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“‘Queer’ not as being about who you’re having sex with (that can be a dimension of it); but ‘queer’ as being about the self that is at odds with everything around it and that has to invent and create and find a place to speak and to thrive and to live.”

– bell hooks

What Would Liberation Mean?

The movement for LGBTQIA+ Rights in India and beyond has grounded itself in the rhetoric of queer liberation. But is this a hollow rhetoric? In a year when we are observing the 10th Anniversary of NALSA v. Union of India [“NALSA”], it may be appropriate to question and revise what we mean by “queer liberation.” True liberation is impossible without recognition of two ineluctable reimaginations: first, that the movement must not merely aim at carving out space within heteronormative contexts but take a more radical stance of reshaping the status quo, and second, that the movement must be inevitably intersectional.

The first point is driven home by Judith Butler who said that queerness was to be seen as a rejection of a “here and now” and an insistence on the potentiality or a concrete possibility for “another world.” The second is based on the fact that there is an inherent stratification within the umbrella of queerness: between the upper-castes and the so-called lower-castes (and consequently, class as well), as well as between cisgender and transgender queer persons. These different constituencies face different kinds and disparate extents of marginalization, and the queer movement accords to them different levels of attention (which for any movement is a scarce resource).

Without this context, we cannot understand the complex terrain of transgender rights in India, which though legally guaranteed as envisaged in NALSA, remain paper claims because of the invisibility of the transgender question in the discourse for LGBTQIA+ rights. With Project Saahas, we aim to bring this question to the fore and encourage discourse on the inadequacy of welfare schemes and the inaction on horizontal reservation for Transgender Persons, and further, legally empower them with our efforts.

Workshop on Transgender Rights

The Committee conducted a workshop on transgender rights in collaboration with Sambhali Trust, which through its Garima Project has been furthering the cause of LGBTQIA+ Rights in Jodhpur. The aim of this session, conducted on 20th January 2024, was to disseminate awareness about the legal rights and entitlements of transgender citizens as well as the Central and State-level Schemes and also understand the issues faced by them. The session was delayed as transwomen who were invited live on the outskirts of the city – cut off from the mainstream.

The members were to discuss the rights of transgender persons under Part III of the Constitution of India, the Transgender Persons (Protection of Rights) Act, 2019 [“the Act”] and the rules made under the Act in 2020. But rather than us giving a lecture, the session turned into a conversation on how the law that is supposed to emancipate, is ineffective and alien. Kanta Bua, who is the guru of the local community intervened to address how their lived experiences are inconsistent with any apparent progress on the legal front.

One of the transwomen outrightly rejected the imposition of the label “transgender” – urging for the government to recognize her as not a “third” category but as an individual with the right to self-perceived gender identity. This not only highlights the limitation of importing non-indigenous labels for queer persons in India (who have preserved their historic culture and prefer using the terms, inter alia, Kinnar, Hijra, Kothi, Aravani and Khwajasira) but also highlights the inherent flaw in the Transgender Persons (Protection of Rights) Act, 2019 which denies the right to self-identify without surgical intervention.

They told us harrowing stories of verbal abuse and outright violence by doctors in government hospitals, as well as discrimination in public spaces – from temples to government offices. For instance, ahead of the recently concluded 2023 Rajasthan State Legislative Assembly elections, through an electoral awareness campaign, they could secure Voter ID Cards for almost all transgender persons but due to technical issues at the polling booth and apathy of governmental officials to assist them, they were disallowed from exercising their legal right to vote.

The session erupted with voices and opinions that questioned our understanding of queerness and the law. Does the law exist to protect us or further marginalize us? The 2020 Rules made under the Act mandate the State Government to constitute a Transgender Protection Cell in each district “to monitor cases of offences against transgender persons and to ensure timely registration, investigation and prosecution of such offences.” However, disconcertingly, according to them, the designated officer-in-charge in Jodhpur was herself unaware of her duties.

The issues that plague the progress of transgender rights in India are systematic and the flaw stems from the ineffective legal framework itself – which was formed without adequate consultation with the stakeholders and sans adherence to internationally recognized best practices and the Yogyakarta Principles.

The following discussion analyses the progress of transgender rights in India and their limits:

Constitutional Rights

The Supreme Court in the case of NALSA recognized for the first time the right to self-perceived gender identity, rooting it in the right to dignity, self-discrimination and bodily integrity. In NALSA, the Supreme Court directed the Indian Government to first, make provisions for legal recognition of ‘third gender’ in all documents, second, recognize third-gender persons as a ‘socially and educationally backward class of citizens’ entitled to reservations in educational institutions and public employment, and third, take steps to frame social welfare schemes for the community.

The NALSA judgement was a monumental achievement. However, the judgement has been criticized for being vague and extremely broad, leading to non-implementation of the legally binding directions issued under the judgement. The movement to secure horizontal reservations for transgender persons still goes on, ten years after the historic judgement.

