Child Rights in India: An Account of Landmark Decisions and Regulations

THIS ARTICLE WAS WRITTEN BY SAKSHAM SHARMA, A STUDENT OF HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA.

Introduction

“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.” — Kofi Annan

The discussion on the international attempts for the protection of the rights of the child brings about the question of application of the principles in the municipal sphere, especially when India is a party to the international resolve to protect the rights of the child. An analysis on the legal protection of rights of the child in India in the light of the international move, requires a four-fold exposition of the concept, viz:

i)-the constitutional protection

ii)-the national policy for children

iii)- the legislative frame work

iv)- the enforceability of international conventions through Indian courts

“The Constitution of India is our paramount legal parchment, our national charter, our fundamental law, our legal wonder with prolixity unlimited[1].” The Constitution of India which came into effect from 26th January, 1950 introduced a revolutionary chapter on the rights of the child.

As Justice Bhagwati has rightly quoted “the child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into the maturity, into fullness on physical and vital energy and most breadth, depth and height of its emotional, intellectual and spiritual being”[2].

Children signify eternal optimism in the human being and provide potential for the development. Every nation whether developed or developing links its future with the status of the child. A child of today cannot develop to be a responsible and productive member of tomorrow’s society unless an environment, which is favourable to his social and physical health, is assured to him. Neglecting children means loss to the society as a whole. If the children are deprived of their childhood-socially, economically, physically and mentally the nation gets dispossessed of the potential human resources for social progress, economic empowerment, peace and order, social stability and good citizenry.

Before the enactment of the constitution, there were bits and pieces of various legislations which had dealt with the child and child labour. The implementations of those provisions were not only tardy but half-hearted[3]. The constitution of India recognized the rights of the child for the first time and included several articles dealing with their liberty, livelihood, development of childhood, non-discrimination in educational spheres, compulsory and free education and prohibition of their employment in factories, mines and hazardous employment.

Research Questions

• Who is considered as a “CHILD” under Indian Context?
• What are the different constitutional commitments backed by a child?
• What are various rights given to children in India?
• How various landmark decisions have changed the status of these rights?
• What are the Legislative steps taken by the Government for securing children their rights?
• Are there any International Conventions for Child Rights?
• How various changes have taken place with time (NGO’s role) and implementation need to be done in order to secure children for the future prospects.

Literature Review

Research on child rights, as well as on the basic needs, health, education, and participation of children, reveals that the rights of children in India are not yet realized. Despite the Government of India’s promises and efforts to ensure child rights, millions of children suffer abuse, exploitation, malnutrition, illness, and mortality. Few of the existing researches on Child Rights are as follows:

• N. L. Mitra (Professor, National Law School of India University, Bangalore) 1998, “Juvenile Justice Law” In this Paper the Author explains the major changes brought about by Juvenile Justice Act, 1986. As stated by the Author, even today, 25 percent of the prison population is composed of juvenile offenders; juvenile offenders stayed with the aged and hardened criminals, Juvenile Court and Board have not been consulted everywhere; Judges in such a Court are not properly trained in the correctional method of a treatment.[4]
• K.Mangal (2007) in his book, author has explained causes and effects of poverty, illiteracy and how behaviour of parents affects children.[5]
• Subramaniam, G.Lisi (2012-13) in his Article the Author has narrated the view that it is everybody’s responsibility to enrich the children’s life and start focusing on development of our children and nation starting from child rights which would go a long way for prosperity of our nation.[6]
• ShitalaShreekantGavand, Dr.SmitaKarve , (April 2015) “Human Rights of Children in India”, Centum (Multi-Disciplinary Bi-Annual Research Journal) In this Article the Author has explained that for better future of our country it is everyone’s duty to strive for welfare of children and child education.
• Hon’bleMr. Justice P. Sathasivam, Judge, Supreme Court of India; (2011) in his Human Rights Year Book mentions the problem of child sexual abuse needs tremendous efforts from three functionaries of State, viz, Executive, Legislative and Judiciary.[7]
• Mina Kabir, (2011) Human Rights Year Book “The Rhetoric and Reality of the Children’s Rights”. According to Author, laws, schemes, rules, conventions, remained only on print on pieces of paper, because they have not translated rhetoric into reality. In order to make “India fit for children” all members of society have to ensure that we will put children first, care for every child, and leave no child behind.

These are some of the major reviews and many more exists.

Research Methodology

The Approach to the research is purely theoretical (Doctrinal research). Nature of the Research includes Descriptive, Critical and Explanatory study. This research tries to dig deep into various Child Rights prevalent in India and various measures taken by Judiciary and legislature in enhancing these rights. Further, the study provides various solutions and implementation that can be done.

