WUNRN
India - How DNA Testing Can Help
Mumbai's Missing Children-Beggars,Trafficked Children-GIRLS
DNA
Testing can protect children used for begging. But certainly not in the way
that the Maharashtra government proposes. Dr. Pravin Patkar responds to the
recurring issue of policy proposed by the Govt of Maharashtra.
The DNA
Proposal
The
Government of Maharashtra proposes to carry out DNA tests on the children used
for begging and on persons in whose custody these children are found. It claims
that the procedure would conclusively reveal if the latter are the biological
parents of the child or not. If they are found to be unrelated, the government
proposes to trace the parents through an online DNA database and thus, reunite
the children with their families. This is not for the first time the government
has announced its intention to bring about such a policy. The proposed policy
option needs to be properly understood as it is being announced repeatedly and
may be taken up for formal approval.
Barring a
few people who have raised their eyebrows over the idea that someone’s DNA
report will be collected and stored by the government in its data bank
apparently there is not much objection to the idea of DNA testing per se.
Considering the seriousness and rising number of the cases of ‘missing and
found but untraced’ children mostly belonging to certain weaker and vulnerable
sections of the society as well as the technological superiority and
indispensability of DNA matching the vague objection to creating a DNA data bank
might not get much attention. Nonetheless it may be stressed at the outset that
DNA data being sensitive must be handled carefully and responsibly.
At face
value the idea looks noble and appealing. On closer inspection it will be clear
that it is vague and full of defects and gaps. What must be appreciated is the
announcement of the State’s desire to do something about the issue of children
used for begging. Although in its current form, it is naďve, poorly
conceptualized, and based on incorrect presumptions.
The
Presumptions in the State’s Design:
The
policy option is based on many presumptions such as;
i. Most
children used at the signal posts for begging are trafficked.
ii. The
person (often a young woman) taking the child around for begging is a
trafficker/ kidnapper.
iii. If
she is a mother then she is not a trafficker.
iv. Most
of them are Indian children and adults.
v. There
is a complaint somewhere in the country about the child going missing.
vi. The
real parents must have approached the local police station to file a complaint.
vii. The
local police station must have filed an FIR as per the Orders of the Supreme
Court.
viii. The
local police station would have carried out the DNA test of the complainant
parents and uploaded the report on the website.
ix. The
website has the technical capability to undertake data matching in all the
states of India and South Asia.
x. The
complainant parents are eager to get the child back.
xi. It is
alright to hand over the child back to the parents from whose custody the child
might have already been trafficked in the past.
xii. The
parents have not knowingly sold the child.
xiii. On
receiving the child back the parents will not sell the child again (and again
and again).
xiv. The
child (especially a little grown up) is keen to go back to and stay with its
parents and in the first place has not run away from the parents not being able
to tolerate starvation, deprivation and physical violence.
Any
social worker experienced in the issues of anti human trafficking, child
protection, violence against children, and missing children in South Asia will
vouch that all of these presumptions are grossly wrong and baseless. The
otherwise is more likely to be true.
The
Questions That are Unanswered By The Proposal:
The
proposal raises some unanswered questions such as;
i) What
if the DNA of the child and its custodian match? Will the state stop at that
presuming that biological parents have a right to use their children for
begging and the State is not mandated to protect those children from their own
parents?
ii) Is it
required to first prove that the child does not belong to the person who is the
custodian of the child in order to protect that child from being used in
begging?
iii) What
if the woman displaying and exposing the child at the signal posts is herself a
victim of human trafficking and is operating under criminal force?
iv) Do
all (or most) States in India and South Asia have a system of keeping biometric
and DNA reports of the complainants?
v) If
they do is there a system of data sharing among the Indian states and the South
Asian countries,
vi) Are
the States in India and South Asia eager to get their children back to their
states? One again, any social worker experienced in the fields of anti human
trafficking, child protection, violence against children, and missing children
in India will answer these questions in the negative.
The
Information Gaps
The
proposal also points at an information gap at the Government of Maharashtra
level. As a research consultant to Plan International on this issue and as a
part of the regional exercise where State, Civil Society Organizations,
International Organizations and SAARC are working together to connect the data
systems of Nepal (Childline), Bangladesh (DNet) and India (TrackChild) to
address the regional issue of missing children, I strongly feel that the above
proposal implies that the government is not aware of what is being promoted at
the South Asian regional level by the governments and SAARC.
If these
children are abandoned children, which is a fact in a high number of cases then
there is no way the parents would approach a police station to file a missing
complaint. If the family does not complain, there is no alternative way to
identify a missing child.
The gap
between missing children and filing of complaints is phenomenal. After the two
17th January 2013 and 10th May 2013 (Writ Petition (Civil) No. 75 of 2012 BBA
Vs Union of India & Ors) Orders of Supreme Court on missing children,
police stations are under pressure to register an FIR in every case of a
missing complaint and start the investigation presuming a trafficking or
kidnapping angle.
As is,
the police stations in South Asia are notorious for refusing to register an FIR
in most crimes. There is little hope to believe that it will be registered in
the case of missing person complaints.
