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IV.  Protection of Orphans and Other Vulnerable Children

It’s becoming visible.  It’s just a matter of time until we see more people coming into the open and saying, “I have HIV and some of my children are positive.”  We want to see that these people are protected, that their children don’t end up in child labor, that they get protection.  They are vulnerable to abuses.

—Doctor, Chennai, Tamil Nadu, November 11, 2003

The great majority of the Indians living with HIV/AIDS are between the ages of fifteen and forty-nine—the time at which many are also raising children.  While HIV/AIDS, exacerbated by discrimination against people living with the disease, is leaving increasing numbers of children in need of state protection and care, the state is failing in that responsibility.  Children whom the state fails to protect may be denied an education, pushed onto the street or into the worst forms of child labor, or otherwise exploited.

HIV/AIDS has a devastating effect on families.  As parents become increasingly sick, the family loses their wages and household labor.  This loss, combined with increased health and funeral expenses, leaves parents less able to pay for children’s school fees, medical expenses, food, and other basic necessities.344  While the extended family has traditionally absorbed many orphans and other children whose parents are unable to care for them, misinformation about how HIV is transmitted and fear of discrimination by the community causes some families to reject children who are HIV-positive or who are perceived to be because their parents died of AIDS.  Some HIV-positive parents also give up their children to others in the mistaken belief that they will infect their children through casual contact.  When extended families do take in children whose parents cannot care for them, they may still need state protection.  Human Rights Watch found children who appeared to be well cared for by their relatives and others such as Lalita R. (whose story is described below), who were not. 

Girls are especially at risk, as an NGO community worker explained:  “Generally, girls are more vulnerable, especially if they are orphaned.  They are likely to be married off at a much younger age or abused by extended family members.  There are big gender differences, and girls are seen as commodities.”345  When married young, girls often have less power in the household, are less able to negotiate condom use, and, if their age difference with their husband is significant, may be at greater risk of domestic violence.

As the epidemic spreads, more children are orphaned, and more caregivers themselves become ill, the extended family’s and the community’s ability to care for more children is imperiled.346  Grandparents taking in children, for example, may themselves be in need of physical care and financial support.  We interviewed a truck driver in rural Maharashtra who was living with his mother and his two teenage nephews and who had already lost six immediate family members to AIDS:  his father, his sister and her husband, and his brother and both of his wives.  In addition, the man’s mother—the boys’ grandmother—was HIV-positive and ill, as was their aunt, the man’s wife.  The boys had dropped out of school to work.347 

With no one to care for them, older children may be left running the household and caring for younger siblings.  Human Rights Watch collected little information on child-headed households, although some NGO staff suggested that the phenomenon may grow in the future:

We’re finding more and more child-headed households emerging.  In Andhra Pradesh, some of the children we sponsor have become orphaned and are heading households.  We haven’t seen this as much in Chennai, but it is slowly emerging. . . .  Some orphans we placed in hostels—left alone in the community they would be child heads.”348

Even if India were to slow or arrest the spread of HIV, the Indian government would still need to plan for the care of the growing number of AIDS orphans for many years to come.  According a joint study by UNAIDS, UNICEF, and USAID: 

In general it takes about ten years between HIV infection and death from AIDS.  So today’s prevalence rates will largely determine the pattern of orphaning for the next decade.  Because of the 10-year lag between infection and death, even in a country where HIV prevalence has declined, the numbers of orphans will continue to remain high.349

Children in Need of Care:  Testimonies of Children and Parents

The following testimonies illustrate some of the ways that AIDS-affected children come to need state care and protection, and how discrimination, misinformation about HIV, school fees, and the state’s failure to provide basic medical care for AIDS patients exacerbates that need.  It should be noted that, unlike the families interviewed for this report, many do not have the option of the NGO facilities mentioned here.

Lalita R.

After her mother died of AIDS in late 2002, twelve-year-old Lalita R. was left living in a one-room mud house with her eight-year-old HIV-positive brother, her invalid grandmother, and her alcoholic uncle.  Immediately, her grandmother pulled Lalita out of school to care for the rest of the family.  Lalita told us: 

I left school because my mother died.  I studied up to sixth grade.  But now my grandmother doesn’t allow me to come out of the house. . . .  I really wish to go to school, but my grandmother doesn’t allow it. . . .  I liked school and I want to go back.  I would be happy to go to school, but most of the time I am at home.  I feel unhappy.  I don’t want to spend more time at home.  Here I don’t play with anyone.350 

Her grandmother confirmed: 

For the last four years I haven’t been able to work.  My son works but he is a drunkard, and . . . [e]very day my granddaughter prepares food for her uncle as well. . . .  I told her not to go to school because who will do this work?  It is only because of myself that I don’t want to send her to school because no one is here to work and who will do these things?351

Wearing a thin yellow dress and looking angrily at her grandmother, who was just out of earshot, Lalita described what a typical day is now like for her:  “I wake up at 6:00 in the morning, then I go to the toilet, then I put the pot on to heat water,” she said, showing us a large, heavy pot.  “Then I make flat bread.  Then I make sambar.  Then I wash the utensils and sweep the floor.  I wash the clothes outside of the house.  I fetch water from another place nearby, from the well. . . .  During the day I go to the field, I carry water, I collect things to burn in the fire, I grind the meal.”352

A neighbor also described Lalita’s situation: 

She doesn’t have time to play at all during the day—she is always fetching water, sweeping the floor, making flour.  She doesn’t have time to watch T.V.  How can she manage?  I live near here and my husband is a retired teacher.  I see the girl during the day and see that she is working all the time.  I feel so sorry but what to do now?  The woman’s son who lives with her is a drunkard, and he doesn’t take care of her.353

In contrast, Lalita’s brother told us that he spent the day studying and playing.  On a typical day, he said:

I get up and wash my face.  I take tea.  Then I take a bath, then I put on clothes, then I sit down for studying, then I go to school up to 5:00.  When I come back, I bathe, then study.  After that I go to a friend’s house, and I sometimes even eat there.  Then I come home and have dinner, and then I go to sleep.354 

When asked if he ever fetched water or wood, he replied:  “No, I don’t do any work.  I just take care of my dog—he is my pet and I play with him.  My grandmother never tells me to work. . . .  Didi—my sister—she does everything for me. . . .  I bathe in hot water if my sister heats the water for me.”

Other Children’s Testimonies

The stories of Anita T., R. Selvam, Prabharam K., and Jaya V. illustrate ways that stigma, misinformation about HIV, and fear of discrimination from a misinformed community cause extended families to reject HIV/AIDS-affected children, resulting in their needing state care and protection. 

Anita T., living with HIV/AIDS, put three of her children in residential schools after her husband died of AIDS in 1999.355  “After my family came to know about my husband,” she explained, “they had my children tested and then pushed them away.  In the same house they kept everything separate—plate, tumbler, mat.”  Her parents advised her to put her two-year-old in an NGO-run orphanage, she said.  “I put him there because I was sick, and he was always getting sick, and I couldn’t take care of him. . . .  They say he is going to school there, but I haven’t seen him and I don’t know.”  Her two eldest sons, ages fourteen and seventeen, also ended up in institutions.  Anita and one daughter and one son, ages eleven and eight and both HIV-positive, were living in an NGO-run home when we interviewed her.

R. Selvam, eleven years old, told us that he and his eight-year-old brother had been living in a government-funded care home for two years when we interviewed him.356  His parents were both living with HIV/AIDS, and, according to the care home’s director, the mother decided she could not care for both her husband and her children.357  “The extended family didn’t want to take the boys because they are infected,” he said.

