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