In 2023, the apex court in the case of Supriyo Chakroborty v. Union of India went one step further and recognised the right to marry of transgender persons in heterosexual unions. The exclusion of queer people and transgender persons who are not in heterosexual relationships is evidence of a heteronormative and rejection of an intersectional lens.

Legal Rights in light of Transgender (Protection of Rights) Act, 2019

To formulate a legal framework within which demands for transgender rights could be made, the Transgender (Protection of Rights) Act, 2019 was promulgated. However, at the very outset, it was condemned for not taking into account the concerns and recommendations of the concerned stakeholders and not being referred to the Select Committee.

The Act defines a transgender person as one whose “gender does not match the gender assigned at birth.  It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.” The Act states that a certificate of identity designating one’s gender as “transgender” may be requested from the District Magistrate by a transgender person. Identity cards help in gaining access to a range of welfare schemes provided by the government. However, this very fundamental premise of the Act goes against the legally binding directive of NALSA which allowed trans-persons to self-identify their identity rather than it being contingent on any surgical intervention.

The Act prohibits the discrimination and recognizes criminal offences against a transgender person and, further guarantees right to residence, employment, education and healthcare for transgender persons. However, the penalties outlined in the Act for sexual abuse are far less severe than those for rape of a woman which strikes at Article 14 of the Constitution of India, guaranteeing the right to equality before law.

The Act necessitates the formation of a Transgender Protection Cell and a Transgender Welfare Board, however, these have not been constituted and even where they are set up – they remain fiscally and operationally ineffective.

Lastly, the Act completely ignores the question of providing reservation horizontal reservations as directed by the judgement.

Schemes by Government

The central government has launched the SMILE Scheme (Support for Marginalised Individuals for Livelihood and Enterprise) which focuses on rehabilitation, provision of medical facilities, counselling, education, skill development, economic linkages of transgender persons with the support of State Governments, Union Territories, Local Urban Bodies, Voluntary Organizations, Community Based Organizations (CBOs) or Institutions and others.

However, the progress under the scheme has been excruciatingly slow and no accountability mechanism has been fixed for the same. Through the scheme, the government also aimed to form Garima Grehs or Shelter Homes for destitute and abandoned transgender persons to provide them with basic amenities like shelter, food, and medical care. However, their situation remains a far cry from the present needs as they remain with inadequate funds, dilapidated buildings and paltry facilities. As recent as 2021, the Madras High Court also recommended that for the Garima Greh scheme to be a success, it should be extended to the entire LGBTQIA+ community and not just trans-persons.

Conclusion

Lawyers and law students have the responsibility of being the conscience-holders of our society – but even then we have limited capacities. In our conversation with transgender persons, we understood that without effective legal aid and cooperation from government officials, the stark realities of the marginalized would remain disconnected from the ivory towers where discourses of rights, reports and regulations happen. Our discussion did not have a conclusion – but that is the point. There can be no conclusion as the fight for transgender rights is a part of their quotidian existence and comes forth in their daily assertion to be themselves.

As Katyayani Sinha writes that “Queer communities continue to organise for their own emancipation and despite their vulnerability, queer visibility offers a public counter-narrative of resistance and survival against the brutalities of society and the state.” While hyper-visible in our public spaces – the transgender community has been invisibilised by our law and policy-makers. The community demands equal rights, affirmative action and heightened protection. It is time for all of us to rally behind them and contribute towards awareness and community-building. This will sow the seeds for queer liberation.

It’s 2021, the years that passed by, featured women fighter pilots, women in space making moonwalks, women in power heading the most powerful nations, in finance making tough financial decisions for nations. The years have been all about women taking charge, changing the world.

Contextually, India takes pride in the gradual but deep-rooted progressions made in the sex parity front. Rising sex ratios are quantifications we most comfortably rely upon, but at the end of the day these are just figures, aren’t they? 

A masquerade that hides innumerable sufferings, violations, damage and distresses. Concurrently exists a world of a flimsy progressive character and hollow promises, Meera’s world.

With tears rolling down her cheeks and her lips trembling, Meera laid down on a bed in a room filled with the smell of trauma and pain.  The past few years flashed before her eyes. She remembered the day when her now-husband, Sameer, had come to see her in the village. “He is a very understanding guy. He is kind. He will keep you happy,”she was told by voices surrounding her. She remembered her vivid thoughts when she said yes to the prospect of marrying this guy. They were primarily, how since he was educated, seemingly wise and lived in a city, he would take care of her and would be understanding. But now, today, sleeping on the bed, she realized how wrong she was. The realisation was heavy and painful. She slowly began thinking of how things went downhill from the day she thought would be the happiest day of her life.

“I am pregnant,” Meera exclaimed to Sameer.

“Wait, are you sure?” Sameer had asked with eyes gleaming with excitement.

“Of course, I am sure”.

“That’s great! Let’s go to the doctor tomorrow for a check-up”

The following morning, the couple filled with dreams and happiness had stepped into the hospital.