When we met him, Prabaharam K., age four,was at risk of being separated from his HIV-positive mother on the mistaken belief of institution staff that he could be infected from casual contact.  A counselor at the government-funded home where they were living told us:  “His mother is positive and she is here, but he is negative and next year, when he is five, we are sending him to a hostel.  The family gets a separate room now.  I am afraid he will catch HIV, so we will send him out.”358

Jaya V.’s mothertold us:

When my husband was very sick, my family members started rejecting us.  I have three children, and we were all living together, but once my husband died, my mother took my oldest son, my brother took my second child, but nobody wanted the youngest, who was positive.  I had to live in a hut alone with [Jaya].359

She saw her two oldest children once a month, she told us:  

I go to my mother’s and my brother’s houses.  I’m not allowed to stay overnight.  I go and leave in the evening.  I don’t use a plate there.  They get me leaves so that I don’t use their plates.  What can I say about it?  That’s why I hope for a cure.  I don’t want to blame them.  It’s the fear that keeps them from interacting with us.  They’re scared they could get it.360

Staff at the Council of People Living with HIV/AIDS in Kerala (CPK+) also reported that they worked with relatives who wanted to institutionalize HIV-positive orphans, trying to convince the relatives that they could safely care for the children without contracting HIV.361

Girls may face more difficulty finding care and protection due to entrenched social discrimination against women and girls.  For example, when Monisha S.’s husband died of AIDS in 2002, she said, she stayed in their village in rural Tamil Nadu with her five-year-old son and one-and-a-half-year-old daughter and worked in the fields.362  Her parents were dead and her sister refused to see her because she was HIV-positive, she told us.  As she began to get sick, her husband’s brother visited her and said, “I’m taking the boy because he might get infected.”  However, the man and his family refused to take her daughter.  “I am waiting for her test result to come,” Monisha explained.  “But positive or negative, they won’t take care of her.”  Staff at the care home where she was living told us that the family did not want to take her because she was a girl.363

Around mid-2003, Monisha became too sick to work and went to the government tuberculosis and AIDS hospital in Tamburam where a social worker secured her and her daughter a place in a government-run home.  Since she has been in the home, Monisha had not seen her son, she told us:  “I wish my son could be with me because I think they don’t treat him in the way that I would treat him. . . .  My relationship with my relatives is gone.  My son is gone.”364  Monisha told us she has no plan for her daughter’s care once she dies.

According to social workers for the NGO SANGRAM, in the villages in Maharashtra where they work, relatives are often especially reluctant to take care of girls orphaned by AIDS.365  Some suggested that a lack of options for girls’ care is pushing down the already low average age of marriage:  if they have no other alternative, HIV-positive parents may marry off their daughters before they die simply so the girls will have someone to care for them.  A community health worker in Chennai also explained:

We have a few cases where mothers want their daughters to be married off—very few cases because mostly the children [of parents with AIDS] are young. . . .  If the number of orphans increases, the age of marriage may come down.  For example, child-headed households, extended families, or mothers with children who are under the age of marriage, they are thinking that if I get my daughter married off before I die, she’ll be safe and I’ll get to see her married.

In Andhra Pradesh [where the organization also works], we saw a thirteen-year-old, and we said to the mother, “What are you doing?”  She said, “Can you promise me that you will get my child married because I will die any day now.”  These are the hard realities.  We can’t talk about the age of marriage.

Maximum around fifteen years is what we’re seeing. . . .  The moment the girl is after puberty then the pressure is starting.366

Guruswamy G., who had to drop out of school after her father died of AIDS because her mother could no longer afford transportation costs, told us she was facing marriage at sixteen.367  “She has to get married now,” her mother told us.  “Nothing other than that.”

Early marriage can make girls even more vulnerable to HIV transmission if causes them to drop out of school, prevents them from getting information about HIV, and leaves them less able than older or more well-educated women to negotiate condom use with their husbands.

Even when extended family members are willing to care for orphaned children, they may be unable, especially when they must confront discrimination, when schools charge fees, and when free health care is unavailable.  An NGO doctor caring for people living with HIV/AIDS explained:  “The ideal is for children to be taken care of in the extended family.  Unfortunately, most of our people come from such adverse circumstances—they are very poor. . . .  If we had economic assistance—most of the time it’s the problem of one more mouth to feed, and they have very little for themselves.”368

For example, after Sumathi M.’s husband died of AIDS in 2002, she sent her sixteen-year-old son to a “government-recognized hostel” run by a political leader, she told us.369  “He is in the hostel because we don’t have financial support, and I can’t bear the cost of educating him.  There he gets everything for free—education, clothes.”  Her son, who was home visiting, told us that “[t]he hostel doesn’t know that my father died of AIDS.  I never told them . . . so I haven’t had any problems.”  However, he said, “so many of my friends in the hostel have parents who died of AIDS.”

D. Kumar, age thirteen, had lost both of his parents to AIDS by age seven.370  He was not HIV-positive, and after his parents died, he went to live with his aunt, who enrolled him in a local school.  But then his uncle “got sick and stopped earning money.”  Kumar’s aunt asked the local priest to send him to a church-run hostel (boarding school), which was a long bus journey from their home.  “I didn’t like the hostel,” Kumar told us.  “I like living in a house with my aunt and her children. . . .  There were no games at the hostel.  I like privacy.”  Kumar stopped eating, believing that he would die like his parents.  When a local NGO learned of his situation, they arranged for him to return to his aunt’s house by providing 300 rupees (U.S.$6.25) a month to cover his food, agreeing to cover his medical expenses, and supplying a bicycle for him to get to the local school, which was some six kilometers away.  Kumar told us, “I think when children don’t have their parents, they should stay in their aunt’s or their family’s house.”

Association François-Xavier Bagnoud (FXB), which works with children in India, has noted that while many orphans in India are cared for by their grandparents, “young orphaned children fostered by elderly relatives may well find themselves in a situation of ‘second phase orphaning’, with their foster guardians dying during the orphans’ childhood, as well as the parents.”371  For example, the grandfather of seven-year-old Punima J. told us:  “We live with my wife who is sixty-five.  I am seventy-four.  I have two acres of land and work on it.  The land will go to [my other children].  After that, I don’t know what will happen to the child when I die.”372

A seventy-year-old man whose children had died of AIDS and who was caring for his eleven-year-old granddaughter suddenly wept when we were speaking with him.  “Who will take care of this child?” he asked.  “Will you take care of her?  What will happen when I die?”373  “I want to take care of my grandparents when I grow up,” his granddaughter told us.  “I want to be a doctor.”

The grandmother of Selvi J. and her brother, orphaned by AIDS, told us she had to send the boy to a government institution.374  “I am alone and I couldn’t take care of them both,” she explained.  She had little family support to care for twelve-year-old Selvi, who was HIV-positive: 

The saddest situation is that my relatives neglect the child.  They won’t come inside the house—they stand outside to talk with me and then leave.  They won’t allow their children to play with this child.  Her uncle, my other son, does this.  He gives no support for this child.  No one will help me.  I run this family by renting these rooms in my house.

However, she told us, she was afraid to tell her boarders that the girl is HIV-positive.

Even when extended families do take orphaned children, the children may still be in need of state protection if the families do not provide adequate care.  Meena Seshu explained:

On discrimination in families, there’s a huge myth, not that they won’t get cared for—they will—the myth is the quality of care.  Someone will take them, but most already have their own children.  We need to recognize that the idea of extended families taking care of kids is romantic but untrue.  Because people are getting poorer and poorer. . . . The issue is not whether people will take orphaned children but what quality of care they will give.375

A doctor for an organization that treats people living with HIV/AIDS reported that some of the children in his care “are definitely not receiving the same care as parents would give. . .  They are second—for education, for food.”376

The situation of Lalita R., described above, whose grandmother pulled her out of school to work, and the experiences of children described in the section on child labor illustrate some of the ways in which children cared for by extended families may still need state protection to ensure that they receive education and are not pushed into the worst forms of child labor.

