In late 2019-early 2020, protests broke out in New Delhi and the rest of India against a series of laws, known popularly as the CAA/NRC/NPR laws, which were claimed by them to be discriminatory. The epicentre of the protest was the Shaheen Bagh locality of New Delhi. Observe how repressive child protection laws were used by the authorities against the protestors. Below are various applications before the child protection officials and courts filed by me. I draw your attention in particular to how the current Unicef-backed model of child protection can be used against families, especially mothers, to block them from political participation. The background to this episode was the tragic death of a newborn whose mother had brought him to the protests and who is said to have declared emotionally that he was a martyr to the cause. This is an example of the criminalisation of human emotions and reactions under this model of child rights.

January 27, 2020

Mr Priyank Kanoongo

Chairperson, National Commission for the Protection of Child Rights

Chandralok Building, 5^th Floor

Janpath, New Delhi – 110001

 

1. Ms Harleen Kaur

District Magistrate, South East Delhi

Old Gargi College Building

Lajpat Nagar IV, New Delhi – 24

 

Re: Children at Shaheen Bagh

Dear Mr Kanoongo,

We are writing in response to recent media reports (attached below) of a letter written by the National Commission for the Protection of Child Rights (NCPCR) to the District Magistrate of South East Delhi making a number of wrong allegations about children at the on-going protest at Shaheen Bagh and ordering various threatening actions to be taken against them and their parents.

WE CONDEMN THE BLATANTLY POLITICAL INTERVENTION OF THE NCPCR IN THE SHAHEEN BAGH PROTESTS BY THREATENING ACTION AGAINST THE CHILDREN OF THE WOMEN PROTESTING THERE.

As for the specifics of your letter as reported in the media, first and foremost, please be informed that THERE ARE NO MENTALLY TRAUMATIZED CHILDREN AT THE PROTEST. Many of the undersigned have been regularly joining the protests at Shaheen Bagh and have witnessed the children there firsthand. Footage of the protest showing the children relaxed and well is also widely available in the public domain.

The children are secure in the company of their mothers, grandmothers, aunts, neighbours and friends. They are not in the least traumatized, on the contrary, they radiate happiness and confidence as they play around their loved ones and engage in study, reading, colouring and other activities in the children’s activity areas that volunteers have set up at the protest venue. The children come for a few hours and then return home with their relatives.

The Shaheen Bagh protest is in fact a positive experience for the children. It is an historic lesson to the children in expressing dissent by means of peaceful protest. It is also very good for the children of humble backgrounds to see their mothers, aunts and grandmothers in a new assertive public role.

Though the concerns of the protestors are serious, the dominant mood is one of humour, optimism and patriotism. A constant motif is the Constitution of India with regular readings of the Preamble and the singing of patriotic songs from our Freedom Movement. Pictures of our Founding Fathers dominate the stage. The protest is a celebration of democracy.

It would appear that the NCPCR HAS FAILED TO CONDUCT ITS OWN INQUIRY AS MANDATED UNDER SECTION 13 of its constituting statute (the Commissions for the Protection of Child Rights Act, 2005), and relied solely on the claims of the unnamed complainant in issuing its order.

WE WOULD LIKE TO REMIND YOU THAT YOUR OWN RULES REQUIRE THAT THE NCPCR “ENSURE ITS WORK IS DIRECTLY INFORMED BY VIEWS OF CHILDREN IN ORDER TO REFLECT THEIR PRIORITIES AND PERSPECTIVES (Rule 17(d))” AND TO “PROMOTE RESPECT AND SERIOUS CONSIDERATION OF THE VIEWS OF CHILDREN IN ITS WORK AND IN THAT OF ALL GOVERNMENT DEPARTMENTS AND ORGANISATIONS DEALING WITH CHILD (Rule 17(e)).” Your order under Section 13 is in direct contravention of your own rules.

Assuming the videos cited by the NCPCR according to media reports are genuine, if the minors have expressed concerns about loss of citizenship and placement in detention camps owing to the recent actions of the Government, then it is the duty of the NCPCR to report the concerns of the children to the relevant authorities, and not to rubbish them as mental cases. It is also perplexing that the NCPCR has not been moved to inquire after the pathetic state of children in detention camps and instead chooses to question only children who are peacefully protesting at Shaheen Bagh. It is in the nature of political protest for language to be dramatic, even strong. This cannot be a reason for denying participation by children. In doing so the NCPCR IS VIOLATING THE RIGHTS OF THE CHILD TO FREEDOM OF ASSEMBLY, FREEDOM OF EXPRESSION AND FREEDOM OF THOUGHT AND CONSCIENCE UNDER ARTICLES 15, 14 AND 13 OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD (UNCRC).

We are also extremely concerned about your ominous directions to refer the children for “counselling” for expressing their political beliefs. Examples abound in history and in the present times of state sponsored “counselling” being used to isolate and victimize communities. We demand you explain what you meant by “counselling” of the children and their parents.

Your orders for police officers to “identify” children and their parents at Shaheen Bagh for counselling and have them produced before the Child Welfare Committee are in any case illegal. The NCPCR has no authority under its statute to order counselling for adults or to direct the police to pick up or obtain the identities of children accompanied by mothers or lawful custodians at any venue. In doing so the NCPCR HAS VIOLATED THE RIGHTS OF CHILDREN TO THEIR PRIVACY AND AGAINST ARBITRARY INTERFERENCE WITH THEIR FAMILY UNDER ARTICLE 16 OF THE UNCRC.

It is most unfortunate, indeed shocking, to see the NCPCR itself violating child rights under the United Nations Convention on the Rights of the Child, the very law that it was constituted to protect and uphold.

By targeting minors at the protest, you are also in effect targeting the womenfolk who have come out of their homes to participate in the protest which is their democratic right. An indefinite sit-in by mothers and grandmothers will inevitably involve the presence of children and your actions not only suppress children, but also to block the women from protesting and drive them back home.

We also question why the complainant at whose instigation the NCPCR issued its orders under Section 13 has not been disclosed. As per its own code of conduct as notified on its website, the NCPCR is not supposed to entertain complaints that are anonymous or given under pseudonyms. We demand that the NCPCR make public the identity of the complainant and clarify whether it took any steps to verify the provenance of the complaint. 

In conclusion we repeat our condemnation of your blatant politicization of the NCPCR. You have stated that the Shaheen Bagh protest is based on “rumours and miscommunication” about the Citizenship Amendment Act. But it is no part of the NCPCR’s powers to express a view on this or any peaceful protest. Moreover, the issues of citizenship and constitutionality being agitated at Shaheen Bagh are being echoed across the country by people from all walks of life and all sections of society. The protests have continued for over a month without pause and are causing international embarrassment to the government. It is deeply regrettable that you have allowed the NCPCR to be subverted to stifle the ongoing protest.

WE DEMAND AN IMMEDIATE RETRACTION OF YOUR LETTER AND A COURSE OF COUNSELLING TO ALL MEMBERS OF THE NCPCR IN ITS OWN LAWS AND RULES FOR RIGHTS OF THE CHILD.

We urge Ms Harleen Kaur, District Magistrate South East Delhi to take the above into consideration in preparing her report and permit a delegation of us to meet with her and present evidence of the children being secure and well at the Shaheen Bagh protest. We can be contacted at shaheenbaghchildren@gmail.com.

