By Kavya Arora
Introduction
‘Protest is a form of individual or collective action aimed at expressing ideas, views or values of dissent, opposition or denunciation’.[1] Examples include expressing social or political perspectives, vocalising criticism or support regarding government, reacting to a policy or denunciating a public problem and raising awareness about discrimination against a group.[2]
Children are a central component of society with their own opinions and lived experiences.[3] Hence, they are capable of speaking for themselves and enjoying autonomy rights.[4] Convention on the Rights of the Child (‘CRC’) recognises this ability of children to form their opinions and express their views[5] and confers the right to protest specifically to them. However, by virtue of being children, they are relatively inexperienced and vulnerable when it comes to exercising their rights.[6] To prevent them from being manipulated, certain protections and restrictions are necessary.
The article highlights the laws which grant children the right to protest and shows how children all over the world have successfully exercised this right. It further draws attention to certain complexities that have arisen due to children’s involvement in protests. Finally, the importance of imposing reasonable restrictions is highlighted with a suggestion as to how a balance between rights and restrictions can be achieved to help children who can form their opinions exercise their rights with the least possibility of them being misused.
Children’s Right to Protest
Protests aim to bring about changes through peaceful means and therefore are vital for the working of a democracy.[7] Universal Declaration of Human Rights (UDHR) recognises that all members of the human family have the right to freedom of thought,[8] freedom of opinion and expression[9] and freedom of peaceful assembly.[10] The Constitution of India too guarantees to all its citizens right to freedom of speech and expression,[11] right to assemble peacefully[12] and right to form associations.[13] These rights are intimately interconnected with the right to protest,[14] which has been recognised as a fundamental right of citizens by the Supreme Court in Ramlila Maidan Incident v. Home Secretary, Union of India & Ors.[15] Since “all members of the human family” mentioned in UDHR and “the citizens of India” mentioned in the Constitution include children, they too enjoy the above discussed rights.
Further, the explicit inclusion of these rights in CRC has provided a clarification that they apply to children as well.[16] It stipulates that children should be heard in matters affecting them;[17] they should have the right to freedom of expression,[18] and the states should recognize their right to freedom of peaceful assembly.[19] India is one of the signatory states of CRC and hence has an international obligation to secure these rights of children.[20]
There have already been impactful protests like ‘School Strike for Climate’ by children. Started by a fifteen-year-old schoolgirl Greta Thunberg,[21] it spread worldwide and saw the participation of more than two million children.[22] Leaving school to attend peaceful demonstrations and urging for climate action had been the strategy of the movement.[23] Greta was named one of the Most Influential people of 2019 by Time Magazine.[24]
On the one hand, children’s willingness to relinquish their education and time to demand policy changes in this protest have shown their capability to exercise their rights and have an impact on the world. On the other hand, there have also been several protests which proved to be detrimental to the interests of the children involved. They have led to certain complications, as discussed below.
Complications related to Children’s Involvement in Protests
Although children have the right to express their views, they also have some vulnerabilities which can render their participation in protests susceptible and dangerous.[25] This year, India witnessed widespread protests against the Citizenship Amendment Act, 2019 (‘CAA’).[26] Students of universities such as Aligarh Muslim University (‘AMU’) played an active role in Anti-CAA protests.[27] The peaceful sit-in by Muslim women at Shaheen Bagh became the epicentre of countrywide protests.[28] Though none of these protests were children centric, the following instances highlighted various complications concerning children’s involvement in and their very right to protest:
- Two AMU students were booked under the Juvenile Justice Act for ‘using’ children in their Anti-CAA Protest March.[29] Minors having no knowledge of CAA were made to sit with Anti-CAA placards in front of the protesting crowd.[30] This highlighted the fact that children are relatively vulnerable and inexperienced; they can be manipulated or forced for the purpose of a protest and used as a tool to evoke emotions or protect adults from police action.[31] Hence, they need protection.[32]
- On January 30, death of an infant at the protest site lead to the Supreme Court taking suo moto cognizance of the presence of infants and participation of children in demonstrations.[33] The Court issued a notice to prohibit children from entering areas where Anti-CAA protests were being held.[34] This decision of the Court raised questions regarding the imposition of a blanket restriction on the right to protest of all children, ranging from infants to adolescents and young adults, under the garb of protecting them.