Dilemma of the age of child

India’s constitution offer extensive safeguards to the human rights of children. Recent policies and programmes as well as judicial measures have further strengthened prospects for realizing the full range of children rights. The government has declared its commitment to ‘every child’. In reality however more than country’s 400 million children continue to face challenges in their effort to survive, develop and prosper to their full potential in a secure and nurturing environment.

The dilemma begins right from the definition of the ‘CHILD’. Different acts and statutes define the child variously as regards the requirement of age. While the convention states that the child is the person who has not attained the age of 18 years i.e. is not 18 years old[8]; it still remains a question.

STATUTES / ACTS	AGE OF THE CHILD
Indian Majority Act,1875	18 years
The Child Marriage Restraint Act, 1929	21 years for male and 18 years for female
The Children (Pledging of Labour) Act, 1933	15 years
The Factories Act,1948	14 years
The Apprentices Act, 1961	14 years
The Women’s and Children’s Institutions (Licensing) Act, 1956	18 years both for male and female
The Mine’s Amendment Act, 1983	18 years
The Child Labour (Prohibition and Regulation Act), 1986	14 years
The Immoral Traffic (Prevention ) Act, 1986	16 years
The Juvenile Justice Act, 2001	18 years
The Draft Bill of The National Commission For Children, 2000	14 years [9]

CLASSIFICATIONS :

Children have two types of human rights under international human rights law. They have the same fundamental general human rights as adults, although some human rights, such as the right to marry, are dormant until they are of age, Secondly, they have special human rights that are necessary to protect them during their minority.^[18] General rights operative in childhood include the right to security of the person, to freedom from inhuman, cruel, or degrading treatment, and the right to special protection during childhood.^[19] Particular human rights of children include, among other rights, the right to life, the right to a name, the right to express his views in matters concerning the child, the right to freedom of thought, conscience and religion, the right to health care, the right to protection from economic and sexual exploitation, and the right to education.

Children’s rights are defined in numerous ways, including a wide spectrum of civil, political, economic, social and cultural rights. Rights tend to be of two general types: those advocating for children as autonomous persons under the law and those placing a claim on society for protection from harms perpetrated on children because of their dependency. These have been labeled as the right of empowerment and as the right to protection.

United Nations educational guides for children classify the rights outlined in the Convention on the Rights of the Child as the “3 Ps“: Provision, Protection, and Participation.They may be elaborated as follows:

• Provision:Children have the right to an adequate standard of living, health care, education and services, and to play and recreation. These include a balanced diet, a warm bed to sleep in, and access to schooling.
• Protection:Children have the right to protection from abuse, neglect, exploitation and discrimination. This includes the right to safe places for children to play; constructive child rearing behavior, and acknowledgment of the evolving capacities of children.
• Participation:Children have the right to participate in communities and have programs and services for themselves. This includes children’s involvement in libraries and community programs, youth voice activities, and involving children as decision-makers.

In a similar fashion, the Child Rights International Network (CRIN) categorizes rights into two groups:

• Economic, social and cultural rights, related to the conditions necessary to meet basic human needs such as food, shelter, education, health care, and gainful employment. Included are rights to education, adequate housing, food, water, the highest attainable standard of health, the right to workand rights at work, as well as the cultural rights of minorities and indigenous peoples.
• Environmental, cultural and developmental rights, which are sometimes called “third generation rights,” and including the right to live in safe and healthy environments and that groups of people have the right to cultural, political, and economic development.

Amnesty International openly advocates four particular children’s rights, including the end to juvenile incarceration without parole, an end to the recruitment of military use of children, ending the death penalty for people under 21, and raising awareness of human rights in the classroom. Human Rights Watch, an international advocacy organization, includes child labor, juvenile justice, orphans and abandoned children, refugees, street children and corporal punishment.

Scholarly study generally focuses children’s rights by identifying individual rights. The following rights “allow children to grow up healthy and free”.

• Freedom of speech
• Freedom of thought
• Freedom from fear
• Freedom of choiceand the right to make decisions
• Ownership over one’s body

CONSTITUTIONAL COMMITMENTS TO THE CHILDREN

 

Though the concept of the rights of the child was not very lucid at the time of making of the Constitution, it was visualized that children are the assets of the country. They need protection and provisions to develop in complete beings capable to guide the nation. The Indian Constitution contains certain provisions specifically aimed for protection, development and welfare of children.

Provision related to Children in “Constitution of India”:

Article 14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Thus nobody including the children should be denied of equality of status, opportunity and protection.

