LEGAL FRAMEWORK OF PROTECTION OF CHILD RIGHTS IN INDIA

THIS ARTICLE WAS WRITTEN BY BREGITHA PG, A STUDENT OF NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES.

INTRODUCTION

Children are considered as an important national asset in every country even in India because they are next citizen of our country. For the smooth functioning of the country protection of the children are the first and foremost thing a country must do other than giving importance to any sort of developments. If a country to progress in its all means it need a good strength of children in their hands. Without nurturing them a country cannot be developed. A country’s future is vested in the hands of the children. The whole countries prosper can be understood by analysing the way they treat their children and how they develop and mature. Hence the protection of children has become the main objective of any society or nation. Child protection has become the goal of every ruling government, considering the problems faced the children and their challenges. Daily through are social media and other instances we see the exploitation faced by children in every sections of the society by means of sexual molestation, child marriage, child battering, underfeeding, child prostitution, child pornography, child labour and so on which are drastically increasing day by day. These plights indirectly highlights the failure of our own societies in protection of our future generation.

In this research paper I would like analyse different atrocities faced by the children through the case laws, local laws and suggesting different rights of children in which I will be giving more focus on our country India.

Even though social justice and human violations campaigns are becoming more and more relevant, the conditions of children are continuing as similar as before without any sort of change or progress. They remain as the disadvantaged section of minorities in the society. Hence the question of the protection of children has become the vibrant issues of discussion in the new millennium. Children are socially, physically and mentally a defenceless section so it impossible for them to strive hard to get there rights .It is the duty of government and nation to fulfil their rights. If the protection of the children are pushing to the back without taking any action it not only affects the whole value systems but it affects the socio economic needs of the country. No doubt that the future of the humanity is in the hands of our present children. There is an old saying that “present children are the tomorrows citizens of the country”, we should not forget that from our minds in terms of child protection and there rights.

DEFINITION OF CHILD

[1]Children are the first call on agenda of human resource development- not only because young children are the most vulnerable, but because the foundation for lifelong learning and human development is laid in these crucial early years. The term child is not defined in the Indian constitution. According to the Article 1 United Nations Conventions on the Rights of the Child 1989, “A child means every human being below the age of eighteen years unless the applicable to the child majority is attained .There are number of legislations in India that defines the term child according to the purposes.[2]Under the Indian Majority Act,1875 the age of majority is eighteen years & in case of a minor for whose person & property a guardian is appointed or whose property is under the supervision of the Court of Wards the age of majority twenty-one years.[3] Under the Child Labour (Prohibition and Regulations) Act, 1986, child means a person who has not completed his fourteenth year of age.[4] Under the Child Marriage Restraint Act, 1926, child means a person who, if a male, has not completed twenty-one years of age and, if a female, has not completed eighteen years of age. Under Juvenile Justice (Care and Protection) Act, 2000, ‘Juvenile’ or ‘Child’ means a person who has not completed eighteenth year of age defined under section 2 sub section (13).[5] A child is defined in the United Nations Convention on the Rights of the Child (UNCRC) as a person under the age of 18 years.

The welfare of any community depends on the protection of the children under there roof. It is that “who holds the souls of the children holds the nation”. From this saying we understands of giving enough concerns to the child rights and its protection.[6] The physical and mental health of a nation is determined largely in the manner in which it is shaped in early stages. Justice V.R. Krishna Iyer says that it is our obligation to the generation by opening up all opportunities for every child to unfold its personality and rise to its full stature physical, moral, mental and spiritual and it is the birth right of every child that cries for justice from the world as a whole.

MAJOR CHILD RIGHTS ISSUE ANALYSING THROUGH THE CONSTITUTIONAL RELEVANT CASE LAWS AND PROVISIONS

Children need to get proper care and support from all their surroundings especially from their parents. If the child is either lonely, orphan, child labour, bonded labour, a street child, physically or mentally abused children then if they feel society where they are, is not safe and secure they may very vulnerable to crimes which are pretended against them like child labour, child marriage, gender inequality, child trafficking, illiteracy, poverty, child homicide especially girl children, malnutrition and so on. Violation against the child rights are hooked up with the social wrongs. Hence the government of India added several articles in the constitution of India, several legislatures and through the judicial judgements for securing children.

Children are facing threat even from the mother’s womb. Hence in order to protect them the government has passed various legislations and laws.one among them are :

The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act 1992

This Act regulates the production, supply and distribution of infant milk substitutes, feeding bottles & infant foods with a view to the protection & promotion of breastfeeding & ensuring the proper use of infant foods & other incidental matters.