Attempts should be made to ascertain the vulnerabilities and recognise whether children are capable of forming their own opinions or not. Restrictions should be applied on vulnerable groups of children who are more likely to be manipulated or misused. Furthermore, protection should be provided to those who have the capacity of forming their own opinions.
Balancing Rights and Restrictions
CRC recognises “evolving capacities of the child”,[35] the principle that children’s ability to exercise their rights increase as they develop.[36] They acquire competency not only as a consequence of age but also through their experience, surrounding culture and level of parental support. [37] This principle strikes a balance between recognizing children as having autonomy in exercising their rights while being entitled to parental and State protection due to their relative immaturity.[38] Parents and the State are responsible for the actions of children and ought to provide them guidance in a manner consistent with their capacities which evolve as they develop.[39] Any legal framework should consider their capability of making decisions and provide protection accordingly.[40]
Determining the capacity of children to engage in rational decision making on the basis of their age is a debatable topic.[41] Nevertheless, there has to be a criterion to group children based on their decision making power and hence know which group requires more protection and restrictions.
One possible way could be to co-opt the rationale behind the age division in the Indian Penal Code (‘IPC’). §82 of IPC provides complete immunity from criminal liability to a child under the age of seven.[42] It is presumed that such a young child cannot distinguish between right and wrong.[43] This presumption emanates from the reasoning that he lacks adequate mental capacity required to form an opinion, know and evaluate the consequences of his actions.[44]
A child above seven but under twelve may or may not be mature enough to understand what he is doing. [45] According to §83 of IPC, if it is proved that the child was not mature enough to know the consequences of his action, he can be absolved of criminal liability.[46] More than age, the intellect and the maturity of understanding are relevant for deciding the culpability of this group.[47] Above the age of twelve, there is no immunity from criminal liability because by this age a child is generally mature enough to understand what he is doing.[48]
Similarly, one way to determine who needs protection and where to place restrictions in the context of the right to protest can be a division of children into three groups. The first group should consist of children who are so young that they do not have the capacity of understanding and analysing the situation and forming their views. Restrictions should be applied on such children, and they can be prevented from protesting because there are extremely high chances of them being manipulated and misused by adults.
The second category should be that group which depending on the difference in surroundings, level of exposure and parental support may or may not have the maturity of forming their opinions. In such cases, the role of parents should come on the forefront. Since the capacities of such children are still evolving, parents have a duty to protect them from activities likely to cause harm. [49] Restrictions should be imposed on this group based on parental consent and if they are allowed to exercise their rights, parents should assume full responsibility for the risk. As the capacities of children evolve, parental rights cede to the children and they are entitled to exercise their rights on their own behalf.[50] Hence, the third category should be of such children who are mature enough to exercise their rights wisely. As the children of this group acquire greater competency, there is a transfer of responsibility from parents to these children.[51] However, by virtue of being relatively immature, they need to be protected from the risks and dangers of adulthood.[52] Therefore, the State should assume greater responsibility and this category should be the one requiring maximum protection from state authorities while exercising their rights.
Article 3 of CRC obligates the State to consider the best interest of children while taking any administrative or legislative action concerning them.[53] By interpreting the right to freedom of assembly of Article 15 in the light of Article 3, there is an obligation on the State to recognize children’s vulnerabilities and protect their right to protest safely.[54] India’s National Child Policy also requires the State to provide children with an enabling environment and support to express their views in accordance with their age, maturity and evolving capacities. Hence, the State must help them to be actively involved in matters affecting them.[55] Adequate training should be given to authorities to make them aware that children have as much a right to protest as adults. Still, they are a group with specific vulnerabilities and need to be facilitated for proper implementation of their rights.[56] In demonstrations involving children, authorities should be trained to implement crowd management methods which do not harm their mental, physical and emotional well being. While framing the Standards and Procedures of Crowd Control, the possibility of children’s presence in a protest should be acknowledged. Child sensitive policies should be formulated for respecting children’s right to protest, protecting them while they are exercising this right and helping them achieve complete realisation of their rights.