Article 15(3) which provides for protective discrimination in favour of children, says:  “Nothing in this Article shall prevent state from making any special provisions for women and children.”  Thus in explicit terms, Article 15(3) empowers the State to make special provisions for children as and when it is necessary for the well being of children.[10]

The right to life in Article 21 encompasses all sections of the society including women and children. And this right to live with human dignity is available to a child also.

In VikramDeo Singh Tomar v. State of Bihar,[11] the Supreme Court has taken note of the pitiable conditions prevailing in care homes maintained by the State of Bihar for women and children and has directed the State to improve matters in these homes and provide at least the minimum living conditions ensuring human dignity.

Article 21A makes the State duty bound to provide free and compulsory education to all children below the age of fourteen years in such a manner as a state may, by law, determine,[12]incorporating the dictum delivered by the apex judiciary in Unnikrishnan v. State of A.P.[13]

Article 24 specifically prohibits employment of children below the age of 14 years in any factory, mine or in any other hazardous employment. This provision is incorporated in the Constitution for the safety of the life of children. In Labourers Working on Salal Hydro Project v. State of J. & K.,[14] the court held that construction work is hazardous employment and children below 14 years cannot be employed in such type of work. Article 24 makes it obligatory for the state to protect the economic, social and humanitarian rights of millions of children working in factories and such other work places.[15]

Directive Principles of State Policy 

This part of the Constitution, viz., part IV, also clearly provides for policies directed towards the welfare of the children, as this part has been designed to “strive to promote the welfare of the people by securing and protecting as effectively…[16].

Article 39(a), (e) and (f) specifically provide certain policies to be followed by the State for the welfare of the children. Article 39(f) states “that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”

Article 45 in explicit terms directs the State to endeavour to provide free and compulsory education for all children until they complete the age of 14 years, within a period of 10 years from the commencement of the constitution. This direction reflects the interest of the framers of the constitution as regards the education of the children as education is the foundation for a healthy and proper development of a child.[17]

Child Rights :

Children, being the future of the country, like other laws, the Constitution which is the fundamental law, takes care of the juveniles and has carved out protection to them in many rights which are detailed here under:-

Right to Survival :                         

Article 1 of the 2001 Charter makes the State and the community duty bound to undertake all appropriate measures to address the problems of infanticide and foeticide, especially of the female child and all other emerging manifestations which deprive the girl child of her right to survival.

Right to Health and Nutrition :

Articles 2 and 3 provide for right to health and nutrition respectively. Accordingly the State shall take measures to ensure that all children enjoy the highest attainable standard of health, and provide for preventive and curative facilities at all levels especially immunisation and prevention of micronutrient deficiencies for all children. The responsibility to provide all children from families below the poverty line with adequate supplementary nutrition is also cast upon the State. The State shall take steps to provide facilities for environmental sanitation and hygiene.[18]

Right to a Standard of Living :

The State recognizes in Article 4 that every child is having the right to a standard of living that fosters full development of the child’s faculties. To ensure this, the State shall in partnership with the community, prepare a social security policy for children and shall provide them with infra structural and material support by way of shelter, education, nutrition and recreation.

Right to Play and Leisure :

The right of children to play and leisure is recognised in Article 5 and it is the duty of the State to provide for educational facilities and services for children of all ages and social groups. This includes playgrounds, cultural activities among students and other facilities.

Right to Education :

The Constitution (Eighty-sixth) Amendment Act has now inserted Article 21A in the Constitution which makes education a Fundamental Right for Children in the age group of 6- 14 years by providing that;

“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”. [19]

This revolutionary interpretation of including Right to Education under the perview of article 21A given in the Mohini Jain Case[20] came to be fortified by the Supreme Court‟s subsequent Constitution bench in the Unnikrishnan case[21]. Unfortunately, the Unnikrishnan case restricted the Right to Education to the primary education level and it was held that higher education cannot be made a Fundamental Right. Article 45 providing for universal compulsory and free education up to the age of 14 years has now become a fundamental right with a direct bearing on the status of the child.

Right to be Protected from Economic Exploitation :

The duty of the State to provide protection to children from economic exploitation and from performing tasks that are hazardous to their well-being is also recognised. The state shall also ensure that there is appropriate regulation of conditions of work in occupations and processes where children perform work of a non-hazardous nature and that the rights of the children are protected. The ideal goal is that the State shall move towards a total ban of all forms of child labour.[22]

Article 24 prohibits employment of children below the age of 14 in any factories, mines or in any other hazardous occupations. This article came up for consideration in SalalHydel Project Case[23], where the Supreme Court had an excellent opportunity of interpreting the true meaning and content of Article 24. The Supreme Court held that though the Employment of Children Act, 1938 did not include the construction work on projects because the construction industry was not a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation and under Art.24 children under 14 could not be employed in a hazardous occupation.