Links to some samples of the media reports referred to above:

https://indianexpress.com/article/cities/delhi/counsel-kids-in-shaheen-bagh-may-suffer-mental-trauma-ncpcr-6228713/

https://timesofindia.indiatimes.com/city/delhi/worried-for-kids-at-shaheen-bagh-ncpcr/articleshow/73506136.cms

https://timesofindia.indiatimes.com/city/delhi/worried-for-kids-at-shaheen-bagh-ncpcr/articleshow/73506136.cms

 

Signed (endorsements continue to come in, we will update you periodically):

 

1. All India Democratic Women’s Association (AIDWA), aidwacec@gmail.com
2. Dr John Dayal, Journalist, Writer and President, United Christian Action New Delhi
3. Nandita Rao, Lawyer, New Delhi
4. Kalyani Menon-Sen, Feminist Learning Partnerships, Gurgaon
5. Natasha Badhwar, Writer
6. Suranya Aiyar, lawyer and mother of two, New Delhi
   mamasuranya@gmail.com
   Comment: “I have joined the protest on a number of days at Shaheen Bagh and can testify that the children there are cheerful and not traumatized in any way.”
7. Achla Sawhney, retired banker, achla.sawhney@gmail.com
   Comment: “I am 66 years old and have been to Shaheen bagh on various occasions. Have never seen any child anxious or traumatized. I can surely testify on this account.”
8. Malabika Mazumdar: “I fully endorse the views expressed in the letter. Children will become better citizens of tomorrow when they see how their mothers have come out in the open and joined the protest movements
   I have visited Shaheen Bagh found the children quite self contented. There is no sign of trauma in their countenance.”
9. Radhika Khajuria: “Strongly endorsed. I have gone myself and have also taken my 9 year old daughter to join the Shaheen Bagh protests and can attest to the fact that children were happy, playful and not traumatized in the least.”
10. Barun Mitra, concerned citizen, Dwarka, New Delhi
    mitra.bs@gmail.com:“I have been to Shaheen Bagh and Jamia a few times in the past one month. What makes these gatherings quite unique is the almost festive atmosphere, where whole families, particularly women with children felt safe and free despite the crowd. Kids waving the national flag, sporting tri-colours on their cheeks, forehead, or wrists is a pleasure to watch, something that is usually reserved for sporting arenas.”
11. Smriti Nevatia, Bombay: “Children are citizens too. And at Shaheen Bagh they are learning invaluable lessons about citizenship, while being looked after well, making new friends, having fun. Don’t invent trauma to justify your mean-spirited harassment of protestors on behalf of your masters.”
12. Meera Rizvi, writer and mother: “I have been to the Shaheen Bagh protest site on a number of occasions and I have seen children usually sitting with mothers and aunts, participating in a community activity. As any child development expert can confirm this is not just harmless, but absolutely essential for a child’s emotional and social growth.”
13. Khushboo Jain, Child Rights Activist, India: “I have been not just to Shaheen Bagh but several other protest sites in India. In none of these sites have I ever seen a child traumatized. These protest sites are infact giving a new vision of space in the country where children are in a playful yet powerful and safe space, unlike the everyday space in urban India. Children exercising their agency is normal and its time protection agencies breathe easy. “
14. Megha Srinivasan, Delhi: “I have been to Shaheen Bagh several times in the past few weeks and have found the children to be happy and joyful. Those who participate in sloganeering are definitely not ‘cases’ – they are forced to fight for a cause early on in their life and I see nothing wrong with that.”
15. Vinod C. Khanna: “As one who has personally visited Shaheen Bagh I wholly endorse the petition against the order relating to children at the protest.”
16. Asad Ashraf, New Delhi
17. Mani Shankar Aiyar, former Member of Parliament, New Delhi
18. Air Vice Marshal (retd) Kapil Kak, Uttar Pradesh
19. AGK Menon, New Delhi
20. Vimochana, forum for women’s rights, Bangalore
21. Sumi Krishna, Bengaluru
22. Shuddhabrata Sengupta, Delhi, shuddha68@gmail.com
23. Badri Raina, Author & Columnist
24. Vandana Viswanath, Chennai: “NCPCR should be using its observations to advise and pressure the home minister to rollback the draconian CAA and the Prime Minister to come and speak to the protesters. Threatening and demonising the mothers of the children smacks of high-handedness and seems like a coercing tactic, not expected out of NCPCR.”
25. Shruti, Chennai
26. Charanya Khandhadai, Entrepreneur, Chennai
27. Pavitra Ramanujam, Lawyer and Project Coordinator, Association for Progressive Communications, Chennai: “Why aren’t the NCPCR worried about what will happen to children under the NRC or if they are separated from their parents because they don’t have documents? It’s already happened in Assam.”
28. Gayathri Kandhadai, Lawyer and Project Coordinator, Association for Progressive Communications, Chennai: “NCPCR should not reduce the intelligence and comprehension skills of children. They are equal stakeholders in the struggle for reform. NCPCR should be worried about the kids who were shouting ‘goli maaro saalon ko ..desh ke gadaaron ko’.”
29. Elizabeth Sheshadri, Lawyer, Madras High Court, Chennai:
    “This step by NCPCR seems intended to intimidate the peaceful protesters of Shaheenbagh. I recall the images of the kids in khakis with lathis and knives in their hands…
    Many of us have been to the Shaheenbagh protests and have observed that the children are learning on the ground the true meaning of citizens participation and democracy, secularism and unity in diversity, empathy and liberty. Isse behathar education civics or entire political science me aur kahaan milenge? The ideo of threatening citizens into submission and meekness and silence by threatening to take away their kids or actually doing it is an old strategy….we saw it in kashmir and UP. Don’t try through backdoor methods what you can’t do directly.”
30. Niranjani Iyer, Chennai
31. Lakshmi Narasimhan, Chennai:”NCPCR wants to police the children and dismiss their capacity for thought and self direction, but cannot offer a single word on the atrocities inflicted upon children by state police in UP, Kashmir and many other places”
32. R. Vaigai, Advocate, Madras High Court
    33. Sudha Ramalingam, Advocate, Madras High Court
    34. Anna Mathews, Advocate, Madras High Court
    35. Devika S, Advocate, Madras High Court
    36. Geetha, Advocate, Madras High Court
    37. A.J.Jawad, Advocate, Madras High Court
    38. Anees Jawad, Advocate, Madras High Court
    “Thanks for creating this initiative in solidarity with the fighting mothers.”
33. Lakshmi Krishnamurty, lakshmi33@gmail.com, Bangalore.
34. Vikram Lal, New Delhi
35. Janaki Nair, Professor, Centre for Historical Studies
    School of Social Sciences, Jawaharlal Nehru University
    New Delhi
36. Anita Dumra, Bangalore
37. Vandana Mahajan: “In full solidarity and endorsement for the said cause. With love and affection to Shaheen bagh ke bache, mahilayein , Zindabad
38. Ritu Dewan, Former Director & Professor, Department of Economics (Autonomous), University of Mumbai
39. Supriya Jan, Activist, Mumbai
40. Rani Day, Bangalore
41. Surinder Singh Maan, Karnal, Haryana
42. Susie Tharu, Hyderabad
43. Sharmila Sreekumar, Mumbai
44. Laxminarayan Ramdas
45. Ursila Jung , New Delhi
46. Dunu Roy, Ecologist
47. Apurva Vivek, Advocate, Jharkhand HC: “Long live the resistance! Long live the children of Shaheen Bagh! “
48. Nisha Biswas, Kolkata
49. Samina Mishra, Delhi, Filmmaker, Writer and Teacher
50. Sherna Dastur, Delhi
51. Lata Singh, JNU, Delhi
52. Vibhuti Patel
53. Manjula Pradeep
54. Rachana Johri
55. Nandini Manjrekar
56. Meena Seshu
57. Swapna Liddle, Delhi, Author and Historian
58. Kamayani Bali Mahabal, Activist & Blogger (Kracktivist)
59. Shewli Kumar, Tata Institute of Social Sciences, Mumbai
60. Radhika Radhakrishnan, New Delhi
61. Karuna D.W., Chennai
62. Rajinder Chaudhary, Former Professor, Department of Economics,M. D. University, Rohtak & Advisor, Kudarti Kheti Abhiyan, Haryana
63. Sabina Mehta Jaitley
64. Rituparna Sengupta, PhD scholar, Delhi
65. Amrita Chhachhi
66. Padmaja Shaw, Hyderabad
67. Geeta Ramaseshan, Advocate, Chennai
68. Sana Aiyar, Associate Professor of South Asian History, Massachusetts Institute of Technology, Boston, and New Delhi
69. Shahbaz Khan Shervani, Social Worker, England
70. Yasmin Menon, New York, JMI alum
71. Pallavi Gupta, Hyderabad
72. Mukulika Akbar, Seoul, South Korea
73. Dr.(Ms.)Najmul Arif
74. Anuradha, anuradhapati.wordpress
75. Anjali Pawar, Child Rights Advocate, Pune
76. Vani Subramanian, Filmaker, New Delhi
77. Veena Mishra, ex Doordarshan Newsreader, Mumbai:”I totally support that the ladies and families of Shaheen Bagh who are carrying out peaceful protests for an issue so dear to them should not be embroiled in any kind of controversie
    specially regarding the children and youth.”
78. Subhash Mendhapurkar, Social Uplift Through Rural Action- SUTRA, Himachal Pradesh