An hour and a couple of scans later, the couple found themselves sitting in a room anxiously waiting for the doctor. The doctor came in with a smile and congratulated the couple. The doctor added in a bit of advice on the care that needed to be taken for the child’s health. The couple came home smiling ear to ear and announced the news to the family.

The family was overjoyed when they heard the news. Every member of the family was making their plans with regards to the child. While one knitted clothes, another brought toys. An atmosphere of warmth coupled with excitement settled in everyone’s hearts. After all, the couple had been trying to conceive for a long time and were blessed with a child after many years.

In yet another general check-up after the first trimester, there hung a board that read in bold “Strictly following the Pre Natal Diagnostic Technique Act 1994, our centre does not indulge in sex determination of the foetus.” However, Sameer, reluctantly so, could not resist asking this one question. “Doctor, I am going to be the father of a boy, right?” The doctor was startled. She said, “Why is that important? And it’s illegal for me to check for that under the laws. Didn’t you see the board outside?”

The doctor proclaimed, sensing his intentions, “For your information Sameer, Section 6 of  THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994, clearly prohibits the determination of the sex of the foetus. Any attempt to do so is a punishable offence.”

Sameer in an unflinching manner said, “Oh come on! I know what you are talking about, but, it is necessary for me to know the sex of my child. Having a girl would be unsuitable, almost a matter of shame.  Society would laugh at me. And also what is the point of having a girl child? It would be a burden on my shoulders.”

Despite Sameer’s frustration, the doctor refused to indulge in the illegal practice of sex determination.  She said, “So what would you do once you know the sex of the baby?   Let me warn you right now, any action in the direction of harming the baby or harming Meera in order to abort the foetus will make you a criminal.” The board that hung outside the clinic saw various cases, successful deliveries, complications, this was certainly not the first time someone put forth such a shameless request to this clinic. Here it was, yet again.Things just seem to get worse with time. After returning home, Sameer made a couple of calls. He came back and said with a smug. “That doctor acted all moral and upright. Now, I found a doctor who will tell me the sex of my child.” Meera was mortified. Her heart whispered, “You know what will happen to your child if it is a girl.” With a trembling voice, fearing that her heart will be true, she said, “Why are you so adamant on this? Why not be happy with this blessing? The husband turned around and said,” Don’t talk as if you don’t know the ways of the world. If a girl is born, how is it a blessing? I want to make sure that this is a blessing.”

“But, all these years, we pined for a child. How does it matter if it turns out to be a girl? It is still our child.”

Sameer was now visibly annoyed, “Of course. It is nice for you. You don’t have to go out and earn. But I am worried about the costs I will have to incur to provide for a girl. And after all that, what is the point? She won’t carry on the name of the family. Beyond all that, I will have to give dowry to marry her off. Aren’t these reasons enough to want a boy?”

In a quiet voice, Meera asked, “What will you do if it’s a girl?”

“For obvious reasons, I will get rid of it before it is too late.”

The next day, Meera’s fears came true. It was a girl child. But, she desired the baby. She could not let the child die before it sees the light of this world. She had to do something.

Meera tried pleading with her husband as he went about arranging for an abortion. She argued about the fact that a boy and a girl were equal. She kept emphasizing and reemphasising the fact that a girl has a lot of potential too. However, Sameer was clouded with ignorance. He wanted the abortion to be done no matter what.

Meera was very scared at this point. She didn’t know what to do. She knew that if she spoke against her husband, she would be frowned upon. She shuddered at the thought of her family’s reaction if she goes against her husband. She did not even know if her parents would agree with her on this. She tried thinking of someone who would stand behind her after she took such a drastic step. She could not muster the courage to go to the police.

She could hear someone else weeping along with her. Someone smaller, someone softer. She looks around and realizes that it is her unborn child. She could feel her heart melt with every weep that she heard. Her child seems to say “Don’t I have the right to see the world? To dream? To hope? To aspire? It has been proven time and again why a woman is equal to a man. But, is there a need to achieve something to live? Don’t girls have a right to life on par with boys? Aren’t we entitled to the same world?”

Meera felt very ashamed listening to these words. She didn’t stand up for her child even before it was born. She had to stand up not just for her daughter, but for herself too. She couldn’t do that to herself. She could not allow people to bully her around into this, even if that person is her husband.

Meera with shaking hands reached out for her phone. It was time for her to take a stand. She quickly scurries across the room, to avoid being heard or seen by her husband. She found a contact of the doctor who had initially refused to conduct the sex determination test. She heard a familiar voice on the other end. With a heart filled with desperation, she began begging the doctor for help. She could feel her desperation roll down as tears. She prayed in her heart for an intervention from the doctor. Slowly in a shaking voice, she fills the doctor in. Meera calmed down when the doctor said she will protect the foetus, no matter what. The doctor arrived at the mother’s house with the police. Sameer made attempts to refute the facts. The police found the reports of the sex determination test. The doctor was filled with anger at the audacity of the father. She said in an angry tone, “. It is a matter of shame that India in 2021, still deals with patriarchal perceptions in the background of a technologically sound world. The fragile bubble of seemingly stable scenarios of reducing gender gaps and improving sex ratios come crumbling down when one looks at such incidences.”