The Supreme Court in its decision in M.C. Mehta v. State of Tamil Nadu[24] dealt with child labour working in Match Industries at Sivakasi (Tamil Nadu) directed that children should not be employed in hazardous jobs in factories for manufacture of match boxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.

Right to Protection :

The right to be protected against neglect, maltreatment, injury, and trafficking, sexual and physical abuse of all kinds, corporal punishment, torture, exploitation, violence and degrading treatment has been recognised in the Charter.[25]

Right to Equality  :

In line with the constitutional mandate of equality, the 2001 Charter, also recognises that all children are treated equally without discrimination on grounds of the child’s or its parents’

or legal guardian’s race, colour, caste, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, birth, political status, or any other consideration.[26]

In Gaurav Jain v Union of India[27], the Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its Registry.

Right to Participation:

A nation is democratic to the extent that its citizens are involved. The confidence and competence to be involved is gradually acquired through practice. It is for this reason that there should be gradually increasing opportunities for children to participate in any aspiring democracy. According to the UN Convention on Child Rights, Children have the right to participate in decision making and due weight should be given to their opinions, according to their opinions, according to the age and maturity.[28]

It might be argued that ‘participation’ in society begins from the moment a child enters the world and discovers the extent to which he/she is able to influence events by cries or movements. Young people’s participation is a complex issue which varies not only with a child’s developing motivations and capacities, but also according to the particular family and cultural context. In cultures where adults themselves have little opportunity to influence community decisions, young people can become the initiating force for change. An example is the Sarvodaya Movement in Sri Lanka where, in many villages children are the key to the development of community participation. Early childhood schoolteacher’s first change how the children participate and subsequently extend this to the adult population. It is important that all young people have the opportunity to learn to participate in programmes which directly affect their lives. This is especially so for disadvantaged children for through participation with others such children learn that to struggle against discrimination and repression and to fight for their equal rights in solidarity with others is itself a fundamental democratic right. Children need to learn that with the rights of citizenship come responsibilities. In order to learn these responsibilities children need to engage in collaborative activities with other persons including those who are older and more experienced than themselves. It is for this reason that children’s participation projects is so important. While much of the Convention emphasizes the legal protection of the child and the child’s ability to speak for him in legal matters, Articles 12 and 13 go well beyond this.

Article 12 of the Convention makes a strong, though very general, call for children’s participation:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

It goes on to argue in Article 13 that:

The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice. [29]

There is growing support for children’s rights. For those whom UNICEF calls ‘children in especially difficult circumstances’ this is leading to some radical departures from past cultural norms.. But the larger solution to improving children’s lives must involve families and communities: they must be supported to do what they have traditionally done – to care for their children in a stable manner consistent with their culture. Simultaneously, families need to be encouraged to open up traditional practices to the greater involvement of their children as part of a general move towards creating a more democratic society, with greater opportunities and equal rights for all.

Landmark Cases :

From the Seventh Five-Year Plan onwards, the judiciary and the Supreme Court too have played an active role in upholding the rights of the child. Some of the most important examples of social action litigation for children are the following cases, each of which has been a landmark in the process of ensuring children’s rights:

1. a) LaxmikantPandey vs. Union of India [AIR (1984) SC 469, AIR (1986) SC 276, AIR (1987) SC 232] on Adoption of Children :The Hon’ble Supreme Court of India in a landmark case of LaxmikantPandey Vs. Union of India [AIR1984 SC469] laid down few doctrine governing the rules for Inter-Country adoption. The case was instituted on the basis of a letter addressed to the court by a lawyer, LaxmikantPandey alleging that social organisations and voluntary agencies engaging in the work of offering Indian children to foreign parents are indulged in malpractices.[30]

(b) ShielaBarse vs. Union of India [AIR (1986) SC 1883, AIR (1988) SC 2211] on Trafficking of Children : On 12th July, 1986 this Court issued various directions in regard to the physically and mentally retarded children as also abandoned or destitute children who are lodged in various jails in the country for ‘safe custody’. Giving further directions,

So far as a child-accused of an offence punishable with imprisonment of not more than 7 years is concerned, a period of 3 months from the date of filing of the complaint or lodging of the First Information Report is the maximum time permissible for investigation and a period of 6 months from the filing of the charge sheet as a reasonable period within which the trial of the child must be completed. If that is not done, the prosecution against the child would be liable to be quashed. Every State Government shall give effect to this principle or norm in so far as any future cases are concerned.[31]