Shafiqur Rahman Khan, New Delhi, shafiq@outlook.in

85. Menaka Neotia
86. Vrinda Gopinath: “I condemn the government’s action.”
87. Angbin Yasmin, Assistant Professor, New Delhi
88. Dr Padma Deosthali, Mumbai
89. Ashok Kumar Sharma, IFS (Retd.)
90. Amitabha Pande, (IAS-Retired) Noida, NCR
91. Govind Kelkar
92. Sagarika Chakraborty, Kolkata, Software Engineer
93. TK Sundari Ravindran, Retired professor of Public Health, Trivandrum
94. Sonalini Mirchandani
95. Neha Sood, M.A. Social Work, Mumbai
96. Pallavi Aiyar, Tokyo, journalist, author and mother
97. Krishna Sarma, New Delhi
98. Hindal Haidar Tyabji, New Delhi
99. MG Dawood Miakhan, Correspondent, Qauide Milleth College, Chennai: I strongly endorse and agree with this statement.
100. Sayoni Basu, Gurgaon, editor and author
101. Ratnaboli Ray, Mental Health Activist, Kolkata
102. Meenakshi Mishra: “Children sense more than any of us will know and realise. This movement will stay with them as an example, that their parents stood up for their beliefs with all odds against them in chilling cold of Delhi, for safe future and nation building. When children aren’t left behind in parents’ sacrifices, why should they be left behind in resistance.
103. Sehba Farooqui, AIDWA
104. Kamini Karlekar
105. Aatreyee Sen, Himachal Pradesh
106. Sagari R Ramdas, Food Sovereignty Alliance, India
107. Alaka Madhok, New Delhi alakamadhok@gmail.com
108. Loveleen Sagar, Gurgaon
109. Zebha Akhtar
     110. Paramjit Bahia, Former General Secretary of British Indian Councillors Association (UK), UK: “These excellent legal arguments against unbelievably silly stance adopted by those who are supposed to protect the rights of Indian children but appears to be violating their freedom of expression makes me wonder if there is some secret political purpose behind the very disturbing attitude adopted by the NCPRC.

Rather than wasting resource on intimidating the new generation and their parents involved in peaceful Gandhian style protests under flossy excuse of ‘counselling’ the persons in charge of the NCPRC should be spending sometime reading and understanding the constitution of India, that guarantees freedom of expression to every Indian without denying the same to young ones.

But as an ordinary layman not a lawyer, I would like to argue against legally questionable actions of the NCPRC on the grounds of morality.

Thanks to the natural progress of the human race the the ceilings of older people have become the next floor for our children, they are more aware and concerned about the type of world they will be living in when the laws of nature would have taken care of us lot.

Environmental campaigners like Greta Thunberg and millions of kids around the globe who got inspired by her, are participating in Gandhian style non-violent protests to rescue the Earth from the enormous damage caused by the older people who were encouraged by the governments of supposedly advanced nations to keep on vandalising the nature’s treasures. Just like the

Prime Minister of India who canvassed Australian authorities to allow certain super rich owned business to dig coal in Australia, where environmental vandalism has caused enormous fires.

So it is not surprising that the young ones in Shaheen Bagh may be raising slogans to save not only the book but the real secular and socialist spirt of Indian Constitution, according to which every Indian citizen is equal and citizenship can’t be decided on the basis of any religious beliefs, caste or gender.

Those who really care for India, should be thankful that rather than becoming hooligans and misbehaving yobs, the by joining their parents at Shaheen Bagh these children are ignoring religious caste and class divides, uniting as Indians, waving the Tricolours with pride and either reading or listening to admirable contents of the constitution being read by others.”

APPLICATION IN COURT

APPLICATION FOR INTERVENTION

TO,

THE HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE

PETITIONER ABOVE-NAMED

MOST RESPECTFULLY SHEWETH:-

1. This Hon’ble Court has taken up the issue of whether the involvement of children and infants should be stopped at demonstrations and agitations on the basis of a letterreferring tonews reports of the death of an infant who was taken to an on-going protest in New Delhi in the area of Shaheen Bagh.
2. The Applicant is a lawyer who was educated at St Stephen’s College, New Delhi and obtained her LL.B. and LL.M. at Oxford University and New York University, respectively. She worked for 6 years from 1998 to 2004 under various senior counsel in the Delhi High Court and Supreme Court and thereafter for 6 years as a corporate lawyer in the law firm J. Sagar Associates where she became partner in the year 2007. In 2010 the Applicant quit her job in order to care for her children as a stay-at-home mother. Her children are now aged 10 years and 8 years.
3. Since the year 2012 the Applicant has been working from home on the issue of child rights helping pro bono Indian parents whose children are unjustly removed abroad by child protection agencies. The Applicant has written extensively in English and Hindi on child protection laws in a number of publications including the Hindustan Times, the Telegraph, The Sunday Guardian, Dainik Jagran, Hindustan, NDTV’s English blog and NDTV Khabar. Over the years she has gained a broad range of knowledge of child protection laws in different jurisdictions in India and abroad. She has helped parents in Norway, the USA and the UK to be reunited with their children. In the course of her work in this field she has collaborated with lawyers, journalists, academics, activists and victims all over the world who are concerned about the unjust removal of children from innocent families and other harassment of families by overzealous child protection agencies. In 2018, the Applicant was awarded a Laureate by the Nordic Forum for Human Rights, a Scandinavian human rights organization for her work in this field. She runs a website called www.saveyourchildren.into spread awareness of this issue.
4. Both as a mother and a lawyer the Applicant is deeply concerned about all aspects of child welfare – legal, educational, emotional and cultural. She has written and illustrated a series of books for children of the ages 0 to 11(www.mamasuranyabooks.in).The idea of her books is to have stories and illustrations for Indian children that are rooted in our culture, history and artistic traditions.
5. The Applicant believes that a number of issues vital to the welfare of children and mothers arise when considering the imposition of any ban or other restriction on the participation of infants and children in demonstrations and agitations. Such restrictions would have far-reaching implications for mothers and children of all backgrounds around the country. The Applicant humbly seeks leave to make submissions in the present case based on her knowledge and experience both as a mother and from her specialized work in child protection in multiple jurisdictions.
6. The Applicant submits that since the matters at hand have serious implications for mothers, the voice of mothers ought in fairness and justice to be heard in this regard. Mothers have a deep knowledge of the needs of children and the Applicant submits that her submissions coming from a mother’s perspective would greatly enrich and inform consideration of the matters arising in the present case.
7. In view of the Hon’ble Court’s taking suo moto consideration of a ban on the involvement of children and infants in demonstrations and protests and the initiation of police action against a mother and/or organizers of a demonstration for taking an infant to a protest who subsequently fell ill and died, the Applicant seeks leave to address the Hon’ble Court on the following issues:

(a)     Whether a ban on bringing along infants and children to demonstrations would be an unreasonable and excessive infringement, and have a chilling effect, on the constitutional rights of mothers to freedom of expression, assembly, movement, privacy, bodily integrity, dignity and equality as protected under Articles 14, 19 and 21 of the Constitution?

(b)     Why any rule mandating the separation of infants from mothers at any place or for any activity and for how ever short a duration would inhibit mothers, and the women sharing childcarein her circle, from going to such place or engaging in such activity?

(c)     Whether an outright ban on bringing along infants and children to demonstrations owing to risks to their health from the weather or crowds satisfies the test of “least invasiveness” and minimal restriction of rights to freedom of expression, assembly, movement, privacy and dignity?

(d)     Whether the onus is on the state to ensure the safety of children and infants brought to a peaceful protest?

(e)     Whether the Hon’ble Court ought to, in its writ jurisdiction place bans on the right of mothers and children to attend demonstrations or should the Hon’ble Court’s intervention be limited to measures that would enable mothers and children to attend demonstrations freely and safely?

(f)      Whether this Hon’ble Court has the power in its criminal writ jurisdiction to prescribe rules for the welfare and safety of infants and children when such laws and rules are already in force and institutions to implement them and prescribe regulations have already been established, such as the national and state-level child rights commissions, child welfare committees, district child protection units and designated police force?

(g)     Whether it is a denial of the rights of a mother to privacy and against self-incrimination and constitute cruel, inhuman and degrading treatment for police action/investigation to be initiated against her based on herwords as alleged and sensationalized in the media and said in grief and shock over the unexpected loss of a baby?

(h)     Whether the interest of society and the state lies in comforting and counseling such a mother or in initiating police action/investigation against her?

SUBMISSIONS

Children are not merely objects of care and protection

8. An understanding of children merely as objects of adult care and protection would deny them their full personality and natural place in human society. Children are not merely objects of care by their mothers, isolated from participation in wider society. They are not merely future adults.As children they are part of the living, present fabric of society.They are so integral a part of the human experiencethat we cannot conceive ofa childless society, except as a bleak, unreal and disorienting fiction.
9. So the presence of children among other people anywhere is in the natural scheme of things. As such there is nothing inherently inimical or surprising in the presence of children at demonstrations and agitations, no less than at weddings, festivals, carnivals, parties or feasts.
10. Undeniably, infants and small children do not understand what it is they are participating in, but their presence is notdispensableor less valued ormeaningful for that reason.They participate because they are part of their nation, community or family, depending on the nature of the event. They participate as our kith and kin and as our mascots. In our adult presence, children feel secure and happy, and we in turn cherish their presence because they fill us with joy and hope. This human theatre can be witnessed in any gathering where children are brought along, from family gatherings to public demonstrations. The presence of children in any peaceful setting needs no justification as it is part of the natural conduct of human life.

Children are ever-present in Indian society, especially amongst the poor

11. In India in particular, across all communities, inter-generational segregation is not a prominent feature of life. In the cities and towns, the vast majority of people, young and old,spend day and night together in congested neighbourhoods and crowded homes. Children are ever-present in India among adults. Therefore, any rule barring the presence of children from any place would be a disruption of this natural order of things.

Children have a natural right to the company of their elders

12. It follows that children have a natural right to be in the company of their elders, especially their adult family members, and a natural right against being segregated from them.
13. Our constitutional jurisprudence has recognized in a catena of cases that the right to life under Article 21 protects not mere animal existence but all forms of expression and enjoyment of human personality and natural rights (Justice KS Puttaswamy (Retd) vs Union of India and Ors(2017) 10 SCC 1 paragraph 89, paragraph 2 and 3 of Conclusion and Section G “Natural and Inalienable Rights.). These natural rights are cordoned off from state interference even if they are not specifically mentioned in the Constitution.Natural rights have been held to be not just derivative from Part III of the Constitution but the underlying premise of the Fundamental Rights without which these rights cannot be achieved. It is submitted that the recognition of natural rights as implicit in the expressly stated fundamental rights in our Constitution is vital to securing a social order where the state servesthe people, and not the reverse.
14. In view of the above, it is submitted that the starting point for this Hon’ble Court should be that children and adults should be free to be in each other’s company at any time or place and the onus would be on the state to justify the segregation of children from adults in any setting.

Mothers’ rights to autonomy and privacy in child raising – are there such rights? What are their limitations?