The police Inspector said in a strict tone, “the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, prohibits strictly the determination of sex of a foetus.  And also, Sections 312-316 of the Indian Penal Code (IPC) enumerate consequences of miscarriage and death of an unborn child, the penalties range from seven years to life imprisonment for fourteen years and fine. And mind you, since your wife, does not seem to consent to these actions, as per Section 313, you will be liable to pay a fine along with life imprisonment or imprisonment for 10 years. All these laws have been enacted to tackle the diminishing/disproportionate sex ratio of the country and to provide an equal right to live to a girl. Any attempt to circumvent them, as you did, qualifies one as a criminal.”

Meera heaved a sigh of relief for her child and herself, as she heard sounds of people taking Sameer away.

“Manual scavenging is the worst surviving symbol of untouchability.”
Rahul is a 19 years old boy, born and brought up in the Mayanagri of Mumbai. Both his parents are doctors and were able to provide him a life full of comfort and luxury. Rahul is currently doing his graduation from one of the top universities in India. One day, his sociology professor gave a lecture on how untouchability is still being practiced against certain communities. For Rahul, this lecture brought back a distant childhood memory. During one of summer vacations, when he visited his grandparents, he remembered his grandma telling him not to talk to or go near a person working outside, because he was apparently what is called as “Bhangi”. Apart from this one incident, he remembers to have read about it in very brief in an unimportant corner of his school textbook. However, as a child he failed to realise the seriousness of this problem.
More recently, Rahul attended a webinar wherein the keynote speaker, Bezwada Wilson observed how governments have enough resources and modern equipment to launch satellites after satellites and to land on moon but not to provide modernized machines to sewer workers so that they are not forced to enter into manholes; manholes which asphyxiate them to death. People from communities that traditionally worked as “manual scavengers,” still collect human waste on a daily basis, load it into cane baskets or metal troughs, and carry it away on their heads for disposal at the outskirts of the settlement.This observation in particular caught Rahul’s attention. To understand the issue better, Rahul chose to conduct a survey on Manual Scavenging and Untouchability for his sociology term project. In pursuance of the same, Rahul visited a place called “Nala Road”, which was even named so because an open sewer canal runs parallel along with the road.
On his visit, while on one hand, Rahul found it difficult to breath properly even from distance due to the awful smell, he witnessed the deplorable sight of sewer workers dipped deep inside the canal up to their knees handling slurry with their bare hands. Rahul gathered his courage and stepped in direction where a man named Sunil, who appeared to be in his mid twenties, was standing. Rahul explained him the reason for his visit and requested him to answer some of his questions. Rahul not only sensed Sunil’s bewilderment (probably because he was not accustomed of people coming and empathizing with him and his work), but also his hesitancy in answering questions (probably because Sunil himself felt ashamed talking about the nature of the work he does). An excerpt from the conversation is provided below:
Rahul: What all kind of work you do as a part of this?
Sunil: Well, anything that involves interaction with excreta. For instance, the manual cleaning of dry latrines, sewers, manholes and septic tanks, removal of debris from sewage canals etc.
Rahul: Can you throw some light on hazards associated with this work?
Sunil: There are many as a matter of fact. For instance, exposure to poisonous gases and asphyxiation while working in manholes and septic tanks etc. My own father died working in the manhole!
Rahul: When this work is so hazardous and unsafe, why do you and others here continue it?
Sunil: Do you think we have chosen this life for ourselves!!? We do what we do because we have no other option. Most of us do not get to go to schools due to abject poverty that we live in. Those who somehow manage to get enrolled either are left behind in race or are otherwise deliberately denied work because of our castes. We have been doing this work since generations and there seems to be no way out. People think we are born to do this and are worthy of only this. I have some of relatives who live in villages, they are made to do this compulsorily by the Panchayat itself.