(c) M.C. Mehta vs. State of Tamil Nadu [JT 1990 SC 263] on Problem of Child Labour : On the issue of child labour, The Court held that Articles 24, 39(e) and 9(f), 41 and 47 obligated the State to abolish child labour while ensuring healthy development of the child. Under Article 32 the Government of India is required to take legislative, administrative, social and educational measures to ensure protection of the child from hazardous exploitation and its healthy development. In the domestic sphere, the Court held that there are several pieces of legislation such as the Child Labour (Prohibition and Regulation) Act, 1986 (the Act) that protect children from exploitation. However, the Court took note of the fact that poverty compels a family to push their child into hazardous employment. The Court held that it was thus necessary to fulfil the legislative intent behind the Act to ensure the healthy development of a child.[32]

 (d) Vishal Jeet vs. Union of India [1990 (3) SCC 318] on Problem of Child Prostitution : The petition brought out the fact that poor parents on account of acute poverty were selling their children and young girls hoping that their children would be engaged only in household duties or manual labour. However, pimps – brokers – keepers either purchase or kidnap them by deceitful means and unjustly and forcibly inveigle them into ‘flesh trade’. 0TheSC issued the following directions inter alia to the State Governments and Union Territories

1. Direct concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution.
2. Take steps in providing adequate and rehabilitative homes.
3. Set up separate Advisory Committee consisting of relevant government officials, sociologists, criminologists, members of the women/ child welfare/ voluntary social organizations to make suggestions for eradicating child prostitution; and measures for care, protection, treatment, development and rehabilitation of victims.[33]

Unni Krishnan vs. State of Andhra Pradesh [1993 (1) SC 645] on Education of Children:

The case involved a challenge by certain private professional educational facilities to the constitutionality of state laws regulating capitation fees charged by such institutions.
The Supreme Court held that the right to basic education is implied by the fundamental right to life (Article 21) when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavor to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14.[34]

(f) Gaurav Jain vs. Union of India [1997 (8) SCC 114] on Problems of Prostitution and Children forced into Prostitution :

This writ petition has been filed pleading for separate schools and hostels for the children of prostitutes. On behalf of respondents, it was contended that since they are in fact unwanted children of prostitutes it is in the interest of such children and the society at large that they are segregated from their mothers and be allowed to blend with others and become part of the society.

(g) Gita Hariharan vs. Reserve Bank of India [(1999) 2 SC 228] on Guardianship:

In GithaHariharanvs Reserve Bank of India, which challenged the constitutional validity of Section 6, the Supreme Court deemed both mother and father as natural guardians of a child.

The apex court also ruled that ‘after’ cannot be given a literal interpretation, and the child’s welfare has precedence in determining the guardian of a child.

“The father by reason of a dominant personality cannot be ascribed to have a favoured right over the mother in the matter of guardianship since both fall within the same category,” the court said in 1999.

(h) Centre for Enquiry into Health and Allied Themes (CEHAT) & Others vs. Union of India & Others [2000 SC 301]

Besides the above cited landmark judgments, few other important cases regarding free and compulsory education in India are Miss Mohini Jain vs State of Karnataka, Nitte Education Trust vs Union of India, Krishnagiri District Private vs State of Tamil Nadu, A Civil Rights vsGovt. of NCT of Delhi, Adam B. ChakivsMr.ParasKuhad, M. Veera Siva Nagi Reddy vs Osmania University, O.A. Joseph vs Chairman, Board of Governors, Vinay N. Pandyavs Union of India, Maharshi Mahesh Jogivs State of MP etc.

A great legal breakthrough was achieved in 1992 when the Supreme Court of India held in Mohini Jain’s[35], that the ‘right to education’ is connected to fundamental rights enshrined under Part III of the Constitution” and that ‘every citizen has a right to education under the Constitution’. Another historic judgment by the Supreme Court of India in 1993 radically transformed the status of Article 45. In its Unnikrishnan Judgment (1993), the Supreme Court ruled that Article 45 in Part IV has to be read in ‘harmonious construction’ with Article 21 (Right to Life) in Part III of the Constitution, as Right to Life loses its significance without education.[36]

LEGISLATIVE SUPPORT TO THE CHILD RIGHTS

There are a host of other legislations, which guarantee to a substantial extent the rights and entitlements as provided in the Constitution and in the UN CRC:

The Child Marriage Restraint Act, 1929

The Children (Pledging of Labour) Act, 1933

The Factories Act, 1948

The Apprentices Act, 1961

The Women’s and Children’s Institutions (Licensing) Act, 1956

The Mine’s Amendment Act, 1983

The Child Labour (Prohibition and Regulation) Act, 1986

The Immoral Traffic (Prevention) Act, 1986

The Guardian and Wards Act, 1890

The Hindu Minority and Guardianship Act, 1956

The Hindu Adoption and Maintenance Act, 1956

The Orphanages and Other Charitable Homes (Supervision And Control) Act, 1960

The Probation of Offenders Act, 1958

The Reformatory Schools Act, 1897

The Young Persons Harmful Publications Act, 1956

The Infant Milks Substitutes, Feeding Bottles and Infant Foods (Regulation of

Production, Supply and Distribution Act, 1992

The Prenatal Diagnostic Technique (Regulation, Prevention and Misuse) Act, 1994

The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995

The Juvenile Justice Act, 2000  [37]

The Protection of Children from Sexual Offences (POCSO) Act, 2012: The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.