15. Mothers may be motivated by a variety of reasons for attending demonstrations along with their children.A mother may carry her children to a protest because she protests not merely as a citizen among other citizens, but as a mother. If demonstrations are a form of expression, then nothing expresses a protesting mother’s motherhood so clearly as her bringing her children with her.
16. Such a language of protest would be natural in a country with our history of Satyagraha. Mahatma Gandhi taught us as a people to claim our rights through Satyagraha. Satyagraha is an appeal to the conscience of those in power through peaceful public demonstrations that lay bare the protestors’ suffering and sense of injustice.The spirit of Satyagraha is replete in our Constitutional jurisprudence upholding the right to participate in peaceful public assemblies (see, for instance, Ramlila Maidan Incident2012 (5) SCC 1/AIR2012 SC 3660).
17. It is submitted that any in decision on the contours of a mother’s right to protest should see a mother’s bringing her children to a protest as a form of Satyagraha whereby shemay seek to express the suffering of her family; or the threat to her children’s future of the measures she protests; or to remind the world of her suffering, sacrifices and rights as a mother, as the one who brings life into this world.
18. There are a number of other more pragmatic reasons why a mother may bring her children to a demonstration. She may do so as she has nowhere else to leave them or simply because it is a natural part of her routine to carry her babies with her wherever she goes. Among the poor of India in particular, infants and children are constantly in the company of their mothers or other womenfolk of the community.
19. A mother may accompany her older children to a protest not so much as a protestor herself but to supervise them and look out for their safety.
20. A mother may carry her children to a demonstration because she feels vulnerable, exposed, intimidated and insecure remaining at home alone, while the other women and men of her neighbourhood are away at the demonstration.
21. In this way there are avariety of motivations and compulsions for mothers to bring their children (or accompany them), whether babes-in-arms or older children, to demonstrations. It is submitted that in all of these kinds of decisions and actions a mother is entitled to be “let alone” in the famous phrase of privacy rights law to be “let alone” by the state. (R. Rajagopal v State of Tamil Nadu, 1994 6 SCC 632, KS Puttaswamysupra among others).
22. Like mothers, children may have a variety of reasons for going with their parents to a protest. A very small child or baby may accompany his mother to a demonstration simply because he wants to be with her. An older child may be attracted by the drama, colour, songs and opportunity to play with other children. A teenager may go out of his or her own convictions and budding political and social beliefs. It is a fact that children often imbibe the political and social beliefs of their family and community. So long as children are not being taught or encouraged to commit any criminal or immoral act, there is nothing objectionable in this. This Hon’ble Court has observed in Romesh Thappar v State of Maharashtra AIR 1950 SC 124 that freedom of speech and expression includes freedom of propagation of ideas. Solidarity of political belief between young and old of the same community or background can be witnessed the world over. This is in keeping with the natural scheme of familial and community interaction.
23. It is submitted whatever reasons a child may have for attending a demonstration with a parent, they fall within the area of autonomy in which they are entitled to be “let alone” by the state. A blanket ban on children accompanying their parents or lawful custodians anywhere would also be contrary to the rights of children to privacy and against arbitrary interference with their family under Article 16 of the United Nations Convention on the Rights of the Child (UNCRC).
24. Under the UNCRC which has been ratified by the Indian Parliament, children have the right to Freedom of Assembly, Freedom of Expression and Freedom of Thought and Conscience under Articles 15, 14 and 13, respectively. A ban on children attending demonstrations and agitations would directly contradict these rights.

The right to privacy

25. The right to privacy has been affirmed by this Hon’ble Court in the seminal case of KS Puttuswamy as both a part of the right to life under Article 21 and as the implicit principle underlying all the fundamental rights in Part III of the Constitution (para 3B, Conclusion). In his concurring decision in this case SA Bobde, J. opined that “privacy is more than merely a derivative constitutional right. It is the necessary and unavoidable logical entailment of rights guaranteed in the text of the Constitution. Not recognizing character of privacy as a fundamental right is likely to erode the very sub-stratum of the personal liberty guaranteed by the Constitution (paragraph 36).” (See also concurring judgment of Abhay Manohar Sapre, J. in KS Puttaswamy at paragraphs 14 and 15).

Privacy as a natural right

26. Explaining the notion of privacy, this Hon’ble Court opined in K. S. Puttaswamy that “[paragraph 40] privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality…..[paragraph 45]…The concept of natural inalienable rights secures autonomy to human beings.”

Case-by-case enumeration of privacy

27. Privacy has not been defined exhaustively in KS Puttaswamy or other cases on privacy.Rather, different aspects of privacy have been developed on a case-by-case basis, setting down the principles and objectives of this right (see for instance, concurring judgment of Abhay Manohar Sapre, J. in KS Puttaswamy at paragraphs 27 and 31). These principles and objectives serve to guide us in considering whether a right to privacy exists in a given set of circumstances.

Sanctity of family life, the right to make intimate decisions and individual autonomy

28. Some of aspects ofprivacy enumerated by the Hon’ble Court in various decisions are the sanctity of family life, the right to be left alone and the ability of the individual to control vital aspects of his or life (para 3F, Conclusions, KS Puttaswamy).The right to freedom from arbitrary interference in family life is already expressly stated as part of the right to privacy in Article 12 of the Universal Declaration of Human Rights (UDHR), Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and Article 16 of the UNCRC, all of which have been ratified by our Parliament.

Mother’s right to raise children

29. A mother’s right to raise her children was recognized by this Hon’ble Court in the case of Suchita Sharma vs. Chandigarh Administration (2009) 9 SCC 1/AIR 2010 SC 235 (para 11: “taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”). This was a case where the state was attempting a forced abortion of a young woman on the ground that she was not mentally fit to adequately fulfill maternal responsibilities. However, the Hon’ble Court, noting her expressed wish to have her baby, affirmed her right to bear and raise her child on the basis that her right to “privacy, dignity and bodily integrity” must be respected.
30. The doubts expressed as to her ability to raise the child were according to the Hon’ble Court in this most humane of decisions not a reason to deny her the ability to raise a child, but rather a reason for the state to provide her such support as would be necessary to have and raise her child properly (paragraph 31). It is submitted that it is this enabling approach that should be adopted by the Hon’ble Court in considering whether or not to permit mothers to take their children to protests.
31. It is submitted that the privacy protection should extend to decisions taken by a mother about her child, so long as they are not abusive, exploitative or constitute neglect.Such a privacy right would be subject to reasonable restrictions which are discussed later in this submission under the heading ‘Safety of children at demonstrations.”
32. In Gobind vs. State of Madhya Pradesh &Anr (1975) 2 SCC148 this Hon’ble Court held that “[paragraph 24] any right to privacy must encompass and protect personal intimacies of the home, the family…motherhood…and child rearing.” It is submitted that family life would include all the sentiments, activities and relationships that make up family life, including the types of values and beliefs taught to a child by a parent and the types of activities they engage in as a family. This would fall within the notion of “intimate decisions” which according to Chelameshwar, J. in his concurring judgment in KS Puttuswamy (para 36) was one of the three facets of the right to privacy.
33. Such intimate decisions are also entitled to protection as coming under the concept of “mental privacy” which has been enunciated by this Hon’ble Court in the decision of Selvi&Orsvs State of Karnataka &Anr (2010) 7 SCC 263/AIR 2010 SC 1974 (para 205 and 214). Intrusion into a person’s mental processes was also held in Selvi to be an affront to human dignity and to constitute a form of cruel, inhuman and degrading treatment prohibited under developing international norms on this issue.
34. On mental privacy this Hon’ble Court also held in KS Puttaswamy (paragraph 169) that “the intersection between mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right and the freedom of self-determination.”
35. This freedom to raise children according to your beliefs and values, provided they are not criminal or immoral, should extend to all aspects of the child’s life. It is submitted that the freedom to care for your children to the best of your judgment and ability ought to be recognized under the right to life and privacy under Article 21 of the Constitution.
36. Parents are the natural care givers of their children. Caring for your children is a fundamental aspect of family life. Such care is not restricted to providing them with food, shelter, education and love. A child’s future is at stake in the laws and policies of the nation he inhabits, especially those affecting citizenship, identity, faith and fundamental rights. Therefore, it is submitted that parental care extends to concern about your children’s social and political rights when they grow into adulthood. It is submitted that it is within the sphere of privacy-protected family life and intimate decisions to endeavor to secure your children’s future social and political rights, by participating in the political life of their nation, including by participating in demonstrations and agitations with them to this end.

 

Right to authenticity

37. In the case of BinoyVisman v Union of India (Writ Petition (Civil) No. 247 of 2017) an argument was put forth by counsel that the right to dignity includes the ability to make an “authentic decision” from an individual’s point of view: “[paragraph 45] living with dignity involves giving importance to…acting independently out of a personal sense of character and commitment to standards and ideals we stand for.” It is submitted that permitting individuals to act authentically to themselves includes bringing up your children according to your values and introducing them to activities that you believe are meaningful and beneficial to them and the wider community. This would include taking your children to demonstrations and agitations.