Reunion:
Not Always the Answer
Although
the UN Convention on the Rights of a Child 1989 and the Juvenile Justice Act of
India give prime importance to the restoration of a child in his/her family as
a matter of right it is a lofty ultimate goal. It is also based upon an axiom
that a family is a heaven for its members. A family is not a static phenomenon.
It is undergoing constant transformation.
The
families from where these children go ‘missing’ and join the rank of ‘Found but
Untraced” children living in the metropolises without any responsible adult protection
and supervision are themselves the victims of displacement, uprooting,
impoverishment, collective violence, economic depression, and such other ever
increasing factors. Many of these families are not in a position to provide for
the basic survival of the child. In some cases they look the other way when the
child is being trafficked. At times they sell their own children.
Therefore
restoring a child to the family is not often a wise decision. The state and
civil societies should be guided by the principle of the best interest of the
child. Fortunately both, the UNCRC as well as the JJ Act, acknowledge and
recommend that.
Many
children get physically separated from their families as a result of an
accumulated unfavourable situation primarily resulting from maltreatment,
deprivation, forced migration, and consequent disintegration of the family.
Such situations also fuel domestic violence against children and an episode of
gross verbal or physical violence precipitates their running away from their families
to unknown destinations. There is little desire in these children to go back.
The families, often, are not in a position to provide for their basic
necessities let alone for their developmental needs. In majority of the cases,
reunion with the family is not the solution to the problem.
Even in
cases where the children are actively trafficked it is seen that the family is
incapable of providing minimum protection and support to the child thereby
rendering the child vulnerable to getting trafficked. If the family continues
to be ill-equipped to provide the required protection the chances of the
reunited child getting re-trafficked are almost 100%
The
Loophole
The
proposal conveys that if the DNA reports do not match then the government will
take over the custody of the child from that person and try to locate the
child’s real parents/ guardians for reunion or keep the child in shelter
facilities in the state custody for long term care and protection. The
intention looks good although the path suggested is unnecessary.
As per
the established practice in India where the natural parents/legal guardians of
a child are found incapable of carrying out their parental responsibilities,
the state takes over the parent-ship of the child unto itself with the force of
law (the doctrine of parens patriae).
It is not
at all necessary to prove (whether by DNA testing or otherwise) that the adult
in whose custody the child is found is not the child’s natural parent/legal
guardian. Day in and day out, the states of India (Maharashtra State included)
through legally constituted bodies like the Child Welfare Committee or Juvenile
Justice Board under the Juvenile Justice Act have been doing that as a matter
of routine. In short, when as an established practice, a child can be and is
taken away from its lawful natural biological parents under the force of law
where is the need to conduct the DNA test and prove that the custodian is not
the parent?
What if
the DNA test shows that the woman who is using the child at the signal posts
for begging purposes is the biological mother of the child? Does that mean the
state shall allow her to continue using the child for begging? Of course not!
As under the UN Convention 1989 as well as under the JJ Act the state is
expected to act in the best interest of the child which may also mean taking
over the custody of the child and placing the child with a fit person
(preferably in a foster scheme) or fit institution (institutionalization). Even
in such a scenario, DNA testing becomes unnecessary.
A
Necessary Database
This
author has in the past recommended and demanded ‘careful and responsible’ use
of biometric data as well as DNA test reports to address the issue of ‘missing’
and ‘found but untraced’ children at the South Asian regional level. At a
Global CSR Conclave of NASSCOM in the year 2010 where I was invited to speak on
the issue of ‘Missing children and the role of software industry’ I made a
submission for this.
My
submissions were based on the following points;
i)
In a situation where conventional parameters of identity like name, surname,
height, weight, clothes, address as told by the complainants are unreliable and
where the conventional physical identities like facial photograph are ever
changing especially in the case of children, the use of other biometric
readings and DNA report becomes indispensable.
ii) The
amount of data that need to be fed and matched being huge, use of computerised
internet based data matching systems is indispensable.
iii) As
the nature of the data is sensitive and as the non state actors do not have the
locus standi to gather or disseminate it, the State must be the prime mover
of the solution.
iv) As
the issue is cross border in nature the solution involves extra territorial
authority to ensure sustained coordination between India and the other two
neighboring countries namely Nepal and Bangladesh where the States must own the
solution and be its prime movers.
The head
of UID/Aadhar card scheme Mr. Nandan Nilekani was also a speaker at the event.
In a plenary I had expressed my suggestion to have the DNA of the children
recorded and integrated in the UID data bank.
My
suggestion was to start collecting the DNA reports of the children and their
families initially belonging to the areas from where there are large scale
complaints of missing children as well as to collect the same for the thousands
of Found but Untraced” children where are living without parents, guardians, or
any responsible adult protection in the most popular destination areas
(metropolises like Mumbai). Although Mr Nilekani instantly discarded my demand
as very expensive, I was not convinced of that reasoning.