 The said Act defines “a child as any person below eighteen years of age”, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances. The Act also casts the police in the role of child protectors during the investigative process. Thus, the police workforce receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child. The police are also obligated to bring the matter to the attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may then proceed where required to make further arrangements for the safety and security of the child. The said Act makes provisions for the medical examination of the child in a manner to cause as little suffering as possible. The said Act provides for Special Courts that conduct the trial in-camera and without revealing the identity of the child, in a child-friendly manner.Further, by providing the child-friendly judicial process, they said Act encourages children who have been victims of sexual abuse to report the offence and seek remedy for their suffering, as well as to obtain support in overcoming their suffering.The said Act is to be implemented with the active participation of the State Governments. Under Section 39 of the said Act, the State Government is required to frame course of action for the use of persons including non-governmental organisations, professionals and experts or persons trained in and having knowledge of psychology, social work, physical health, mental health and child development to assist the child at the trial and pre-trial stage.

The responsibility of supporting children who have been sexually abused should be embraced by the whole community, but it is the professionals that work in this field who play an important role in enabling the healing process. These guidelines are therefore aimed at various professionals involved in providing services to the child and other affected persons including his/her family. Their objective is to foster better response mechanisms involving coordination amongst these professionals, so as to result in the evolution of a multi-sectoral, multi-disciplinary approach that will go a long way in achieving the objectives of the POCSO Act, 2012.[38]

 It is notice worthy that among these legislations 4 belong to the pre independence era, long before the international community started recognizing the rights of the child. Obviously these legislations are meant for the benefit of children but are divorced with the rights approach. At best they can seem to be invested with protectionist welfare approach. Even in the legislations carried out after India became a signatory to the CRC, the welfare approach is all-pervasive. They aim at welfare of the children rather than according them any justifiable rights. [39]

Children being our supreme asset, nothing concerning their survival, development, protection and participation should be ignored or sidelined. However, in a country with a large number of floating population, vast disparities, social conflict and turmoil, the challenge to attend to all their rights is even greater. The Government of India’s 2005 National Plan of Action for Children has identified 12 key areas keeping in mind priorities that require utmost and sustained attention in terms of outreach, interventions and resource allocation. These are:

• Reducing Maternal Mortality Rate.
• Reducing malnutrition among children.
• Achieving 100% civil registration of births.
• Universalization of early childhood care and development and quality education for all children.
• Complete abolition of female foeticide, female infanticide and child marriage as well as ensuring the survival, development and protection of the girl child.
• Improving water and sanitation coverage both in rural and urban areas.
• Addressing and upholding the rights of children in difficult circumstances.
• Securing for all children all legal and social protection from all kinds of abuse, exploitation and neglect. • Complete abolition of child labour with the aim of progressively eliminating all forms of economic exploitation of children.
• Monitoring, review and reform of policies, programmes and laws to ensure protection of children’s interests and rights.
• Ensuring child participation and choice in matters and decisions affecting their lives.

The term ‘children in conflict with law’ refers to anyone under the age of 18 who comes into contact with the justice system as a result of being suspected or accused of committing an offence. Most children in conflict with law are those who have committed petty crimes or such minor offences as vagrancy, truancy, begging or alcohol abuse. Many are trafficked girls who are being sexually exploited for commercial reasons whereby they are picked-up by the police and put behind bars. There are also some children who have been caught for their criminal behaviour on account of being used or coerced by adults. Many a times, prejudice related to social and economic status may also bring a child in conflict with the law even when no crime has been committed, or result in harsh treatment by law enforcement officials. Studies undertaken across the country, by and large, have shown that children who come in conflict with law are often treated at par with adult criminals. This kind of a situation often harms than improves a child’s chances for reintegration into the society. These children too require focused attention of all stakeholders.

Last but not the least, there is need to increase the budgetary allocations with regard to children and also ensure that the entire amount allocated is spent on the child population.

Many countries around the world have children’s rights ombuds-people or children’s commissioners whose official, governmental duty is to represent the interests of the public by investigating and addressing complaints reported by individual citizens regarding children’s rights. Children’s ombuds -people can also work for a corporation, a newspaper, an NGO, or even for the general public.