Right to freedom of movement

38. While privacy laws originated in cases dealing with the sanctity of the home as a physical place free from state intrusion, KS Puttaswamy traces how these were developed through judicial construction to attach not so much to a place as to the person. Today privacy is understood as a right that inheres to the person even when he moves from the private to the public sphere. In the eloquent phrase of SA Bobde, J., “privacy is a travelling right”.On this principle it is submitted that the sanctity of family life is not confined to the home but applies to families wherever they choose to go, including to demonstrations or agitations.
39. A blanket restraint on taking your children to demonstrations and agitations would offend the right to dignity which has also been recognized by this Hon’ble Court. In Francis Coralie Mullin (1981) 1 SCC 608 (at paragraphs 7 and 8) (quoted with approval in KS Puttaswamy at paragraph 98) this Hon’ble Court held that the right to dignity is an essential part of our constitutional culture which seeks to ensure full development and evolution of persons and includes expressing themselves in diverse forms, freely moving about and mixing and co-mingling with fellow human beings.
40. Additionally, it is submitted that any interference with the freedom of a mother to decide to accompany her children to a protest to supervise them, or to take her children there because she feels there is safety in numbers, would also constitute cruel and degrading treatment of her and her children.

Effect on mother’s right to protest by banning infants from protests

41. A question that may be asked is why leaving a child at home for a few hours would impinge on a mother’s freedom to protest. In the first place, as already submitted above, a mother may bring her child or baby to the protest as part of her protest as a mother, or she may accompany older children to a protest out of a wish to supervise and protect them, or she may not have any safe place to leave her children in order to attend a protest. But other concerns also apply which require some understanding of the nature of mothering and babies.
42. The human species is unique in the high degree of dependence of its young at birth and the long period, longer than any other mammal, of this dependence. According to evolutionary theory the human race owes its unique capacities of language, reasoning and social collaboration to the large size of their brains, which in turn requires a large skull. The reason for the extreme pain,tearing, bleeding and other suffering mothers endure in childbirth, more than any other mammal in existence, is the large size of the human baby’s head. The birth canal has to dilate to 10 times its normal width, that is 1000 percent of its usual size, within a matter of hours in order for a live baby to be born. This is why the pain of labour is excruciating.
43. Evolutionary biology tells us that a full-term baby’s head in the womb cannot get any bigger than it already it does without endangering the mother’s life in childbirth. But large as it is, a newborn baby’s brain and head need to grow much more after birth before the child can acquire basic control of its faculties or basic comprehension the world around.
44. Nature has compensated for the relatively underdeveloped state of the human newborn by giving us various physical capabilities that four-legged mammals do not have to hold and feed our helpless and almost inert newborn babies. These are the erect bearing, free arms and opposable thumb of the human adult that allow the baby to be held outside of the womb. This in effect allows a form of ex-utero gestation of several months for human offspring after birth. This is required as it takes a several months after birth for a baby to acquire even basic control of its body and make minimal movements, which in other mammals happens within hours or days of birth.
45. So being held and carried is not merely an indulgence but the first and most basic support a baby needs to survive. The other faculty given to human mothers is the ability to feed babies over several months, even years, with their milk. In being held and fed, therefore, the proximity and ease of access of the mother and baby are essential in the first months after birth.
46. Being so small and with limited control over its digestive system, the initial months of a baby’s life consist almost entirely of continually repeated cyclesof feeding, eliminating waste and sleeping.This is why a baby requires constant attendance with gaps of as little as 45 minutes between feeds in the first weeks, stretching to not more than four hours in the first 6 to 9 months. During this period it is not a casual matter or minimal infringement to require a mother to be separated from her infant, even for a few hours.
47. Moreover, this state of continuous dependence is not of short duration but extends for several months. Even an older baby or toddler cannot be left unsupervised, even for a few moments.Someone would have to substitute for the mother,even for a few minutes or hours of separation from the infant. But this may simply not be within the range of possibilities that a mother has. 48. The law is already cognizant of these issues. This is the reason why six months is the minimum prescribed period for maternity leave the world over. Six months is also the recommended minimum period for breast-feeding, which again requires physical proximity and ease of access between mother and baby. This need of physical proximity and ease of access between mother and child also lies behind laws for creches in the workplace.
48. A large part of a newborn’s existence is crying and being comforted, and it is a universally observed fact that most of the time newborns will refuse to settle in anyone’s arms other than their mothers’. How much a mother ends up holding and rocking her newborn baby in its precious early months is a combined outcome of her and the baby’s personality, the amount of time and resources at her disposal to be in attendance upon the baby and her judgment of what her baby needs. Some mothers carry theirbabies everywhere, some are able to train them to settle into their cradles themselves or with other care givers,and other mothersestablish a mixture of these two practices. Siblings maybe quite different in how independent they are as babies. Itis submitted that this bring us to another zone of mother-baby interaction where they are entitled to be “let alone”.
49. Keeping all this mind, in order to provide an enabling environment for mothers and babies, the law must look upon the mother and her baby as a composite physical unitrequiring if not continuous togetherness, then ease of access and proximity to a degree that it is the prerogative of the mother to arrange, including by carrying her baby with her to any place.
50. Given the extreme and practically round-the-clock dependence of infants on their mothers, a ban on bringing infants to protests would directly impinge on the ability of mothers to participate in them. Understanding them as a composite physical unit would also make any consideration of a ban on where a mother may carry her baby a question of the right to bodily integrity as elaborated by this Hon’ble Court in Suchita Srivastava and affirmed in KS Puttaswamy (para 79).
51. Placing restraints on where a mother may go with her baby would have the direct effect of discouraging her from leaving the home and indeed driving her back into the home. It is submitted that this would fly in the face of years of painstakingly developed women’s rights jurisprudence by the Hon’ble Court to enhance and facilitate the ability of women to participate in life beyond the home and family.

Autonomy of pregnant women

53. Before prescribing regulations that would enforce a separation of mother and infant for any reason, it must also be borne in mind that this puts us on a slippery slope to also prescribing restraints around pregnant mothers. This would go completely against the grain of our jurisprudence on the reproductive rights of women as developed by this Hon’ble Court in Suchita Srivastava and the cases following where the constant endeavor has been to respect the autonomy and privacy of the woman bearing the child.