While children’s right to protest ought to be protected, sometimes it comes in conflict with other fundamental rights. For instance, in the case of Prof. Raju Kuruvilla v. State of Kerala,[57] some school students had joined student organisations and resorted to strikes, processions, gheraos inside the school campus for achieving certain goals[58] This disrupted academic activities and violated Right to Education of other students.[59]
In such situations, the Principle of Harmonious interpretation should be applied. If Constitutional provisions are in mutual conflict, effort should be made to reconcile and give maximum effect to all of them.[60] When children’s protests turn violent so as to infringe upon other fundamental rights, they should be subjected to reasonable restrictions. Efforts should be made to examine the cases individually to prevent children’s political manipulation. Meanwhile, peaceful protests should be encouraged and a democratic procedure should be established in schools also for children to express their views.
Conclusion
The word ‘children’ encapsulates people of varying ages and capacities, each one having a different ability to form opinions and understand the nature of their rights. Their capacity for exercising their rights evolve as they develop. Different groups of children have different maturity levels and face different vulnerabilities while exercising their right to protest. Hence different extent of restriction and protection is required.
IPC categorizes children based on their level of understanding their actions and its consequences; such a rationale can be applied here also to group children into three categories depending upon their ability to form opinions. The higher the capacity of a child to have his own views, the less he is susceptible to exploitation, and the fewer restrictions should be applied. At the same time, it has to be recognised that even teenagers are relatively immature and require protection. The authorities should be aware of their positive obligations towards the protesting children and act in a way which does not have detrimental physical, psychological and emotional consequences on children.
The author, Kavya Arora, is currently a law student at the National University of Juridical Sciences (NUJS), Kolkata.
[1] Office of Special Rapporteur for Freedom of Expression of the Inter American Commission on Human Rights, Protest and Human Rights, 5 (2019).
[2] Id.
[3] Aofe Daly, Demonstrating Positive Obligations: Children’s Rights and Peaceful Protest in International Law, George Washington International Law Review 773 (2013).
[4] Id., 774.
[5] Convention on the Rights of the Child. E/CN.4/RES1990/74 (December 20, 1989), Art. 12.
[6] Gerison Lansdown, UNICEF Innocenti Research Centre, The Evolving Capacities of the Child, 31.
[7] Daly, supra note 3, 768.
[8] Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December12, 1948), Art. 18.
[9] Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December12, 1948), Art. 19.
[10] Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December12, 1948), Art. 20.
[11] The Constitution of India, 1950, Art. 19(1)(a).
[12] The Constitution of India, 1950, Art. 19(1)(b).
[13] The Constitution of India, 1950, Art. 19(1)(c).
[14] Supra note 1.
[15] Ramlila Maidan Incident v. Home Secretary, Union of India & Ors., 2012 5 SCC 1.
[16] Daly, supra note 3, 772.
[17] Convention on the Rights of the Child. E/CN.4/RES1990/74 (December 20, 1989), Art. 12.
[18] Convention on the Rights of the Child. E/CN.4/RES1990/74 (December 20, 1989), Art. 13.
[19] Convention on the Rights of the Child. E/CN.4/RES1990/74 (December 20, 1989), Art. 15.
[20] Ministry of Women and Child Development, The National Policy for Children, §1.2 (2013), Res No. 16-1/2012-CW-1.
[21] Arita Holmberg & Aida Alvinius, Children’s protest in relation to the climate emergency: A qualitative study on a new form of resistance promoting political and social change, 27(1) Swedish Defence University, Sweden 78 (2020).