This encounter made Rahul realise why and how people continue to undertake a work which is unsanitary, undignified and above all, legally banned by Parliament since 1993. Most of the workers who are working as a manual scavenger like Sunil are unaware about various constitutional as wells as the statutory provisions which are meant to safeguard the rights and interests of these workers. Some of these provisions have been enlisted below:
Section 3 of The Employment of Manual scavengers and Construction of Dry Latrines (Prohibition) Act, 1993completely prohibits the employment and engagement of any person for manually carrying human excreta or construct or maintain a dry latrine.
Section 5 of Prohibition of Insanitary Latrines and Employment and Engagement as Manual Scavenger Act, 2013 (hereinafter referred to as the “Act”) prohibits the construction of an insanitary latrine and also prohibits the employment and engagement of manual scavengers.
An “insanitary latrine” means a latrine which requires human excreta to be cleaned or otherwise handled manually.
Section 7 of the Act: “No person, local authority or any agency shall engage or employ any person for hazardous cleaning of a sewer or a septic tank.
Anyone who contravenes section 7 of the act for the first time is to be punished with imprisonment for a term which may extend to two years or with fine which may extend to two lakh rupees or with both and any subsequent contravention shall be punishable with imprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both.
The Act provides for the rehabilitation of any person included in the final list of manual scavengers published in pursuance of the provisions of the act in the following manner:
He shall be given, within one month, a photo identity card, containing, inter alia, details of all members of his family dependent on him, and such initial, one time, cash assistance, as may be prescribed.
As per the provisions of the relevant scheme of the Central Government or the State Government or the concerned local authority and subject to eligibility and willingness of the manual scavenger:
His children shall be entitled to scholarship.
He shall be allotted a residential plot and financial assistance for house construction, or a ready-built house with financial assistance.
He, or at least one adult member of his family, shall be given training in a livelihood skill, and shall be paid a monthly stipend of not less than three thousand rupees, during the period of such training.
Subsidy and concessional loan for taking up an alternative occupation on a sustainable basis shall be provided to him or at least one adult member of his family.
He shall also be provided any other legal and programmatic assistance as per the requirements.

The hon’ble Supreme Court of India in Safai Karmachari Andolan v Union Of India(2014) has ruled to identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs.10 lakhs for each such death to the family members depending on them.

Article 17 of the Constitution of India abolishes “untouchability” and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” is an offence punishable in accordance with law.
Article 21 of the Constitution of India enshrines that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Various rulings of Supreme Court have interpreted right to life to include right to live with dignity.
In the course of completion of his project, Rahul found some startling data which made him question all the apparent progress that we claim to have made.
According to a national survey conducted in 18 states, atotal of 48,345 manual scavengers have been identified till January 31, 2020.
814 deaths of manual scavengers engaged in cleaning sewers and septic tanks have been recorded in India from 1993 to July, 2019 in 20 states and UTs.
While replying to a question raised in the Lok Sabha, Ramdas Athawale, Union Minister of State for Social Justice and Empowerment,revealed that between 2015 and 2019, 376 people died of asphyxiawhile cleaning sewers and septic tanks.
Out of 376 deaths from 2015 to 2019, families of only 200 sanitation workers who died between 2015 and 2019 were paid full compensation, 75 received partial amount and 101 have not received any compensation at all.
Talking to Sunil, made Rahul realize that the issues of poverty, indignity and caste are not only interconnected but also reinforce each other. It is clear that government policies have not been properly implemented. People remain unaware of their right to refuse their roles as manual scavengers, and those who do refuse face intense social pressure, including threats of violence and expulsion from their village, often with the complicity of local government officials.The manual carrying of human faeces is not a form of employment, but an injustice akin to slavery. It is one of the most prominent forms of discrimination and violation of human rights. What is required not only ending the practice but also ending the abuses faced by communities engaged in manual scavenging.

What a year it has been. The pandemic led to so many children not having a roof over their head, or a mother to sing them to bed, or a father to struggle for the remote with. Every night, every call, made it a little tougher for me to sleep at night. My work with CARA (Central Adoption Resource Authority) recently met with some fruition with my promotion but it all felt so bittersweet.

I woke up in the morning to the piercing sound of ambulances passing my home. It was day 401 of the pandemic but everyday was a blur of calls, coffee and the banter of my co-workers. 

CARA was located in West Block 8, RK Puram in New Delhi which was a 10 minute walk from my home. After getting a cup of Rama’s hot coffee, I got to the receiving end of the phone that had never stopped ringing since the pandemic had started. 

I picked up the phone. Heaving and sobbing sounds from the other end of the line alerted me about the sense of emergency that the lady extended. ‘Namaste Ma’am, Central Adoption Resource Authority, how may I help?’. ‘Sir.. Sir, I’m Deva, my didi’s son Akarsh, he’s alone sir, please help me’, responded the lady. ‘ Ms. Deva please could you provide me with certain details such as the age, parental status of the boy, and the city and state you are calling from’, I replied with a heave. Calls from relatives of orphaned children had become regular after we had started to run our rural awareness campaign.

After noting down Akarsh’s details, I asked the lady to stay composed and assured her that according to the Juvenile Justice (Care and Protection) Act, 2015 and Adoption Regulation, 2017 as a relative of the child, she could put up Akrash for adoption. I went on to explain that the Child Welfare Committee (CWC) will have to declare Akarash legally free i.e declare him to be either an orphan, abandoned or surrendered (OAS) child so that he can officially start his procedure for adoption. After an exchange of commiserations, I let Deva know that my colleague would be in touch with her and put down the phone with a heaving sigh. Deva and Akarsh were located in Bihar, so I called Brijesh, one of the Point of Contacts at the State Adoption Resource Agency (SARA) Bihar which was the nodal authority for the promotion, facilitation, monitoring and regulation of the adoption programme in the State.