Chilling effect

54. Asking parents to leave their children behind when protesting begs the question of with whom they are to be left.Even mothers who can afford paid childcare often prefer to have them under their own eye or that of close female relatives, typically the child’s grandmothers. Most Indian working mothers will point to their mothers and mothers-in-law as the support structure that enabled them to continue working after having children. So the degree of freedom allowed in general to move around with infants and children has a direct impact not only on the mother but on other womenfolk of her circle as well.
55. The vast majority of women in India cannot afford paid childcare. Mothers in jhuggi clusters often do not even have relatives on hand to help them with childcare.They rely on the other womenfolk of their community to help in watching over their children.
56. So a ban on bringing infants and children to demonstrations would inhibit not just the mothers but all the women in poor and working neighbourhoodsfrom attending such demonstrations.
57. In this way debarring children and infants from demonstrations and agitations would have a chilling effect on the ability of women to participate in them. It is submitted that this is a fit case for consideration of the chilling effect doctrinewhich was alluded to by this Hon’ble Court in the case of KS Puttaswamy (para 128) and left open as a question of law for consideration in an appropriate case by this Hon’ble Court in the case of Anuradha Bhasin v Union of India 2020 SCC Online SC 25 (para 146 onwards).
58. The chilling effect on mothers and women would operate as an unconstitutional psychological restraint on their freedom of movement in the manner explained by Justice Subba Rao in his dissenting opinion in Kharak Singh v Stateof Uttar Pradesh 1963 AIR 1295/1964 SCR (1) 332which was quoted with approval by this Hon’ble Court in KS Puttaswamy. Kharak Singh concerned a case of surveillance as a psychological restraint on the freedom of movement.The principle enunciated by Justice Subba Rao was as follows: “freedom of movement under Article 19(1) (d) and the right to personal liberty under Article 21 are overlapping rights. The right to move freely is an attribute of personal libertyand the right to personal liberty takesin not only a right to be free from restriction on movements but also free from encroachments on private life. Privacy is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; for rest, peace of mind and security. If physical restraints on a person’s movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed nothing is more deleterious to a person’s physical happiness and health than a calculated interference with his privacy. We would therefore define theright to personal liberty in Article 21 as a right of an individual to be free from restrictions and encroachments on his person whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures…. as acivilisation advances psychological restraints are more effective than physical ones.” These cogently described inhibiting effects would apply on all fours to mothers if a ban on their taking infants and children to protests were to be imposed.
59. It is submitted that given the direct negative impact on the ability of mothers and women in general to participate in protests if children and infants are banned from them, such a ban would also result in unfair discrimination against mothers and women contrary to Article 14 of the Constitution.

Mother-in-protest as a symbol of strength

60. The Hon’ble Court may also consider the benefit to the cause of women’s empowerment for the children of humble backgrounds to see their mothers, aunts and grandmothers in a new assertive public role as participants in demonstrations and sit-ins. There is a tendency to see motherhood, and by extension, women, as weak and needing to be closeted. Nothing challenges this perception so emphatically as a protest lead by mothers. Mothers-in-protest show the mother as a figure of strength and a protective, inspirational and effective force in public life.

Safety of children at demonstrationsand agitations

61. The rights to protest, movement and privacy cannot be viewed in isolation. Alongside these rights and of no less importance are the rightsof children to life and protection from neglect, abuse and exploitation under which may arise the question of the health and safety of children and infants at demonstrations and agitations. The instant matter was triggered by newspaper reports of a death of a four-month-old baby who had been taken to protests currently on-going at Shaheen Bagh in New Delhi and whose mother is reported to have said that he passed away as a result of catching cold there.
62. This is a tragedy.As a society we bear responsibility for keeping children safe and well.But in our zeal to protect children, we must not stifle them or force them into a sterile or isolating environment. As adults we owe it to children to respond to their needs with maturity and balance, taking a wholistic view of all their needs.
63. Such a balancing is well known to the Hon’ble Court which has time and again held that rights are to be interpreted harmoniously so that no one right is extinguished in the preservation or expression of any other right. (See, for instance,BinoyVismanat paragraph 62 (46) and Anuradha Bhasin v Union of India at paragraphs 1, 2 and 55.) This Hon’ble Court has also held that rights cannot be frustrated or throttled in the name of reasonable restrictions (Ramlila Maidan Incident2012 (5) SCC 1/AIR2012 SC 3660, paragraphs 195, 200, 211).
64. When considering the constitutionality of a ban on children and infants at demonstrations and agitations, the right of children to safety and protection from neglect and abuse has to be balanced with their and their mothers rights to protest, peaceful assembly, freedom of movement, privacy and dignity as described in the preceding sections. Such rights are to be interpreted harmoniously so that no one right is extinguished in the preservation or expression of any other right.Any restriction on rights would have be reasonable, proportionate and bear a proximate and direct nexus to the achievement of their safety and protection. Since privacy, dignity and freedom of movement are contained within the right to life, we are in this case looking not merely at balancing competing rights but balancing aspects of the same right. (On proportionality and nexus see Anuradha Bhasin paragraphs 33, 34, 47, 48, 50, 53, 54, 70; K. S. Puttaswamy, paragraph 180, Conclusion paragraph 3H)
65. S. Rangarajan v Jagjivan Ram (1989) 2 SCC 574 quoted with approval in Ramlila Maidan Incident 2012 (5) SCC 1/AIR2012 SC 3660has an illuminating discussion on the nature of the balancing of rights under Article 19. In that case the Hon’ble Court was engaging in the balancing of rights under Article 19(2) for security and other special interests against the right to freedom of speech. The Hon’ble Court opined that the balancing cannot be as if the two interests are of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the situation created by allowing the freedom is pressing and the community intertest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression and the expression of thought should be intrinsically dangerous to the public interest.
66. In the Ramlila Maidan Incident case this Hon’ble Court said that any restrictive measures would also take into consideration whether the anticipated event would be intrinsically dangerous to public interest.
67. It is submitted that a ban on the involvement of infants or children at demonstrations on the ground that they might fall ill would fail the test of proximity as laid down in S. Rangarajan and affirmed in Ramlila Maidan Incident. It cannot be said that being taken out in the open or being in crowds is inherently risky for the health of children and babies. 72. In India most babies are raised in crowded one-room homes and many homes are little more than slum dwellings held up by a makeshift arrangement of sticks, cloth and plastic. In the cities and towns many babies are born and raised on the street and at open construction sites.
68. Indian babies of any background are no strangers to crowds and gatherings.Babies are taken to weddings and melas. In North India these gatherings are typically held in the winter at night and under open skies or shamianas. In terms of exposure to people or the weather there is no difference between a baby attending a protest or a wedding under a tent in its mother’s arms for a few hours.
69. For a mother raising a baby in a congested slum in a jhuggi with plastic covering in the cold winter of December, it cannot be said that taking a child to a crowded demonstration under a tent with medical facilities at hand, as at Shaheen Bagh, is either neglectful or abusive or “torture”.
70. There is no law or rule requiring the isolation of newborns or barring them from being in the company of people. It is common for infants to get runny noses and congestion and it cannot be said that bringing a baby outdoors if it is warmly clad even if it has a cold is neglect, abuse or torture. Catching cold in any case not a concern for most of the year in the plains of India, and even less so further south, where there is no cold winter season.
71. Concern for the health of children and babies has to be balanced with their right to the care and company of their mothers, their mother’s right to attend demonstrations, the rights of minors to protest and their rights to privacy and freedom of movement. It is submitted that the balancing can be done by ensuring that protests are carried out in an orderly and peaceful manner that does not pose a danger to public health. This would be in keeping with the principles enunciated in Ramlila Maidan Incident where this Hon’ble Court opined that the state is duty bound to ensure exercise of freedom of speech and assembly and ensure protection and security of members of the assembly. The duty of the state is to aid people in the exercise of free speech, not throttle or frustrate the state by taking action in the name of reasonable restrictions.
72. It is submitted that concerns about safety at demonstrations are already addressed in the regulations issued by competent authorities from time to time on the conduct of procession and rallies which provide for adequate supplies of water, sufficient number of volunteers to facilitate the orderly entry and exit of protesters and, above all, maintenance of peace.
73. In New Delhi, these matters are covered by Standing Orders issued by the police from time to time. These orders were analysed and directions for improving them issued by this Hon’ble Court in the landmark caseof the Ramlila Maidan Incident. This judgment placed the onus squarely on the police and state machinery for ensuring the safety and protection of protesters at a demonstration (paragraphs 22, 23, 28, 29), going to the extent of holding that even in dispersing an assembly the onus is on the police to ensure a peaceful and orderly dispersal.
74. In Ramlila Maidan Incident this Hon’ble Court ruled that the state has to give utmost regard to the right to freedom of speech and expression which a citizen or group of citizens may assert. The State also has a duty to provide security and protection to persons who wish to attend an assembly. The Hon’ble Court dismissed the state’s attempt to justify on the basis of a claimed “threat perception” the use of excessive means to disperse a peaceful, sleeping crowd in the dead of night. The Hon’ble Court opined that the state ought rather to have been guided by the concept of “care perception” in ensuring that people were not panicked and were dispersed peacefully (paragraph 13 of Findings and Directions).
75. The Ramlila Maidan Incident case is particularly significant for the present case as it discussed both lawful assemblies for which police permission had been granted as well as assemblies that were unlawful or for which permission was withdrawn (paragraphs 127 and 128). According to this Hon’ble Court in the Ramlila Maidan Incident case, the duty of the police and the state to ensure safety, security and orderliness is the same for both lawful and unlawful assemblies. In this way the Hon’ble Court in Ramlila Maidan Incident took a wise and practical view of the nature of protest gatherings. The fact is that permissions for such assemblies are often denied or withdrawn owing to reasons not connected with maintaining peace and good order, but to discourage dissent. The decision in Ramlila Maidan Incident requires the police and state machinery to act in either case with a view to maintaining safety, peace and good order to the maximum possible extent (paragraphs 143, 145, 147).
76. In this respect it may be noted that the presence of children at demonstrations and agitations acts as a reminder to the protesters and police alike of the importance ofmaintaining peace and order.
77. Another issue arises from treating as one children of all ages from newborns to 18-year-olds when banning them from demonstrations and agitations. Given the highly differentiated capabilities of newborns, breastfed infants, weaned infants, older babies, toddlers, young children, pre-adolescents, young teenagers and older teenagers, treating them as one falls foul of the rule against treating unequals and equals under Article 14 of the Constitution.
78. It is submitted that treating teenagers as no different from newborns, toddlers and small children is also a violation of their dignity and personhood.
79. An important principle developed in the Ramlila Maidan Incident case (paragraph 22, 23, 28, 29) relevant to the question of banning infants and children from demonstrations for health reasons is the “principle of least invasiveness”developed in that case whereunder any restriction on the freedom of assembly and free speech should be imposed only in a manner and to the extent which is un-avoidable in a given situation.
80. This principle was further elaborated in the case of Anuradha Bhasin where this Hon’ble Court ruled that the restriction has to be the least restrictive in order to achieve the stated goal (paragraph 70, 71,76): “In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. ..such goal must be legitimate.. However, before settling on the aforesaid measure the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal….only the least restrictive measure can be resorted to by the State taking into consideration the facts and circumstances… the degree of restriction and the scope of the same…must stand in relation to what is actually necessary to combat an emergent situation… The Government is required to consider various options under Article 19(2) of the Constitution so that the brunt of exigencies is decimated in a manner which burdens the freedom of speech in aminimalist manner.”
81. It would be excessive and contrary to this principle of least invasiveness for children and infants to be completely barred from demonstrations for health risks that can easily be addressed by ensuring reasonably safe and hygienic conditions at such events which are already provided for under the regulations governing public assemblies.
82. It is submitted that it would be unprecedented in Constitutional jurisprudence for this Hon’ble Court to intervene to place restrictions on the exercise of fundamental rights. Typically this Hon’ble Court has acted as the enabler and facilitator of the rights-seeker either by laying down rules that would enable the exercise of such rights to the fullest reasonable extent or by striking down unreasonable restrictions imposed by the legislature or executive on the exercise of such rights. An approach that places the duty of care on the state to provide for the safety and comfort of infants and children at demonstrations rather than banning them out of such concerns would also be in keeping with the general jurisprudence of this Hon’ble Court of prescribing an expansive reading of the fundamental rights (paragraph 20, concurring judgment of Abhay Manohar Sapre, J. in KS Puttaswamy).
83. Since the laws and regulations already provide for maintenance of public safety and order at demonstrations and agitations and institutionsto formulate and implement such regulations already exist such as the police, the national and state child rights commissions, district level child welfare committees and district child protection units, it is submitted that directions from the Hon’ble Court in this regard are not required. It would suffice to remind these institutions to play a supportive and enabling role in facilitating the safe presence of infants and children brought by their elders to demonstrations and agitations.