[22] Thomson Reuters Foundation, How Greta Thunberg’s climate strikes became a global movement in a year, June 20, 2019, available at https://in.reuters.com/article/global-climate-thunberg/how-greta-thunbergs-climate-strikes-became-a-global-movement-in-a-year-idINKCN1VA00J (Last visited on June 21, 2020).
[23] Holmberg, supra note 21, 83.
[24] Time, Greta Thunberg: The 100 most influential people of 2019, available at https://time.com/collection/100-most-influential-people-2019/5567758/greta-thunberg (Last visited on June 21, 2020).
[25] Daly, supra note 3, 765.
[26] Irfanullah Farooqi, Citizenship as Participation: Muslim Women Protesters of Shaheen Bagh, 4 Economic and Political Weekly 1 (January, 2020).
[27] EPW Engage, Student Protests: Universities Need to be Committed to Principles of Social Justice, Economic and Political Weekly. (January, 2020).
[28] Farooqi, supra note 26.
[29] Anuja Jaiswal, Two AMU students booked for ‘using’ children for anti-CAA protest, January 25, 2020, available at https://timesofindia.indiatimes.com/city/agra/two-amu-students-booked-for-using-children-for-anti-caa-protest/articleshow/73593384.cms (Last visited on June 22, 2020).
[30] India Express, Two AMU students booked under child welfare act for using minors in anti-CAA stir, January 24, 2020, available at https://www.newindianexpress.com/nation/2020/jan/24/two-amu-students-booked-under-child-welfare-act-for-using-minors-in-anti-caa-stir-2093995.html (Last visited on June 21, 2020).
[31] Daly, supra note 3, 777.
[32] Gerison Lansdown, UNICEF Innocenti Research Centre, The Evolving Capacities of the Child, 31.
[33] Nilashish Chaudhary, [Breaking] Infant’s Death At Shaheen Bagh: SC Takes Suo Moto Cognizance Of Involvement Of Children & Infants In Protests, February 7, 2020, available at https://www.livelaw.in/top-stories/infants-death-at-shaheen-bagh-sc-takes-suo-moto-cognizance-of-involvement-of-children-infants-in-protests-152460 (Last visited on June 20, 2020).
[34] Oxford Human Rights Hub, Indian Supreme Court Arbitrarily Limits Children’s Right to Protest, May 28, 2020, available at https://ohrh.law.ox.ac.uk/indian-supreme-court-arbitrarily-limits-childrens-right-to-protest/ (Last visited on June 23, 2020).
[35] Convention on the Rights of the Child. E/CN.4/RES1990/74 (December 20, 1989), Art. 5.
[36] Lansdown, supra note 32, 3.
[37] Lansdown, supra note 32, 3.
[38] Convention on the Rights of the Child. E/CN.4/RES1990/74 (December 20, 1989), Art. 5; Lansdown, supra note 32, 3.
[39] Convention on the Rights of the Child. E/CN.4/RES1990/74 (December 20, 1989), Art. 5.
[40] Lansdown, supra note 32, 3.
[41] Id., 23.
[42] The Indian Penal Code, 1860, §82.
[43] Psa Pillai, PSA Pillai’s Criminal Law 71 (12th ed., 2014).
[44] Id.
[45] Id., 72.
[46] The Indian Penal Code, 1860, §83.
[47] Pillai, supra note 43, 72.
[48] Id.
[49] Lansdown, supra note 32, 15.
[50] Id., 5.
[51] Lansdown, supra note 32, 4.
[52] Id., 3.
[53] Convention on the Rights of the Child. E/CN.4/RES1990/74 (December 20, 1989), Art. 5.
[54] Daly, supra note 3, 801.
[55] National Policy for Children, 2013, §4.14.
[56] Daly, supra note 3, 801.
[57] Prof. Raju Kuruvilla v. State of Kerala, WP(C). No.3476 OF 2017(H),¶1.
[58] Id., ¶11.
[59] Id., ¶12.
[60] M. P. Jain, Indian Constitutional Law 1635 (7th ed., 2014).
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