I fondly remember a conversation between a four-year-old girl and her father on her first train journey in 2018. The moment the train left the station, the child was jubilant and jumped to tell her father, ‘Daddy, the train station is moving away from us.’ After a brief conversation, the father convinced his daughter that it was not the train station that was moving; instead, the train was leaving the station.

Another incident that intrigued me during my primary research on children was in the refugee pockets in Jammu. Families had fled from countries like xxxx, many children were born in refugee camps. Until reality hit the child, he believed that his refugee country was his place of residence and identity. This belief was shattered when these children were confronted with the reality that they were merely refugees who did not belong to their land of birth. Instead, they are looked at as citizens of a country from where their parents were forced to flee due to the fear of persecution, and they are now, technically stateless to say the least.

Both incidents reflect the innocent perception of a child’s own life and their confrontation with reality. For the girl on board the train, her exposition to the fact is an empowering choice of knowledge. At the same time, in the latter case, it is a political vindication of identity subsumed in the unqualified denial of access of the most fundamental guarantees by either or both, the host or the country of refugee – citizenship, statehood, identity and access to the most fundamental entitlement which will eventually empower the child: health and education.

The former three concerns are fenced around the political contours of the State’s recognition, majoritarian will and populism, while the latter (health and education) establish the first foundational relationship between the State and the child as an empowering right to grow up as an adult.

The Question ?

Should primary health and education be marred by the earlier three paradigms of citizenship, Statehood and identity or, this should remain independent as a non-derogable entitlement in the best interest of the child and thus calling upon the receiving states to provide these most basic entitlements as a right, irrespective of the citizenship of the child.

One argument espoused is that the receiving State is under no obligation to provide anything. There are international agencies like the UNHCR and other non-profits organizations to address these issues. Second, the people who have sought temporary refugee will eventually return to their own country. Thirdly, the apprehension that if the State extends national initiatives like primary education and health, they may settle within the comfort of their new country, putting an additional burden upon the receiving State. Fourth, and most rhetorically proclaimed, their permanent presence poses a security risk, and therefore they must be eventually deported. Nationalism is a resounding discourse. Finally, the receiving State has not signed the refugee convention (case basis) and thus is under no obligation.

Another side of the coin is the receiving State’s obligation under the UN Convention on the Rights of the Child and its responsibility in a globalized world to protect, respect and fulfil the customary guarantees of primary health and education, irrespective of Statehood or citizenship

The best’ interest principle’ in the UN-CRC fuses the law’s protection and empowering spirit under one umbrella. Protection as a negative obligation dovetails a guardianship network against arbitrary State action through parents, village elders, autonomous and State institutions, etc. Empowerment remains fluid and risks undermining the non-derogable nature of the Convention since it seamlessly yet dangerously seeps within the larger paradigm of Economic Social and Cultural Rights (ESC) as a positive obligation limited to the availability of maximum available resources. The absence/lack of the binding nature of ESC rights (e.g. health and education) fails the child in its entirety when the Convention does not create capacity to ensure the child’s transition to adulthood, enjoy the availability of choices and the freedom to choose. Second, it risks creating an unhealthy and uneducated population.

Primary data analysis of the refugee children in Jammu shows 886 school dropouts out of the total of 2073 children are engaged in child labour. Amongst the school-going children, 59% of the children are going to linguistic or refugee run community schools. After calculating the school dropouts in various classes, only 25 children out of 2073 will fulfil the minimum criteria to apply for jobs in the future.

In terms of health, no birth registration is carried out. Instead, an affidavit is prepared by the families to confirm the birth. The immunization rate is extremely low since they are not covered under the universal immunization scheme. India’s immunization rate is more than 82% in all vaccination programs. In contrast, for the documented refugee population, the rate is abysmally low to a maximum of 60% in the case of OPV (oral polio vaccine) to a low of 1.5% for measles-rubella (MR) vaccination.

State reluctance to extend minimum human rights guarantees to the population citing the oft-quoted risk of granting permanency to an otherwise refugee population is likely to have a disparate impact on children in future. Rampant child labour and exploitation is prevalent with negligible access to state-sponsored health and education. With more than 50% of the present population being children and 20% within the above 50% being born in India will also raise questions on their citizenship in future.

History is replete with examples that refugees have rarely returned to their native country. They have seldom mainstreamed with the country of refugee and instead, such refugee camps have mushroomed as ghettos with people living in abject poverty. In the absence of any State intervention, they are an undocumented population vulnerable to exploitation.

This is a question of trade-off: recognizing children’s basic entitlement to health and education opens up a pandora box of state obligations to non-citizens best explained by the famous phrase: ‘Rob Peter to pay Paul’.’ On the other hand, denial of these basic rights to children does not auger well for the receiving State too. Over the years, many of these young children as adults could be termed anti-national/anti-social elements without the slightest recognition that it was the absence of minimum public education guarantees that these children were left with no choice. Similarly, the unhealthy population will even work unworthy and unskilled. Very few will therefore be able to deflect from the vicious cycle of poverty and unemployment in the absence of State intervention. The rest of the population will fringe to the essentially de facto segregated spaces, which will become ghettos.