Other Vulnerable Children

Street children, sex workers, and other marginalized groups face additional forms of discrimination.  They may also be at greater risk of HIV transmission, the official response to which may be colored by moral judgments about their behavior.  Although disproportionately affected by the disease, they are typically less able to get health, education, and HIV-related services.  As the Committee on the Rights of the Child has noted, children affected by HIV/AIDS may be pushed into sex work or other hazardous forms of labor “for money to survive, support sick or dying parents, or to pay for school fees,” thus leaving them vulnerable to discrimination both for the work they are engaged in and for their or their parent’s HIV status.377  India must take more aggressive steps to prevent HIV/AIDS-affected children from getting pushed out of school and into the worst forms of child labor or onto the street, to protect vulnerable children from HIV, and to make sure that vulnerable children get the care and treatment they need.

Street Children

By its own estimation, India is believed to have the largest population of street children of any country in the world,378  and researchers predict that as HIV/AIDS takes the lives of more parents, the numbers will continue to rise.379  Organizations that work with street children such as Association François-Xavier Bagnoud (FXB) and Naz Foundation (India) Trust have noted that both girls and boys orphaned by AIDS are more likely to become street children and, once on the street, are at high risk of contracting HIV through consensual and non-consensual sexual contact including sex work, through injection drug use, through a lack of information about sexually transmitted infections including HIV, and through a lack of access to health care.380

Government officials told Human Rights Watch that they were aware of street children’s vulnerability to HIV infection.  For example, the director of Tamil Nadu’s Department of Social Defense stated that:  “We didn’t realize this [street children’s vulnerability to HIV infection] was a major problem until about one year ago.  Now we see behavior patterns among street children, reckless sexual behavior as a problem.”381  But this assessment, which emphasizes street children’s “bad behavior,” has not translated into programs to provide information or services.  As described in the section on educating children about HIV/AIDS, government officials told Human Rights Watch that programs to educate street children about HIV/AIDS were non-existent or just beginning, although individual NGOs had introduced programs in some projects.382  And staff of the Lawyers Collective HIV/AIDS Unit explained:  “Children and youth living on the street also face discrimination in public hospitals.  Public hospitals refuse to treat them.  They can’t walk into the hospital and access health services.  Even in an emergency situation, they are dependent on Childline—1098, a helpline for children in distress run by NGOs and supported by the government—and other NGOs to access health services in public hospitals.”383

Child Sex Workers

The death of parents or husbands may push girls and women into sex work, especially if they have not been educated and thus lack skills and qualifications for other work.  Discrimination in property and inheritance laws also are a factor.  Human Rights Watch interviewed one woman and the children of another woman who became sex workers to support their families after their husbands died of AIDS.  Similarly, Association François-Xavier Bagnoud (FXB) has found that: 

Widows often face extreme poverty after the loss of their husband, and those that live in the areas from which contracted CSWs [commercial sex workers] are recruited, will be under pressure to take up this work, which means that their children may have to go with them and live in an area where children are most likely to be pushed into sex work themselves.384

There are no reliable figures on the proportion of sex workers who are children, but according to a government study in 1994 of six major cities, 30 percent of sex workers studied were under the age of twenty and 39.4 percent started the work before they turned eighteen.385

Children of sex workers who are orphaned or whose mothers are unable to care for them may face additional barriers to finding care and getting other services because of discrimination against their mothers.  The director of a private hospice in Tamil Nadu explained why the organization began caring for sex workers’ children:  “First we had the hospice where the patients live.  Some of their children become orphans and so we sent some children to other orphanages.  But nobody wants prostitutes’ children in their home.  The [private] hostels are refusing to admit them.  There are no government hostels in the area.”386  At a privately-run home for children of sex workers, several of whom had parents living with HIV/AIDS, the director explained that in order to enroll the children in school, they had not told the schools that the children’s parents were sex workers because they feared they would be discriminated against.387  The organization had had to change houses twice in two years, the director told us, because neighbors would protest the sex workers coming to the home to visit their children.388

Working Children

Because AIDS is an especially protracted and debilitating disease, and as a parent or other household wager-earner dies or becomes increasingly unable to work either inside or outside of the home, children may be needed to replace their income or to support them.  Children may be kept out of school to care for their parents, to do more domestic work when their mothers go to work to replace their father’s lost income, or to work for income themselves as their parents become ill.  These children may also be more vulnerable to HIV transmission if they are engaged in work that puts them at risk and if they are not provided with accurate information about how to protect themselves.

Ravi K., for example, whose story is recounted above, stopped school temporarily to care for his sick father and to work.  Uma S.’s son went to work picking rags after his mother, who probably contracted HIV when she was sold into prostitution, became very ill and unable to work.389

Ramesh P. dropped out of school to care for his younger brother so his mother could work.390  He was twelve years old and living in a slum in Chennai when we interviewed him.  There was no running water and no electricity in his home when we visited, and open sewers ran beside the one-room brick structure.

Ramesh’s father was an injection drug user, HIV-positive, and rarely worked, his mother said.  Ramesh had three brothers and sisters, and he and his two other school-age siblings started school only two years before, when a local NGO provided books, uniforms, and school bags, and paid the sixty-five rupee (U.S.$1.35) annual school fee.  Ramesh was placed in the second grade but, he told us, “I didn’t like to go to school with young children.”  Shortly before the year-end exams, his mother gave birth to her fourth child and pulled Ramesh out of school to care for the baby so she could work.  “He stopped because there was no one to take care of his younger brother. . . .  He didn’t want to go with the small children, so I asked him to take care of the baby,” she said.  Ramesh’s mother told us that she was about to send him looking for paid work, and she hoped he would find something in a mechanic’s shop.  “That would be a good position.  He is weak—his knowledge is poor and he can’t get into other things.”391

Girls are often the first pulled out of school to care for sick family members and, especially as their mothers become ill, to take on even more domestic work.392  For example, Lalita R.’s grandmother pulled her out of school when her mother died of AIDS to care for her younger brother (who stayed in school), her uncle, and the grandmother herself.  Lalita prepared all the family’s meals, washed the clothes, cleaned, and fetched water and firewood.393  “Girls are seen as a source of unpaid labor,” an NGO community worker explained:

They have to do the work of household chores.  The eldest girl has to care for younger children and may not be provided with education.  Among very poor families, not much is spent on girls’ education.  They may send them to fifth or eighth grade, and then get them inducted into household work, and then they get married.  The trend is changing, but it is a very slow process.394

A social worker who works in Namakkal, the district in Tamil Nadu with the highest rate of HIV infection, described another case: 

Children are taking care of their parents.  They are also very vulnerable to STDs [sexually transmitted diseases] and HIV.  For example, a month ago when I was at the hospital, I found an eight-year-old positive child looking after her positive mother there.  She was begging for money at the hospital.  We are afraid that she might be being sexually exploited. . . . The family dumped them both in the government hospital and left.395

We also interviewed two brothers, ages sixteen and thirteen, whose older sister had dropped out of school to care for them when their parents died of AIDS.  Both boys were still in school, they said, and their aunt helped pay for their food, clothes, and education.396

Human Rights Watch interviewed a thirty-five-year-old man and his second wife, both living with HIV/AIDS in rural Tamil Nadu.  The man had a daughter and a son from his first wife, who had committed suicide, he said.  The son was in ninth grade at a government institution in Chennai, but according to the father, his eleven-year-old daughter was “not studying.”  “She has never been to school,” he said.  “I don’t have the money to send her.  She doesn’t work; she just helps in the house with household work.”397