Police action is not warranted in the case of the bereaved mother of Mohammad Jahan

84. It is submitted that since it is not reasonable to aver that children or infants face an inherent risk to their health and life in being taken to demonstrations and agitations, even if the weather is cold, there is no act of neglect , abuse, torture or exploitation in any mother taking her infant to a protest or demonstration. Therefore, as a general principle it is wholly unwarranted and indeed an act of extreme cruelty to initiate a police inquiry against a parent for neglect or abuse simply for taking theirbaby to a protest. Such a brutal and heavy-handed move would offend against the rights of the baby and parents under Articles 19 and 21 of the Constitution.
85. In the particular case of the mother of Mohammad Jahan, the media has sensationalized her alleged statements making it sound as though she deliberately put the baby in harm’s way by taking him as a sacrifice to the Shaheen Bagh protests. It is submitted that, even assuming without admitting that the mother made such or similar statements, that they have to be understood with sympathy. It is entirely understandable for a mother shaken to the core and struggling to come to term with the sudden loss of a baby to try and give meaning to it by speaking of it in terms having occurred in a worthwhile cause or even by asserting her determination despite the loss to continue going to the protests with her older remaining children. This is a very human reaction. It may be understood in psychological terms as one of the popularly knownso-called“stages of grief”: denial, anger, bargaining, depression and, ultimately, acceptance.
86. This unfortunate mother’s words can be seen as part of the initial phases of anger and bargaining in grief. She is clearly a fellow human in pain.We all struggle to make sense of death. For amother of a newborn,this struggle is all the more overwhelming. It would be a profound injusticeto compound this poor woman’s grief by taking police action against her. If anything, intervention should be limited to counselling and support for her andher family.
87. It is submitted that as a general principle police action initiated by third parties based on words uttered in grief by a mother on the untimely and unexpected death of a child would be an invasion of her rights of privacy and dignity. In the highly politicized environment attending the protests, she may even have been led by ill-intentioned persons to use words that would lend themselves to misinterpretation.
88. It is submitted thatwhether her statements were induced or the product of an anguished mind, they should not, in the spirit of the right against self-incrimination, which prohibits the use of involuntary statements, be used against her. This right is enshrined not only in Article 20(3) of the Constitution, buthas also been held by this Hon’ble Court in the case of Selvi (at paragraph 192) to be a component of the right to personal liberty under Article 21.

PRAYER

It is therefore most respectfully prayed that this Hon’ble Court may be graciously pleased to:

• Allow the present application and permit the Applicant to intervene and address this Hon’ble Court in Writ Petition SMW (Crl) No. 1/2020 PIL-W; and
• Refuse to impose any ban on the involvement of children and infants at demonstrations and protests;
• Refuse to initiate police investigation or other criminal or accusatory action against the bereaved mother of Mohammad Jahan.
• Pass such other and further orders as this Hon’ble Court may deem fit and proper

AND FOR THIS ACT OF KINDNESS THE PETITIONER SHALL, AS IN DUTY BOUND, EVER PRAY.