 German law: A report filed by the President of the INGO Conference of the Council of Europe, AnneliseOeschger finds that children and their parents are subject to United Nations, European Union and UNICEF human rights violations. Of particular concern is the German (and Austrian) agency, Jugendamt (German: Youth office) that often unfairly allows for unchecked government control of the parent-child relationship, which have resulted in harm including torture, degrading, cruel treatment and has led to children’s death. The problem is complicated by the nearly “unlimited power” of the Jugendamt officers, with no processes to review or resolve inappropriate or harmful treatment. By German law, Jugendamt officers are protected against prosecution. Jugendamt (JA) officers span of control is seen in cases that go to family court where experts testimony may be overturned by lesser educated or experienced JA officers; In more than 90% of the cases the JA officer’s recommendation is accepted by family court. Officers have also disregarded family court decisions, such as when to return children to their parents, without repercussions. Germany has not recognized related child-welfare decisions made by the European Parliamentary Court that have sought to protect or resolve children and parental rights violations.

Child Helpline Service

A phone number that spells hope for many children across India, CHILDLINE is India’s first 24-hour, free, emergency phone service for children in need of aid and assistance. Whether you are a concerned adult or a child, you can dial 1098, the toll free number to access  services.

CHILDLINE is a dais bringing together the Ministry of Women & Child Development, Government of India, Department of Telecommunications, street and community youth, non-profit organizations, academic institutions, the corporate sector and concerned individuals.[40]

Conclusion

“I am the child. All the world waits for my coming. All the earth watches with interest to see what I shall become. Civilization hangs in the balance. For what I am, the world of tomorrow will be. I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail. Give me, I beg you, that I may be a blessing to the world”.     –      Mamie Gene Cole

Children constitute the nation’s valuable human resources. The future well being of the nation depends on how its children grow and develop. The great poet Milton said “Child Shows the man as morning shows the day”.  So it is the duty of the society to look after every child with a view to assuring full development of its personality. Children are the future custodians and torch bearers of the Society: they are the messengers of our knowledge, cultural heritage, ideologies and philosophies. Unfortunately millions of children are deprived of their childhood and right to education and thereby they are subjected to exploitation and abuse. CRY (Child Rights and You), Butterflies and Smile Foundation are some of the NGO’s which are contributing to Child Rights in India. To tackle the situation of Children in India some of the suggestions are as follows:

Constitutional Amendment: Art 24 of the Constitution should be amended as below:

“No child below the age of fourteen years shall be employed to work in any factory or   mine or engaged in any other employment”.

• The age of the child provided under Child Labour (Prohibition and Regulation) Act, 1986 i.e., 14 years should be enhanced to 18 years so as to bring it on par with United Nations Convention on the Rights of the Child, 1989.
• Every State Government shall frame Rules under the Right to Education Act, 2009 immediately for the proper implementation of the provisions of the Act.
• The Judiciary should be more sensitive in dealing with child rights cases. The general rule of ‘benefit of doubt’ cannot be given to the offending party. When guilt is proved, offending party should be punished with imprisonment and not with fine. Further there is a need to increase the conviction rate.
• Government should encourage the NGOs for promoting child rights by granting proper budget periodically and accountability should be fixed on NGOs to ensure that the funds are utilized for the purpose for which it is given.
• To deal with apathy on the part of the law enforcing agencies in the discharge of their duties, there is need to conduct periodical orientation and training programmes to sensitize them adequately.
• It is suggested to give more focus on implementation and enforcement of child rights legislations and other laws meant for the protection of the children and making children participate in the decision making of the laws by taking their suggestions and giving them value as finally they are the ultimate bearers of the Laws.

[1]Hon’bleMr. Justice V.R. Krishnaiyer, “Random Reflections” at page-27.

[2]Mr Justice Bhagwati child basic rights.op. cit. p. 5

[3]Narendar Kumar, “Constitutional Law of India”, Edition-1997, Central Law Agency, pg. 67

[4]Dr. N. L. Mitra, “Juvenile Justice Law”, (1998)

[5]S.K.Mangal, “Educating Exceptional Children-An Introduction to Special Education”,(2007)

[6]M. Subramaniam, G.Lisi, “Child Rights: Everybody talks about and vet does not understand”, Human Rights Year Book (2012-13)

[7] JUSTICE P. SATHASIVAM, CHILD SEXUAL ABUSE: THE ROAD FORWARD,(2011)

[8] GARGI ROHI, ANSHITA CHAUHAN, PADMINI BARUAH ET. Al., FREQUENTLY ASKED QUESTIONS ON LAW, p. 101, (Vansh Gupta, ManasaSundaraman&BasavanagoudaPatil, ed.2014, The Legal Services Clinic National Law School of India University), 2014