After transferring the details for Akarsh, I put the phone down. I caught my breath, the swell of a heavy day cut the crisp air. I took a sip of my  warm coffee, its bitter taste felt as an appropriate match for the present circumstances. Before I could let my heart clench at this thought the shrill sound of the phone broke my reverie.

“Namaste Sir” came a distressed voice from the other side; I am calling from the Delhi Police Juvenile Justice Unit. I wanted to ask about the child that we had rescued last week.”

‘Deepak’, I thought to myself. He had been rescued from a child trafficking racket by the Delhi Police. Instances of child trafficking have skyrocketed during the pandemic and children who have been orphaned are particularly vulnerable to these rackets, Deepak being one such victim. 

Deepak which literally means light was forced into the ugly darkness of human trafficking; I laughed bitterly thinking about this irony.

“Yes Sir, as per Section 28 of the Juvenile Justice Act, Deepak was first produced before the Child Welfare Committee and after conducting inquiry on all issues relating to and affecting the safety and well-being of the child as per Section 30, he was brought to us.” I informed the police officer.

“Thank you Sir, I wanted to call and check in because the issue of child trafficking has been growing like an unsuspected tumor in the time of this pandemic. Especially during the second wave, numerous messages of adoption appeals for children who have been orphaned due to covid-19 have been circulating on social media like Twitter and Whatsapp. These unwarranted activities are leading to child trafficking in the garb of adoption as the appropriate procedure is not being followed.”

“That is right Sir” I replied, “the correct procedure is that first such an orphaned child must be reported on the National Childline-1098. After that the District Child Protection Unit (DCPU) will undertake a social investigation to find the family members of such a child who can be given the custody. Failing which, the child may be declared as legally free for adoption. If this is not followed then it can expose these kids to trafficking as social media provides a channel to by-pass the law and ‘adopt’ them.”

“Moreover, restoration and rehabilitation of children like Deepak, who are in immediate need of care and protection is specifically undertaken by the Specialised Adoption Agency and only those people and institutions who are deemed as ‘fit person’ or ‘fit facility’ after due verification of their credentials as stated in the Juvenile Justice Act are allowed to adopt or take care of the child.”

“I agree Sir, seeing this mayhem unfold I just wanted to ask about Deepak. However, I will now let you attend to the soaring number of calls that I am sure you must be receiving during the 2nd wave.” With that the line got disconnected.

The police officer was right – Call number 216, I thought to myself as I unconsciously kept a tally of the ever increasing calls.

My glasses were fogging up and as much as I wanted to convince myself that this is purely because face-mask and glasses are not an ideal match, I could not ignore the wetness near my eyes. Will these children ever experience a normal childhood? Will they ever get a closure? In a country where mental health is still a taboo will anyone recognize their agony or will they be pushed into the dark void of trafficking?

“TRRRR” suddenly the sharp, piercing sound of the phone didn’t feel unwelcomed as it drowned the harrowing voices in my head.

“Namaste Sir, Rakesh reporting.”

“Namaste Rakesh,” I said, returning the greeting. “Tell me what made you call me today?”

Rakesh, was a colleague and an old friend of mine, we worked together at the State Adoption Resource Agency before I got promoted here.

“Sir, I have some good news to share.”

I sat up straight; my movement so quick that my old, rickety chair jerked forward – hearing these words was a rarity during a global pandemic.

“Our team had gone for the monthly inspection of foster families to check the well-being of the child as mentioned under Section 44 of the Juvenile Justice Act. We carried out our inspection in the prescribed manner and interacted with the family and found out that he had been enrolled in a school and was attending his online classes. During our visit we saw him struggling to understand basic mathematics and believe me when I say that I have never been happier seeing a child struggle before.” 

I could feel his smile behind the receiver of his phone. I perfectly understood what he was saying. After years of working with orphaned children, seeing them get a family to call their own filled you with an unparalleled sense of gratification. They might struggle, but this time they will have a family to prop them up after every stumble.

I felt my mask rise up a bit and its strings tighten around my ears; I realized I was smiling too.

We continued our conversation, catching up and asking each other’s well being, before I looked at the orange tinted sky and took that as a sign to end our call. I got up and stretched my rusty joints, before leaving I grabbed a stack of pamphlets with me. This was a part of our effort to spread awareness as everyone cannot access our website or call us, thus we decided to put up pamphlets so that those in need could still reach out to us. 

As I was sticking up the pamphlet near a market joint, I admired the changing hues of the settling sun. It was a bright orange at some places, a somber red in the centre and the corners were quickly turning dark signaling the incoming night. However just like the sun I would be back at my work tomorrow, ready to light those dark corners.