According to the Indian government: 

On an average, girls work 10 hours a day in the home and are more likely to drop out of school because of household demands.  If girls try to balance school and household chores, they will not perform as well as boys.  Girls are kept at home to look after their siblings, allowing their mothers time to earn money outside of the home. . . .  Nearly 50 percent of female child labor in urban areas is engaged in household responsibilities and sibling care, or is engaged in domestic child labor.398 

A study of households with orphans in Jaipur, Mandore, and Pali districts in Rajasthan published in 2001 found that girls who had lost one or both parents were being pulled out of school, if they had been enrolled at all, to do household work such as preparing and cooking food, cleaning, and collecting firewood and water.399

The Convention on the Rights of the Child in article 32 recognizes the right of children “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.”  Other treaties to which India is a party obligate the state to prohibit all forms of slavery, including debt bondage, child servitude, and forced labor, and to affirmatively protect children from economic exploitation and hazardous work.400

Indian law prohibits children under fourteen from working in hazardous occupations and in factories and regulates their work in non-hazardous occupations, but these laws have not been well enforced.401  Child domestic labor is not covered by Indian law.  Bonded labor, for children and adults, is also illegal but is still widespread in India.402  There is no minimum age of employment.403 

The Government’s Responsibility for Children in Need of Care and Protection

There is no policy or procedure for children whose parents die. . . .  There is no structure to determine where the child goes.  It’s just random what happens with the child.

—Staff member of INP+ (Indian Network for People Living with HIV/AIDS), Chennai, Tamil Nadu, November 14, 2003

Although the Convention on the Rights of the Child requires that institutional care for children be used as a measure of last resort and that children be kept in family-type care as far as possible, India’s central and state governments, as a matter of policy, look to institutions as the first and virtually only solution for children whose families are unable to care for them.  At the same time, many institutions, both public and private, reject children known to be HIV-positive.  Several government officials made the dubious assertion that there were no HIV-positive children in their institutions; others pointed to a few, small private institutions that care solely for people living with HIV/AIDS.  Moreover, as explained previously in the section on educating children about HIV/AIDS, despite obvious risks of transmission within institutions, government officials told us that they were not educating institutionalized children about HIV/AIDS.

International and Domestic Legal Framework

The Convention on the Rights of the Child in article 19 requires states parties to take all appropriate measures to protect children from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardians(s) or any other person who has the care of the child.”  Article 20(1) provides that “a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.”  This provision reinforces article 24(1) of the International Covenant on Civil and Political Rights guaranteeing children “the right to such measures of protection as are required by his status as a minor.”

The Convention on the Rights of the Child specifically obliges states parties to take “all appropriate” measures to protect children from trafficking, being separated from parents against their will, and economic exploitation, hazardous labor, involvement in drug trafficking, sexual exploitation and abuse, and any other form of exploitation.404

Regarding children orphaned by HIV/AIDS, the Committee on the Rights of the Child, interpreting articles 3 (best interests of the child), 20 (children deprived of their family environment), and 25 (review of treatment) of the Convention, noted that states must provide assistance “so that, to the maximum extent possible, children can remain within existing family structures,” that where this is not possible, states should provide, “as far as possible, for family-type alternative care (e.g. foster care),” and that “any form of institutionalized care for children should only serve as a measure of last resort.”405

The Indian Constitution, in article 39, mandates that the state ensure that “that the tender age of children is not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength . . . and that childhood and youth are protected against exploitation and against moral and material abandonment.”  The 2003 National Charter for Children, which does not carry the force of law, provides that the state shall protect children from abuse and exploitation, and provide care and protection to children from “marginalized and disadvantaged communities,” including “special interventions and support” in health and education.406

The Juvenile Justice (Care and Protection) Act, 2000, covers both children in need of care and protection, and children in conflict with the law, defining a child as anyone under the age of eighteen.407  Under the law, a range of people, including police, NGOs, and social workers, are empowered to bring a child before a Child Welfare Committee, which determines whether the child is in need of care and support.408  If so, the committee may place the child in a children’s home (separate from children in conflict with the law), restore the child to his or her parents, or place the child in the care of adoptive or foster parents.409  In practice, adoption is an option primarily for only very young children, and no foster care system has been put into place.410  According to the director of Tamil Nadu’s Department of Social Defense, his state was not interested in pursuing foster care: 

We are conscious of this [option], but we don’t encourage it too much because the government is providing adequate care through homes [institutions] . . . .  We feel that some people could abuse children in the name of foster care.  Consciously we are not very much encouraging it because the existing structure is strong and in place so why do it here?  We have a provision for it [foster care] in the law so any time we can’t cope, we can go to it.  We are not doing it now but we could.411 

Children who are placed in juvenile homes are not free to leave for a specified period of time, although their families can petition the committee for their release.412  Outside of this system, numerous private organizations run various kinds of institutions for orphaned and destitute children.

The Ministry of Social Justice and Empowerment at the national level and corresponding state government departments are responsible for children in conflict with the law and children in need of care and protection, which include street children and orphans.413  A ministry official told Human Rights Watch that the ministry did not have an estimate of how many children it was responsible for.414  The ministry also licenses adoption agencies, and, through the Central Adoption Resource Agency,monitors and regulates them.415  The state is also responsible for “[r]eview of the quality of care and treatment provided to the child who has been placed in institutions for care and protection.”416

The director of Tamil Nadu’s Department of Social Defense explained that his department runs or funds private groups to run twenty-five to thirty homes for around 3,000 children in the state.  While these include both children whose parents are unable to care for them and children in conflict with the law, the director stated emphatically that “[m]ore than 90 percent of the children in our care belong to the first category—the neglected category—orphans, etc. who have not committed any so-called crime.”417  In Tamil Nadu, the state AIDS control society is also supporting a few institutions that care for small numbers of children and adults living with AIDS.418

In Kerala, officials told us that the state runs forty-two orphanages for orphaned and destitute children and young people up to age twenty-one, and thirteen juvenile justice homes for children in conflict with the law.419

Official Denial of AIDS Orphaning and Orphans Living with HIV/AIDS

We don’t know who orphans are, where orphans are, who are the children who are infected. . . .  We don’t know—are orphanages seeing increasing numbers of children being abandoned?  Most are not testing so how do they know if they have positive children?

—U.N. official, New Delhi, December 1, 2003

At the national level, the Ministry of Social Justice and Empowerment’s joint minister acknowledged to Human Rights Watch that children orphaned by AIDS were of concern to the ministry and that HIV-positive children were in government institutions.  “This is becoming a major worry,” she told us, “because right now the numbers are small and the children are young, but as the lifespan increases, we have to think how to rehabilitate these children.”420  However, it is notable that the Ministry of Social Justice and Empowerment, in its 2002-2003 annual report, makes no mention of HIV/AIDS.421 

In contrast, state government officials in Kerala and Tamil Nadu seemed not to appreciate the scope of the problem.  An official in Kerala’s Social Welfare Department, equating orphans and children living with HIV/AIDS, told Human Rights Watch:  “HIV orphans are not a problem.  There are only very few children who have HIV.”422  According to the head of Kerala’s state AIDS control society:  “We don’t have the numbers of AIDS orphans—we can’t get the figures because of fear and discrimination.  We haven’t done a survey.”  The office, he said, knew of thirty-five to forty HIV-positive children in the state.423  When asked if he believed that this number represented all of the HIV-positive children in the state, he replied: 

There could be more, we don’t know.  The ideal thing is not to disturb them.  What is the use of knowing?  It creates problems for them. . . .  You ask what we are doing for HIV-positive children and orphans.  We are not able to do much but supply some medicine, but we are helping by not making a big thing of it.  It helps them to live a normal life.  So if we get knowledge of it, we don’t want to divulge it.  When there is an issue, we intervene and get it done.