Found But
Untraced Children
Having
worked on the issue of human trafficking with a focus on South Asia for the
last few decades, I have networked extensively with the anti human trafficking
actors at various levels in some of these countries. The truth that we have
observed is quite bitter. In many cases the parents facilitate the trafficking
of their children. There could be various explanations for this act of the
parents. Many communities are actively involved in facilitating the illegal
migration, smuggling, and trafficking of their own young ones. In such cases
the proposal of family reunion not only becomes irrelevant and impractical but
also dangerous for the children.
Not only
the children used for begging at the signal posts but several other children
are actually living without any responsible adult care, protection and
supervision. They can be easily found in our cities and towns in garages,
workshops, shops, eateries, informal factories, sweatshops, tourism places, and
in such other hazardous workplaces. They are addressed by various terms like
street children, child labour, missing children, abandoned children, trafficked
children etc. It is highly unlikely that there would be a missing complaint
registered in any police station about them.
I insist
on using the term ‘Found but Untraced’ children for them instead of labelling
them ‘missing’. Social intervention in the issue of missing children cannot
start with missing children as it is not a positive category but a mere
‘complaint’. However ‘Found but Untraced’ children is a reality that we come
across every day.
By
setting up data banks that maintain comprehensive biometric data and software
that enables massive data matching it will be easy to find the biological
parents and legal guardians of the ‘Found but Untraced’ children. I am not
suggesting reunion as the only logical next stop. The best interest of the
child may not lie in the child going back to the family.
‘Found
but Untraced’ children are today living all over this country without any
political identity, citizenship, passport, ration card. They have no document
to prove who they are and that they exist. The issue is most ill attended today
but has horrible implications.
A large
responsibility of looking after them is currently carried out by the civil
society organizations. For every such child the civil society organization has
to seek charitable support. Most of these children are living life on their
own. Even if some of them are brought under the residential care of a CSO the
financial burden falls on the CSO and consequently the child gets nothing as a
matter of right. Even when they are given vocational training, without any
identity document to prove who they are, they can hardly move upwards in the
job market and adult life. There is a high probability that most of these
children actually belong to social categories like SC/ST/OBC/DNT/Nomadic tribes
etc and hence are entitled to various services and schemes of the State under
its positive discrimination policies. In absence of any proof of their
identity, they are unable to avail of these reservations and programmes.
Once
their identity is established these children will be able to claim whatever
little asset base they would have otherwise inherited. If they get what is
rightfully theirs then the children will rely less on charity and more on the State’s
funds.
These
children have a right to family name and political identity. Reunion or no
reunion, with DNA based data matching it will be possible to restore their
identity to them. They should not be deprived of their social political
identity merely because they belonged to a weak or incapable or irresponsible
family. It has been my studied observation that in many cases of intra-country
as well as cross-border trafficking the families and the communities act hand
in gloves to deny any identification of the child thereby foiling the efforts
of the governments and CSOs of the destination States. In such cases with the
help of DNA reports the identity of the child can still be established
regardless of the inclination of the family, community and their own state.
While
suggesting the use of DNA test I have unfailingly qualified it by the terms
‘careful and responsible’ to qualify the use of DNA based data as I am aware
that such highly sensitive data falling in the wrong hands can cause severe
misuse. At the same time the importance, indispensability and increasing need
for DNA reports cannot be denied. Crime has become extremely technically
complex and dangerous and the protective measures to be taken against them in
order to protect the citizens cannot be taken with the consent of individual
members. A victim of crime caught up in a dangerous situation is to be rescued
and protected forthwith by the state and the civil society. Any delay in doing
so could result in irreversible damage.
Strengthening
The Existing Protection Mechanisms
Coming
back to the proposal of the WCD Ministry of Maharashtra, DNA testing is not
required to prove that the child used in begging does not belong to the
custodian and thus to justify rescuing the child, even from its biological
parents. The existing laws allow the state to do that without the DNA test
report. The existing machineries like the CWC are aware and experienced enough
to handle such situations. The government should not be very optimistic about
the possibility and propriety of family reunion. Often even well-meaning
families fail to protect their children. Strengthening family based, community
based, school based protection mechanisms is the appropriate recommendation.
An Issue
of Child’s Consent
There are
no two opinions that the children who are used for begging purposes are
children in need of care and protection. It is the responsibility of the state
and the civil society to act fast and yet sensitively in their best interest. A
careful and responsible use of DNA reports will immensely boost the positive
intervention.
There is
a misplaced suggestion that the consent of the victim child should be secured
before taking the DNA test. Clearly the principle of consent is not understood
properly. A victim of a complex crime like human trafficking, it has often been
observed, is not free and competent to understand her situation or to express
one’s consent correctly. The repercussions of many crimes termed as crimes
against individuals are not necessarily confined to the individual.
They have
repercussions to the society as well. Hence the measures to be taken to protect
the individuals cannot be conditional to the consent of the individual. When
the victim is a child the issue of its consent becomes all the more irrelevant.
The permission of their biological parents or legal guardians is also not
necessary and should not be allowed to come in the way of removing the children
from dangerous circumstances. Many children trafficked for the organized crime
of begging are infants- the newborns stolen straight from the maternity homes.
Are we going to wait for their consent?