[9] JUSTICE VR KRISHNA IYER & JUSTICE DR AR LAKSHMANAN, CONCISE LAW DICTIONARY, (Universal Law, 2014)

[10]See, M.P. Jain, Indian Constitutional Law, Vol.1. 5th edn., Wadhwa& Co., Nagpur, 2003 at p. 1060

[11]AIR 1988 SC 1782

[12]Inserted by the Constitution 86th Amendment, 2002

[13]AIR 1993 SC 2178

[14]AIR 1984 SC 177

[15]In line with the constitutional provision many Acts provide for the prohibition of employment of children. For e.g., The Indian Factories Act,  Mines Act,  The Merchant Shipping Act, 1958,  The Motor Transport Corporation Act, 1951,  The Plantation labour Act, 1951,  The Bidi and Cigar Workers (Condition of Employment) Act, 1966

[16]INDIA.CONST. art. 38

[17]In Unnikrishnan v. State of A.P.,(1993) 1 SCC 645 , the directive principles has been raised to the level of fundamental rights and it was held that the right to education flows directly from ‘right to life’.

[18]NwosuAnulika Princess ROI,A CHILD’S RIGHT TO ADEQUATE NUTRITION,http://nafdac.gov.ng/index.php/regulation/104-products-articles/food/science-and-research/219-a-child-s-right-to-adequate-nu

[19]Joint Report on India – National Coalition for Education and World Vision India, The Right to Education, Universal Periodic Review, 13th session, 2012

[20] Miss. Mohini Jain v. State of Karnataka and others, AIR 1992 SC 1858

[21]Unnikrishnan, J.P. and Other v. State of Andhra Pradesh and others, AIR 1993 SC 2178.

[22]INDIA.CONST. art. 8

[23]Labourers Working on Salal Hydro Project v. State of Jammu & Kashmir and others, 1983 (II) SCC 181.

[24]M.C. Mehta v. State of Tamil Nadu (1991) 1 SCC 283

[25] Draft National Policy and Charter for Children, 2001

[26]INDIA.CONST. art. 13

[27] (1997) 8 SCC 114; AIR 1997 SC 3021

[28] DR. PRATEEP ROY, SITUATION OF CHILDREN AND CHILD RIGHTS IN INDIA, A Desk Review (Butterflies), 2015

[29]GarisonLansdown, UN Convention on Child Rights UN Convention on Child Rights (2001)

[30]LaxmikantPandey vs. Union of India [AIR (1984) SC 469, AIR (1986) SC 276, AIR (1987) SC 232], http://www.legalserviceindia.com/issues/topic1439-laxmikant-pandey-vs-union-of-india-sc-guidelines-on-adoption-in-india.html

[31]SheelaBarse&Orsvs Union Of India &Ors on 13 August, 1986, Supreme Court of India http://www.oscpcr.nic.in/sites/default/files/Sheela_Barse_%26_Ors_vs_Union_Of_India_%26_Ors_on_13_August,_1986.PDF

[32]M.C. Mehta vs. State of Tamil Nadu , http://www.legalserviceindia.com/article/l265-M.C.-Mehta-v.-Union-of-India.html, visited on 10 Nov 2017

[33]Vishal Jeet vs. Union of India [1990 (3) SCC 318] ,  https://www.unodc.org/cld/case-law-doc/traffickingpersonscrimetype/ind/1990/vishal_jeet_v._union_of_india.html , visited on 10 Nov 2017

[34]Unni Krishnan, J.P. &Ors.v. State of Andhra Pradesh &Ors. Cited as: 1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, https://www.escr-net.org/caselaw/2006/unni-krishnan-jp-ors-v-state-andhra-pradesh-ors-cited-1993-air-217-1993-scr-1-594-1993 , visited on 10 Nov 2017

[35]Miss. Mohini Jain v. State of Karnataka and others, AIR 1992 SC 1858

[36]CHAPTER IV, LANDMARK JUDGEMENTS ON RTE: AN ANALYSIS, www.shodhganga.inflibnet.ac.in, visited on 8 Nov 2017

[37]India Country Report to the UN CRC, 1997

[38]MINISTRY OF WOMEN AND CHILD DEVELOPMENT, Model Guidelines under Section 39 of  The Protection of Children from Sexual Offences Act, 2012 , (2013)

[39] PAIRVI (Public Advocacy Initiatives For The Rights And Values In India), STATE OF CHILD RIGHTS  IN INDIA (2001)

[40]CHILDLINE 1098 SERVICE – 1098 Tele Helpline Model, http://www.childlineindia.org.in/1098/b1a-telehelpline.htm, visited on 10 Nov 2017