Tamil Nadu’s Commissioner for Maternal, Child Health and Welfare (and acting Director of Family Welfare) told us that he believed the problems of children affected by AIDS had been overstated:  “They have given an erroneously alarming situation.  We have awareness creation here because NGOs are competing with each other and have created too much publicity.  The problems are the same in other states.”424  The director of Tamil Nadu’s Department of Social Defense told Human Rights Watch, “[t]here are no HIV-positive children in these homes,” referring to the state-run and state-funded children’s institutions under his jurisdiction.425  When asked what would happen if a child in a home was found to be HIV-positive, he replied, “We won’t separate them because we don’t differentiate between infected and uninfected children.  But there are none in the homes.”  When asked if he expected the number of children orphaned by AIDS to increase in the future, he would not say, but assured Human Rights Watch that the department “was quite capable of handling it,” stating that government homes could handle up to 6,000 children, twice the current number.

Other state officials also told us that they had no programs for the care and support of AIDS-affected children.  According to the head of Kerala’s state AIDS control society, the state was not providing any special care and support for children affected by AIDS, although it was seeking international funds to do so.426

A district level officer for Andhra Pradesh’s state AIDS control society told us, “There are no programs for children in my district.”  When asked what happens to orphans, he responded, “The grandparents take them in.  Of course, they will die too.  Basically, there is no care for children orphaned by AIDS.”427  The society’s deputy director confirmed that they had no separate policy for children, only NACO’s policy, and that “[t]here is no government institution for AIDS orphans.”428

Harms of Institutionalization

The potential harms to children from institutionalization have been well documented.429  While short-term institutional care may be a useful tool in some circumstances and might be the only possible solution for some children, it must be used as a measure of last resort and children must be provided with adequate care in accord with their best interests.430

In previous reports, Human Rights Watch and others have documented the poor conditions of government institutions in India for abandoned and orphaned children, as well as those accused of crimes.431  NGOs working with children orphaned by AIDS told us that government institutions generally do not provide adequate care.  According to Meena Seshu of SANGRAM:

In the government care homes . . .  even the calories and blankets are questionable.  We don’t put children in government homes, only private ones.  As a policy, the organization believes that government homes should be up to the mark and take kids, but they are not up to the mark, and we don’t place children there.432

A community health worker for families affected by HIV/AIDS, in explaining the choices for the orphans he works with, told us:

There are hostels but even hostels have their own culture:  they have age limits, the educational standard, and children have to adapt to the lifestyle.  There are enough institutions, but the culture there is a problem.  There are a few cases of hostels rejecting positive kids, but the ones we link with are O.K.  But we don’t say the parents are HIV-positive.433

Institutions Rejecting HIV-Positive Children

Human Rights Watch found several cases in which institutions had turned away children because of their or their parents’ HIV status, and NGOs confirmed that this practice was occurring.  Although some of these institutions were private institutions, the government is supposed to regulate child care institutions and it relies on private institutions to care for children where no government institutions are available.

Kannammal P., whose was living with HIV/AIDS, told us her oldest child was asked to leave a residential school in Chennai after the school learned the child’s father was HIV-positive.434  She explained: 

In 1999 my husband was diagnosed with HIV, and just before that my eldest daughter had been placed in a Christian hostel.  We were having financial difficulties, and I had to put her in a hostel.  As soon as my husband was diagnosed, I felt that if I shared the information with the priest there [at the hostel], they would help me.  So this is why I shared my husband’s status with him.  Then they asked the child to be tested, and then they wanted her to leave. . . .  Despite pleading with the school authorities, they said “Sorry, please find another place.  We are not free to take her.”  They didn’t tell me openly that it was because of AIDS, but they said to take her home and had a lot of other excuses. 

I felt that by telling the truth I only lost something.  After that, for about six months or a year, I was trying to provide school for the child.  Then I went to World Vision and got her into another hostel.  She is now ten years old.

The girl’s HIV test result was negative.435

Priya V., eleven years old and HIV-positive, had already lived with her grandparents, an uncle, and in two institutions at the time we interviewed her in a government-funded care home.  According to the home’s director, as he consulted the notes in her file: 

She lost both her parents and was being taken care of by her grandparents.  They had financial problems and then couldn’t take care of her.  They sent her to an uncle who sent her to a regular children’s home.  There she kept getting sick, so they referred her for an HIV test and found that she was [HIV-]positive.  The home couldn’t take care of [HIV-]positive children so they sent her here, where she has been for almost a year.  She was there for about ten months.436 

“My family doesn’t visit here,” Priya told us.  “After my family dropped me in the home, nobody ever came there.  I want to visit my family.”437

A community health worker of an NGO that helps place orphaned and vulnerable children confirmed that some institutions reject children living with HIV/AIDS:

It’s not easy for positive children to find [residential] placement.  The homes ask for certificates that the children are negative.  We feel it is a discriminatory practice that we don’t want to reinforce.  We educate them about what HIV testing is all about and that they should take the child as he or she is.  We tell them that they can’t do testing without the parents’ consent.  It is very different the moment we say that these are children of positive parents.438

When asked what institutions required medical certificates, the worker replied:

Private schools, mostly church-run orphanages.  Regular schools also ask for negative certificates.  They ask for negative certificates because they know us, they know we are working with positive people.  Sometimes when the social worker goes, they attach stigma because people know that that person works with positive families.  If I sign a letter, it’s read as an HIV-positive case. . . .  Adoption agencies require negative certificates even though you can’t get a good antibody test until about eighteen months.—domestic and international adoption.439

Human Rights Watch also interviewed two directors of private institutions that did not take HIV-positive children, one because, the director said, it lacked the resources to care for them, and the other because it “didn’t have enough space,” the director told us.440  The director listed five children from three parts of the state that the home had turned away.”441  Both directors said they did take AIDS orphans.

The Joint Secretary of the Ministry of Social Justice and Empowerment told Human Rights Watch that orphanages for children younger than six, when children are most likely to be considered for adoption, “definitely test” for HIV.442  “Every child picked up is routinely screened,” and there are some HIV-positive children in government institutions, she said.  When asked if she knew of cases where homes turned away HIV-positive children, she told us she had “not personally come across this.”

An official of Kerala’s Social Welfare Department was adamant that state institutions did not take HIV-positive children.443  When we asked how the government provided care and support for HIV-positive children, the official answered, “There is none.”  Kerala’s Secretary of Social Welfare told us that the state was considering setting up a separate home for orphaned children living with HIV/AIDS, but that there was nothing for these children in the meantime.444

Kerala’s Social Welfare Department appears to treat children living with HIV differently than children with any other disease.  When asked if children with tuberculosis were excluded from state institutions, the social welfare department official explained that there was not the same kind of discrimination against people with tuberculosis “so we give proper treatment, and after that admit them into an institution. . . .  We have separate institutions for children of lepers and children with leprosy, and we give them treatment.  It is a curable disease.”  When asked if children with cancer were accepted, the official answered, “Yes, we take.  Only HIV we don’t take.”  When we asked again why children living with HIV/AIDS were excluded, the official explained that the problem was that they “could not make a special institution for four children—hire a cook, other staff—so those children go to the health department.”  According to the official, there are two or three private institutions in the state especially for children living with HIV/AIDS.