Pamphlet

PROCEDURE FOR CHILD ORPHANED BY COVID

• If a child has become orphaned due to his parents passing away because of Covid-19, the relative, guardian etc must call the Childline services @ 1080
• The Childline Services will help produce the child at the nearest District Welfare Committee whose job is to ascertain the immediate needs for the child’s rehabilitation. 
• Post this, the child may be returned to their caregivers or put in the right institutional or non-institutional care

PROCEDURE FOR CHILD ADOPTION 

• A child in India can be adopted by an Indian citizen, NRI or a foreign citizen, irrespective of their gender or marital status.
• Prospective adoptive parents need to get registered with an authorized agency. Recognised Indian Placement Agencies (RIPA) and Special Adoption Agency (SPA) are the agencies which are allowed to make such registrations in India. 
• A social worker for the registration agency will make a visit to the home of the prospective adoptive parent in order to do a home study. Post this the agency will intimate the interested couple/ individual when-ever there is a child ready for adoption.

For more details visit: http://cara.nic.in/ 

It was yet another scorching day of April, in a small village not too far from the capital of Rajasthan, when Anandi came running to her home with the biggest smile on her face and with great enthusiasm told her parents that it was the happiest day of her life. The indifferent father asked her the reason behind the excitement, answering to which Anandi slowly took out a certificate from her bag and showed it to her parents and said that she has secured second position in class 9th in the entire Bhilwara district. Her parents smiled a little, which appeared to be a mere formality and just to keep her heart for what they were about to tell her. The mother hesitantly told Anandi that her father had matched her a fix and they were planning to marry her on the occasion of Akshay Tritiya, which is considered to be the most auspicious day for solemnizing child marriages.

Anandi was a 14-year-old lively young girl who had the aspiration to make something out of herself and dreamt of a life bigger than what her parents made her live. She was one of the brightest students, not only in her school but also in her district. However, little did she know that her fate had already been determined by a repressive age-old practice that continues to temper the lives of many Anandis in different parts of our country. She belonged to a poor family from Bhilwara, Rajasthan. Her family consisted of her father, mother, elder brother and her grandma. Anandi’s father was a small farmer who was trapped into a vicious circle of debt and poverty. He wanted to transfer the burden of raising a girl as quickly as possible and, therefore, being crushed under the fetters of poverty, he decided to get Anandi married to a 27-year-old man in exchange for a bride for his elder son. This popular practise of exchanging a daughter in return for a daughter-in-law is called Atta Satta and it is very prevalent in various communities of Rajasthan.

Tears rolled down her eyes as her mother narrated her fate and she ran to her room hoping that all this was just a nightmare. She then went to her mother and begged not to do this to her and confessed about her dream of getting educated and becoming a doctor. Anandi’s mother, who was also married at a young age, understood her plight as she knew about the agonizing pain of dreams being crushed under this archaic tradition. She could not see her tears and, therefore, decided to stand up against this deep-rooted patriarchal evil so that her daughter could carry on with her education. With the courage of the size of a boulder, Anandi’s mother requested her husband that they should not get Anandi married at this age and instead they should give her a chance to fulfil her aspirations. Her Bapu got furious listening to what Anandi’s mother just proposed and blatantly shot down her request warning her to never bring this up again. 

A month passed and the next academic session was about to start, but her parents didn’t allow her to join class 10th in the anticipation of her marriage. As luck favoured, one day Guddu Bhaiya came to visit her. Guddu Bhaiya was her first cousin and had just started practising law in Rajasthan high court after graduating from a law school. He met Anandi and while conversing with her, Anandi’s mother broke the news of her marriage. Guddu Bhaiya was shocked to hear this. He tried to talk to Anandi but his aunt interrupted the conversation by emphasising on the fact that Anandi does not have any say in this. Anandi’s mother said that their decision was full and final and there should not be any further discussions on it. 

Later that day, Guddu Bhaiya somehow got a chance to interact with Anandi and again asked her about what she wants to do and Anandi broke down in tears this time. She told him about everything she has been going through since April, starting from the day she secured 2nd position in the 9th standard to how she is being forced to marry a man who is more than a decade older than her. She told him about her dream of becoming a doctor. She further said that even if she is not the brightest student, she knows that it’s illegal to marry a girl before the age of 18.

Guddu Bhaiya was happy to hear this and said “Shaabash Anandi” and added “I will make sure that you will not be married against your will and also until you complete your studies.” He then talked to his aunt and uncle and explained to them about the legal, social, physical and mental aspects of child marriage that a young soul has to face. 

Consequences of Child Marriage: 

Guddu Bhaiya tried to explain how early marriages can have a dreadful impact on the lives of young girls. At a young age, when a girl should be given the freedom to play and build her career, this evil practise of child marriage snatches her childhood and shoulders her with the responsibility of looking after her family, and raising kids. She loses her freedom of expression and is expected to follow what her husband orders her. This way, child brides are more likely to become victims of torture, abuse and exploitation at the hands of their husband and in-laws. Even if she tries to raise a voice against this torture, she is suppressed by her own family who tries to justify this by saying that there is no harm in a man beating his wife. 