Alternatives to Institutionalization

Although Indian law provides for foster care, no effective system is in place.  Human Rights Watch interviewed children in institutions put there because their parents or extended family members, who were otherwise willing, simply could not afford to care for them.  Others pointed out that providing care and support for parents avoids or postpones the children coming to need care.  According to Dr. Suniti Solomon of YRG Care in Chennai:

When we think of the care and protection of children, we must think of their parents and not let children become orphans.  We should focus on the family as a unit rather than the child, mother, father separately, so that we can treat both parents if they are positive along with the child.  So we keep the whole family going.  I think that’s the most important thing. . . .  Especially for a disease like this one—it’s so stigmatized and discriminated against.445

Another doctor in Chennai explained:

We started giving ARVs [antiretroviral drugs] to children, and then realized we had to treat the mothers as well.  Nobody can care for children as well as a mother can.  If we can provide ARVs for the mother, then the child will have someone to care for them.  This minimizes the number of orphaned years.446

Human Rights Watch located no instances of the government employing alternatives to institutionalization for children whose families could care for them.  Although they are no substitute for good government programs, well-run NGO programs can serve as models of efforts to keep children in economically fragile families.  However, it should be noted that NGOs’ overall coverage is very limited.  Human Rights Watch visited several NGOs that are helping children and adults with AIDS live in their communities by providing small amounts of food, medical care, and other forms of support.  These include Naz Foundation in Delhi; READ (Rural Education and Action Development) in Andimadam, Tamil Nadu; SANGRAM in Sangli, Maharashtra; and World Vision in Chennai, Tamil Nadu.  Other organizations that we did not visit are, undoubtedly, also developing similar programs worthy of further study.  However, compared with the need, these programs’ reach is miniscule.

Finding alternatives to institutionalization will also require addressing discrimination within the community that keeps people from wanting to take on AIDS-affected children.  An NGO community worker for HIV/AIDS-affected families explained:  “Practically speaking, community care doesn’t work because people have to scratch to make ends meet.  Most families refuse to take care of a child.”447  The director of a government-funded care home for woman and children living with HIV/AIDS told us: 

The surrounding community is not accepting of us. . . .  So we need government policy to train the community.  What to do when there is no community?  This community outside doesn’t even touch these children.  So these children get stuck here. . . .  Maybe in Africa there are so many cases that the community has adjusted to it.  It’s not like that here.  People never reveal their status.  They are scared to reveal their status.  So in this community, who knows who is infected?  So how are we going to develop a community that will accept these children? 

We have two boys here who don’t look HIV-positive.  They could live in home-based care.  But they don’t have a home.  They don’t have a community.448

A social worker also explained:

We don’t feel that it is sustainable to create hostels.  Now the numbers are small, but they are going to increase.  So we are trying to motivate the community to support orphans.  Like grandparents.  By providing daily food provisions, uniforms so the children can go to school, mobilizing people in the community. . . . 

Children don’t want to leave their families, and they don’t understand why they have to.  They are too small to understand HIV, and it’s very difficult for them.  I’ve spoken with children who say they want to live in their communities.  But in the community they face a lot of discrimination.  For example, the nine-year-old faces a lot, but we keep visiting and we show that we don’t have problems so the community is becoming more accepting.  Though the community is “sensitized,” they don’t send their children to play with her.  There are still a lot of misconceptions, and people fear that their children will contract HIV.449

Staff of India HIV/AIDS Alliance also told Human Rights Watch:

Parents always ask for a hostel [residential institution], and we try to discourage them because the children should stay with their parents. . . .  In Andhra Pradesh, initially NGOs said the children should go to institutions, but then they realized that with the growing numbers of new orphans there would not be enough, so they started looking into community adoption and foster care.  Community fostering has been successful in a few situations. . . .  It’s a new concept—fostering in India has just been extended families, the grandmother or the uncle, but not so extended, really. 

When stigma and discrimination are not addressed, the family wants the child to go out because they are afraid of discrimination in the community and in school.450

The obstacles to developing a foster care program may be confronted in part by better educating the community at large, providing resources to foster families, and monitoring the quality of care provided.



[344] See, e.g. Mehra, Impact of HIV/AIDS on Children in Manipur, pp. 13-14.

[345] Human Rights Watch interview with World Vision staff, Chennai, Tamil Nadu, November 10, 2003.  In other countries, Human Rights Watch has found that girls may be sexually abused by their guardians.  Human Rights Watch, Policy Paralysis:  A Call for Action on HIV/AIDS-Related Human Rights Abused Against Women and Girls in Africa, December 2003, http://www.hrw.org/reports/2003/africa1203/;Human Rights Watch, Suffering in Silence:  The Links between Human Rights Abuses and HIV Transmission to Girls in Zambia (New York:  Human Rights Watch, 2002), http://www.hrw.org/reports/2003/zambia/.

[346] Dr. P. Manorama, “The Challenge of Working with Orphans:  Indian Perspective,” presentation at the Fourth International Conference on AIDS India, Chennai, Chennai, Tamil Nadu, November 12, 2003.  See also Ekstrand, et al, “HIV/AIDS in India,” Country AIDS Policy Analysis Project, p. 110 (citing Mohammed Nazeem M, "Children orphaned by AIDS," abstract no. ThPeF7965, XIV International Conference on AIDS, Barcelona, July 7-12, 2002; and Association François-Xavier Bagnoud, Orphan Alert 2.

[347] Human Rights Watch interview with truck driver, Sangli district, Maharashtra, November 27, 2003.

[348] Human Rights Watch interview with World Vision staff, Chennai, Tamil Nadu, November 10, 2003.

[349] UNAIDS, UNICEF, USAID, Children on the Brink 2002:  A Joint Report on Orphan Estimates and Program

Strategies, July 2002, http://www.unaids.org/html/pub/Topics/Young-People/ChildrenOnTheBrink_en_pdf.pdf (retrieved April 26, 2004), p. 7-8.

[350] Human Rights Watch interview with Lalita R., Sangli district, Maharashtra, November 29, 2003.

[351] Human Rights Watch interview with Lalita R.’s grandmother, Sangli district, Maharashtra, November 29, 2003.

[352] Human Rights Watch interview with Lalita R., Sangli district, Maharashtra, November 29, 2003.

[353] Human Rights Watch interview with Lalita R.’s neighbor, Sangli district, Maharashtra, November 29, 2003.

[354] Human Rights Watch interview with Lalita R.’s brother, Sangli district, Maharashtra, November 29, 2003.

[355] Human Rights Watch interview with Anita T., Chennai, Tamil Nadu, November 12, 2003.

[356] Human Rights Watch interview with R. Selvam, Tamburam, Tamil Nadu, November 13, 2003.

[357] Human Rights Watch interview with director of government-funded home for women and children living with HIV/AIDS, Tamil Nadu, November 13, 2003.

[358] Human Rights Watch interview with counselor at government-funded home for women and children living with HIV/AIDS, Tamil Nadu, November 13, 2003.

[359] Human Rights Watch interview with Jaya V. and her mother, Chennai, Tamil Nadu, November 12, 2003.

[360] Ibid.

[361] Human Rights Watch interview with CPK+ (Council of People Living with HIV/AIDS in Kerala) staff, Ernakulam, Kerala, November 24, 2003.

[362] Human Rights Watch interview with Monisha S., Chennai, Tamil Nadu, November 13, 2003.

[363] Human Rights Watch interview with staff of government-funded care home for women and children living with HIV/AIDS, Chennai, Tamil Nadu, November 13, 2003.

[364] Human Rights Watch interview with Monisha S., Chennai, Tamil Nadu, November 13, 2003.

[365] Human Rights Watch group interview with SANGRAM social workers, Sangli, Maharashtra, November 27, 2003.

[366] Human Rights Watch interview with World Vision community worker, Chennai, Tamil Nadu, November 10, 2003.

[367] Human Rights Watch interview with Guruswamy G. and her mother, Sangli district, Maharashtra, November 29, 2003.

[368] Human Rights Watch interview with doctor, Chennai, Tamil Nadu, November 11, 2003.

[369] Human Rights Watch interview with Sumathi M. and her sixteen-year-old son, Sangli district, Maharashtra, November 27, 2003.

[370] Human Rights Watch interview with D. Kumar and NGO field staff, Ariyalar district, Tamil Nadu, November 15, 2003.

[371] Association François-Xavier Bagnoud, Orphan Alert 2, para. 6.1.

[372] Human Rights Watch interview with Punima J. and her grandfather, Ariyalar district, Tamil Nadu, November 15, 2003.

[373] Human Rights Watch interview with eleven-year-old girl and her grandfather, Ariyalar district, Tamil Nadu, November 15, 2003.

[374] Human Rights Watch interview with Selvi J. and her grandmother, Chennai, Tamil Nadu, November 17, 2003.

[375] Human Rights Watch interview with Meena Seshu, SANGRAM, Sangli, Maharashtra, November 27, 2003.

[376] Human Rights Watch interview with doctor, Chennai, Tamil Nadu, November 18, 2003.

[377] Committee on the Rights of the Child, General Comment 3:  HIV/AIDS and the Rights of the Child, para. 36; see Human Rights Watch, Police Abuse and Killings of Street Children in India (New York:  Human Rights Watch, 1996), http://hrw.org/reports/1996/India4.htm.

[378] Government of India, Second Periodic Reports of States Parties due in 2000, para. 1118.

[379] Ekstrand, et al, “HIV/AIDS in India,” Country AIDS Policy Analysis Project, p. 110 (citing K.M. Misra, S. Bhattacharya, D. Mukherjee, et al, “Primary prevention programme amongst street and working children—a pioneering collaborative effort between a NGO and a University,” abstract no. MoPeD3593, XIV International Conference on AIDS, Barcelona, July 7-12, 2002).

[380] Association François-Xavier Bagnoud, Orphan Alert 2, chapter 6; Ekstrand, et al, “HIV/AIDS in India,” Country AIDS Policy Analysis Project, p. 110 (citing K.M. Misra, S. Bhattacharya, D. Mukherjee, et al., “Primary prevention programme amongst street and working children—a pioneering collaborative effort between a NGO and a University,” abstract no. MoPeD3593, XIV International Conference on AIDS, Barcelona, July 7-12, 2002; U. Sharma, A. Purohit, H.S. Rajpurohit, et al., "Reaching out to street children & youth regarding HIV/AIDS awareness in Jaipur city," abstract no. MoPeF3967, XIV International Conference on AIDS, Barcelona, July 7-12, 2002; N. Sahay, A. Saha, E. Nassir, et al., "Incorporation of innovative life skills in an ongoing comprehensive HIV risk reduction intervention among street children of Nizamuddin, Delhi, India," abstract no. ThPeD7728, XIV International Conference on AIDS, Barcelona, July 7-12, 2002).

[381] Human Rights Watch interview with M.D. Nasimuddin, Director, Department of Social Defense, Government of Tamil Nadu, Chennai, Tamil Nadu, November 17, 2003.

[382] Human Rights Watch interview with Jayatri Chandra, Joint Secretary, Ministry of Social Justice and Empowerment, New Delhi, December 4, 2004.  Although the Indian government reported having various programs for street children to the Committee on the Rights of the Child, it did not provide data about these programs’ coverage and impact.  Government of India, Second Periodic Reports of States Parties due in 2000, para. 114.

[383] Email from Leena Menghaney, HIV/AIDS Unit, Lawyers Collective, to Human Rights Watch, May 19, 2004.

[384] Association François-Xavier Bagnoud, Orphan Alert 2, para. 1.5.

[385] Government of India, Second Periodic Reports of States Parties due in 2000, para. 1253.

[386] Human Rights Watch interview with hospice director, Chennai, Tamil Nadu, November 9, 2003.

[387] Human Rights Watch interview with director of home for children of sex workers, Kerala, November 21, 2003.

[388] Ibid.

[389] Human Rights Watch interview with Uma S., Chennai, Tamil Nadu, November 12, 2003.

[390] Human Rights Watch interview with Ramesh P. and his mother, Chennai, Tamil Nadu, November 17, 2003.

[391] Ibid.

[392] See, e.g., Mehra, Impact of HIV/AIDS on Children in Manipur, pp. 19-20.

[393] Human Rights Watch interview with Lalita R., Sangli district, Maharashtra, November 29, 2003.

[394] Human Rights Watch interview with World Vision community worker, Chennai, Tamil Nadu, November 10, 2003.

[395] Human Rights Watch interview with social worker, Chennai, Tamil Nadu, November 13, 2003.

[396] Human Rights Watch interview with two brothers, ages thirteen and sixteen, Ariyalar district, Tamil Nadu, November 15, 2003.

[397] Human Rights Watch interview with thirty-five-year-old man and twenty-five-year-old woman, Ariyalar district, Tamil Nadu, November 15, 2003.

[398] Government of India, Second Periodic Reports of States Parties due in 2000, paras. 232, 236.

[399] Association François-Xavier Bagnoud, Orphan Alert 2, sec. 2.1 and chapter 5.

[400] Convention on the Suppression of Slave Trade and Slavery, signed at Geneva, September 25, 1926 (entered into force March 9, 1927, and ratified by India June 18, 1927); Protocol Amending the Slavery Convention, signed at Geneva, September 25, 1926, with annex, done at New York, December 7, 1953 (entered into force, December 7, 1953, and signed by India March 12, 1954); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, adopted April 30, 1956, 266 U.N.T.S. 3 (entered into force April 30, 1957, and ratified by India June 23, 1960); ILO Convention No. 29 concerning Forced or Compulsory Labour, adopted June 28, 1930, as modified by the Final Articles Revision Convention, adopted October 9, 1946 (entered into force May 1, 1932, and ratified by India November 30, 1954); ILO Convention No. 105 concerning the Abolition of Forced Labour, adopted June 27, 1957 (entered into force January 17, 1959 and ratified by India May 18, 2000); International Covenant on Civil and Political Rights (ICCPR), arts. 8, 24, opened for signature December 16, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976, and ratified by India April 10, 1979); International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted December 16, 1966, G.A. Res. 2200A (XXXI), 993 U.N.T.S. 3 (entered into force January 2, 1976, and ratified by India April 10, 1979), arts. 7, 10.  Bonded child labor, prostitution, production and trafficking of drugs, and work “likely to harm the health, safety or morals of children” are identified as among the “worst forms of child labour” by ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which India has not ratified.

[401] Child Labour (Prohibition & Regulation) Act, 1986; The Factories Act, 1948. 

[402] The practice of bonded child labor violates various provisions of Indian law, including the constitutional rights to life and liberty; the prohibition on trafficking, begar, and other similar forms of forced labor; and other constitutional protections for children.  Constitution of India, arts. 21, 23, 24; Bonded Labour (System) Abolition Act (1976).  See Human Rights Watch, Small Change:  Bonded Child Labor in India’s Silk Industry, vol. 15, no. 2(c), January 2003, http://www.hrw.org/reports/2003/india/; Human Rights Watch, Small Hands of Slavery:  Bonded Child Labor in India (New York:  Human Rights Watch, 1996), http://hrw.org/reports/1996/India3.htm.

[403] Article 32(2)(a) of the Convention on the Rights of the Child requires states to “provide for a minimum age or minimum ages for admissions to employment.”  When ratifying the Convention on the Rights of the Child, India made no reservation to the definition of a child and declared that it would “take measures to progressively implement the provision of article 32, particularly paragraph 2(a), in accordance with its national legislation and relevant international instruments to which it is a state party.”