Guddu Bhaiya also explained how such kind of violence adds to mental trauma and leads to depression and anxiety which often becomes lifelong trauma, thereby, impacting the mental health of that girl badly. Not only this, when a girl is married at an early age, it also tends to affect her sexual health. Due to a lack of awareness and access to modern medical facilities to avoid or postpone pregnancy, she is exposed to early and multiple pregnancies before she is even physically mature and psychologically ready to give birth. Early pregnancies lead to greater health complications among young girls and, therefore, the infant and maternal mortality rates are also higher in these situations. Poverty and illiteracy are the root causes of child marriages and these early marriages can, in turn, lead to a perpetual cycle of poverty. Guddu Bhaiya adds on to say that keeping in mind all these aspects, we have several laws in place which prohibits Child Marriage in India and if any person is found to marry off a young girl, then he shall have to face severe legal consequences. 

Guddu Bhaiya listed the following Legal safeguards against Child Marriage in India:

• Prohibition of Child Marriage Act (PCMA), 2006 – This law was passed by the Indian parliament to replace the Child Marriage Restraints Act, 1929. As per this Act, child marriage is a punishable offence and provides that any person, who performs, conducts, directs or abets any child marriage would be punished with imprisonment up to two years or fine up to 1 lakh, or both. It also provides for the appointment of a Child Marriage Prohibition officer whose duties are to prevent child marriages and spread awareness regarding the same. The law makes child marriage voidable and a decree of nullity can be obtained by a girl who has entered into a child marriage within 2 years of attaining the age of 18 years. 
• Constitution of India – 

1. Equality before Law and Prohibition of Discrimination on Grounds of Sex – Although child marriage affects both sexes, girls are disproportionately affected because of early pregnancies, domestic and/or sexual violence, and restricted educational opportunities. Thus, child marriage violates the fundamental right under Article 14 as well as under Article 15. 
2. Protection of life and personal liberty – Child marriage violates the fundamental right under Article 21 by exposing them to a continuum of harms, including violence and reproductive health. It also violates their Right to privacy, which encompasses protection of the personal intimacies of the home, the family, marriage, motherhood, procreation, and child-rearing. 
3. Prohibition of Traffic in Human Beings and Forced Labour – The practice of child marriage reflects the commodification of women and girls and it is no less than a slavery leading to violation of Article 23 of our Constitution.
4. Right to education –Child marriage deprives girls of their right to education enshrined under Article 21A of our constitution. 
5. Article 39 – Child marriages not only robs children of their youth but also leads to abuse and exploitation of young girls. This DPSP aims at providing children with the opportunity to develop healthily with freedom and dignity so that they can be protected against exploitation and from moral and material abandonment. 

• Domestic Violence Act, 2005 – As per this Act, any women living in the domestic setup either with her in-laws, parents or guardians, if subjected to any kind of physical violence or mental trauma as discussed in the act will be considered as a victim of domestic violence. The abuse could be in the form of physical, sexual, verbal, emotional or economic, or the threat of abuse and the person committing the crime will be liable as per the provisions of the act.
• Protection of Children from Sexual Offences Act, 2012 –As per this Act, an act of sexual intercourse by a spouse of a person below eighteen years is an offence irrespective of the gender or age of the victim or the accused. This is punishable with a fine and a minimum term of 10 years of imprisonment which may extend to life imprisonment. Also, in all cases of child marriage, as the girl is below 18 years of age, therefore, apart from the provisions under PCMA, aggravated penetrative sexual assault under the POCSO Act can also be charged.
• Indian Penal Code – There is no specific provision for Child Marriage in IPC, however, as per Section 366 of the IPC, kidnapping/abduction of a woman to compel her to marry and the use of any other method of compulsion is a punishable offence. Moreover, going through a marriage ceremony with fraudulent intention is also a punishable offence under Section 496. Section 370 of the IPC can also be invoked to book a case of trafficking for marriage.  Further, The Supreme Court of India on 11th October 2017 read down Exception 2 to Section 375 and ruled that sexual intercourse or sexual acts by a man with his minor wife would amount to rape for the purposes of Section 375 of the Indian Penal Code, 1860. 

Guddu Bhaiya was finally able to convince them after much persuasion. Anandi was lucky to have a Guddu Bhaiya in her life, even if not for Guddu Bhaiya, Anandi was a bright and a self-aware girl and she might have found some other way to escape from this misery, but all our sisters and daughters are not Anandi. There are lakhs of Anandi in our country. As per the data of UNICEF, One in three of the world’s child brides live in India and of the country’s 223 million child brides, 102 million were married before turning 15. 

Today we have to take a vow that we have to be someone’s Guddu Bhaiya or if not Guddu Bhaiya, we have to memorise the lessons of Guddu Bhaiya by heart so that no other Anandi in this country has to face this misery. Child marriage is not only a violation of human right, but it is illegal and irrational as well, it further completely destroys a young soul in most cases. If we truly want to emerge as a Vishwaguru we have to keep our women safe and happy in every possible sense and child marriage is one such menace present in our society that has to be done away with as soon as possible.