[404] CRC, arts. 9, 11, 32-35.  ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (1999) defines the worst forms of child labor.  India has not ratified that Convention.

[405] Committee on the Rights of the Child, General Comment 3:  HIV/AIDS and the Rights of the Child, paras. 34-35.

[406] National Charter for Children, 2003, pt.-I, sec.-I. 

[407] Juvenile Justice (Care and Protection of Children) Act, 2000, para. 2(k).  The law defines a "child in need of care and protection" as a child:

(i) who is found without any home or settled place or abode and without any ostensible means of subsistence,

(ii) who resides with a person (whether a guardian of the child or not) and such person-

(a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or

(b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person

(iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after,

(iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child.

(v) who does not have parent and no one is willing to take care of or whose parents have abandoned him or who is missing and run away child and whose parent cannot be found after reasonable injury,

(vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal act,

(vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking,

(viii) who is being or is likely to be abused for unconscionable gains,

(ix) who is victim of any armed conflict, civil commotion or natural calamity.

Ibid., para. 2(d).

[408] Ibid., chapter 3.

[409] Ibid., paras. 39, 40, 42.

[410] FXB has also noted the strong bias towards institutionalizing orphaned and destitute children.  Association François-Xavier Bagnoud, Orphan Alert 2, chapter 9.

[411] Human Rights Watch interview with M.D. Nasimuddin, Director, Department of Social Defense, Government of Tamil Nadu, Chennai, Tamil Nadu, November 17, 2003.

[412] Juvenile Justice (Care and Protection of Children) Act, 2000, para. 59, and chapter 3.

[413] Human Rights Watch interview with Jayatri Chandra, Joint Secretary, Ministry of Social Justice and Empowerment, New Delhi, December 4, 2004.

[414] Ibid.

[415] Government of India, Second Periodic Reports of States Parties due in 2000, paras. 385, 402.

[416] Ibid., para. 381.

[417] Human Rights Watch interview with M.D. Nasimuddin, Director, Department of Social Defense, Government of Tamil Nadu, Chennai, Tamil Nadu, November 17, 2003.

[418] Human Rights Watch interview with K. Deenabandhu, project director, Tamil Nadu State AIDS Control Society, Chennai, Tamil Nadu, November 18, 2003.

[419] Human Rights Watch interview with social welfare department official, Thiruvananthapuram, Kerala, November 21, 2003.

[420] Human Rights Watch interview with Jayatri Chandra, Joint Secretary, Ministry of Social Justice and Empowerment, Delhi, December 4, 2003.

[421] Ministry of Social Justice and Empowerment, Government of India, Annual Report 2002-2003.

[422] Human Rights Watch interview with social welfare department official, Thiruvananthapuram, Kerala, November 21, 2003.

[423] Human Rights Watch interview with M.N. Gunawardhanan, Project Director, Kerala State AIDS Control Society, Thiruvananthapuram, Kerala, November 19, 2003.

[424] Human Rights Watch interview with M. Mutia Kalaivanan, Tamil Nadu Commissioner for Maternal, Child Health and Welfare, and acting Director of Family Welfare, Chennai, Tamil Nadu, November 17, 2003.

[425] Human Rights Watch interview with M.D. Nasimuddin, Director, Department of Social Defense, Government of Tamil Nadu, Chennai, Tamil Nadu, November 17, 2003.

[426] Human Rights Watch interview with M.N. Gunawardhanan, Project Director, Kerala State AIDS Control Society, Thiruvananthapuram, Kerala, November 19, 2003.  The project director told us that the office had proposed creating a fund to seek international donations to support AIDS-affected children and that the proposal was pending before the government.  Kerala’s Secretary of Health and Family Welfare confirmed that the State AIDS Control Society was seeking additional funds to care for AIDS-affected children.  Human Rights Watch interview with E.K. Bharat Bhushan, Secretary of Health and Family Welfare, Government of Kerala, Thiruvananthapuram, Kerala, November 19, 2003.

[427] Human Rights Watch interview with nodal officer, Andhra Pradesh State AIDS Control Society, November 9, 2003, Chennai, Tamil Nadu.

[428] Human Rights Watch interview with deputy director, Andhra Pradesh State AIDS Control Society, November 9, 2003, Chennai, Tamil Nadu.

[429] See, e.g., David Tolfree, Roofs and Roots:  The Care of Separated Children in the Developing World (Brookfield, Vermont:  Save the Children Fund, 1995); Association François-Xavier Bagnoud, Orphan Alert 2, chapter 9 (citing results of study of four children’s institutions in Rajasthan).

[430] Ibid.

[431] See, e.g., Human Rights Watch, Police Abuse and Killings of Street Children in India , pp. 23-29; National Human Rights Commission, “Minor Raped in Juvenile Home at Hyderabad Gets Relief,” January 6, 2004, http://nhrc.nic.in/dispArchive.asp?fno=634 (retrieved February 24, 2004).

[432] Human Rights Watch interview with Meena Seshu, SANGRAM, Sangli, Maharashtra, November 27, 2003.

[433] Human Rights Watch interview with NGO community health worker, Chennai, Tamil Nadu, November 11, 2003.

[434] Human Rights Watch interview with Kannammal P., Chennai, Tamil Nadu, November 10, 2003.

[435] Ibid.

[436] Human Rights Watch interview with director of government-funded care home for women and children living with HIV/AIDS, Tamil Nadu, November 13, 2003.

[437] Human Rights Watch interview with Priya V., Tamil Nadu, November 13, 2003.

[438] Human Rights Watch interview with World Vision community health worker, Chennai, Tamil Nadu, November 10, 2003.

[439] Ibid.  Special HIV tests exist that can determine in the first weeks of life whether the infant is truly HIV-positive, as opposed to just carrying maternal antibodies.  But these viral tests are more expensive than antibody tests, and they are not widely used in India.  Because of this, the HIV diagnosis of infants with a cheaper antibody test in India, as in many developing countries, requires waiting until the child has shed all the maternal HIV antibodies, which is estimated to take twelve to eighteen months.  Columbia University, Mailman School of Public Heath, “Care of Children:  Infant Diagnosis,” n.d.,http://www.mtctplus.org/intranet/pdf/infantdiagnosis_Lecture.pdf (retrieved May 28, 2004).

[440] Human Rights Watch interview with orphanage director, Chennai, Tamil Nadu, November 16, 2003; Human Rights Watch interview with director of home for children of sex workers, Kerala, November 21, 2003.

[441] Human Rights Watch interview with director of home for children of sex workers, Kerala, November 21, 2003.

[442] Human Rights Watch interview with Jayatri Chandra, Joint Secretary, Ministry of Social Justice and Empowerment, New Delhi, December 4, 2004.

[443] Human Rights Watch interview with social welfare department official, Thiruvananthapuram, Kerala, November 21, 2003.

[444] Human Rights Watch interview with Lida Jacob, Social Welfare Secretary, Thiruvananthapuram, Kerala, November 19, 2003.

[445] Human Rights Watch interview with Dr. Suniti Solomon, YRG Care, Chennai, Tamil Nadu, November 18, 2003.

[446] Human Rights Watch interview with doctor, Chennai, Tamil Nadu, November 11, 2003.

[447] Human Rights Watch interview with NGO community worker, Chennai, Tamil Nadu, November 11, 2003.

[448] Human Rights Watch interview with program director, government-funded home for women and children living with HIV/AIDS, Tamil Nadu, November 13, 2003.

[449] Human Rights Watch interview with social worker, Chennai, Tamil Nadu, November 13, 2003.

[450] Human Rights Watch interview with staff member, India HIV/AIDS Alliance, New Delhi, December 1, 2003; and email to Human Rights Watch from staff member, India HIV/AIDS Alliance, May 13, 2004.


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