CHILD LABOUR

Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. [7]The factories Act, 1948 prohibits the employment of children below 14 years of age in factory.[8]Through judicial response in the case, Indian activist, plaintiff MC Mehta sued the state of Tamil Nadu to improve the working conditions for children and to provide children rescued from hazardous labour with an education. The honourable Supreme Court issued a landmark ruling that the Indian constitution (Article 24) requires the state to endeavour to provide a free, compulsory education for children. The court found that children under the age of 14 could not be engaged in hazardous employment, and ordered the government to establish and maintain a child labour rehabilitation welfare fund. Through Article 23 also the children right is being protected from being trafficked and forced into bonded labour.

In India, this is sorely lacking. The children are working in the factories even under the age of 14 in the hazardous employment due to the bondage or the forced labour. They are subjected to servitude. With Article 24 there is also prevailing a Bonded Labour System (abolition) Act, 1976 in order prevent the any sort of human forced labour in which children is also a part of it.[9]All of the labour laws are routinely flouted, and with virtually no risk of punishment to the offender. Due the increasing corruption or indifference in the social strata of the society the laws are not properly implemented by the respective authority who is vested with the duty to guard the constitution. Approximately, fifteen million children work as bonded labourers in India.

[10]According to the mines Act,1952 the Adolescent who has completed the age of sixteen years is allowed to work only if he has a medical certificate of fitness for work and this Certificate is valid for twelve months only.

“Employment of child below the age 14 years in construction works is violation of Article of Article 24” this judgement was made by Justice P.N. Bhagawathi in the famous case of Labourers Working on Salal Hydro-Project v. State of Jammu & Kashmir

CHILD ABUSE

The framers of our constitution were well known about the fact that the development of nation can only be achieved through the development of the children.

Through the Article 39(e) and 39(f) of the Indian constitution the children are protected for leading a healthy environment where they live and the prevented from all sorts of exploitations.

[11] Article 39(e) provides that , in particular, direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

Article 39(f) provides that, in particular, direct its policy towards securing 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.

[12]Article 21 of the Indian constitution guarantees the right to life and liberty in which the right further lays down the right to eat, sleep, work when one pleases, right to be free from inhuman and degrading treatment, the right to integrity and dignity of the person, the right to te benefits of protective labour legislation and the right to speedy justice. But the practise of bonded labour and the exploitation towards the children violated all of these constitutionally mandated rights.

CHILDHOOD PROBLEMS

Childhood the period were children is needed great care and affection. If they are not natured with enough care they want, they is a higher probability that the children may take up wrong path by the influence of the peer pressure and other sorts of social problems. In order to break that shackle, the apex court of India recently in a case ruled that the child has the right to get the affection of both the parents even if they are divorced. Now on its not the duty of mother to bring up the child. The family court should grant the visitation rights in such a manner a child is not deprived of the love and care of the both parents.[13]In the Vishal Jeet verses union of India adjudication the supreme court has issued direction to the state government to setting up rehabilitate homes for children found begging in streets and also the minor girls pushed into ‘flesh trade’ to protective homes.”

According to the United Nations Children Fund has released the state of the world’s children report for 2019.The global hunger index was released recently and ranked 102 out of 117 countries which is behind the rank of our neighbouring countries like Nepal, Bangladesh and so on. Here we get to know the plight of our country. According to the reported it is stated. At least 1 in 2 children suffer from hidden hunger. Indian children 35% of the children suffer from stunting, 33% suffer from underweight. Among the south Asian countries India fares the worst 54% on the prevalence of children under five who are either stunted, wasted or overweight.so its high time we need take necessary steps to cop up with this issue. Poverty is the base for majority of the crimes done by the children.

GIRL CHILD

Even the condition of girl child is worse than the male child. The girl child is the most vulnerable member of the society in India. The life chart of a disadvantaged girl child reflects strong elements of discrimination at every step of her life. First being her survival on account of high incidence of foeticide. Therefore the government has the landmark Act on 1994.

The Pre-Natal Diagnostic Technique (Regulation and Prevention of Misuse) Act 1994
This Act provides for the regulations of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic or chromosomal abnormalities or certain congenital malformation or sex-linked disorders & for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide.

[14]Other than that girl faces other type of discrimination where she has little or no access to education, nutrition, health or other essential needs. She is highly vulnerable to abuse, domestic labour, trafficking for commercial sexual exploitation, child marriage, early motherhood, frequent pregnancy and delivery etc. This perception arises in the society towards the girl child mainly because that the girl child is diversion of limited funds and facilities towards the male child in the family on account of the patriarchal familial hierarchy prevailing. Hence the girl child is viewed as a burden and not an asset.

In order to bring down the scenario under article 17 in the Indian constitution discrimination is banned. Not only discrimination, untouchability has also cut off from the society through these articles. National girl child day is observed nationally on every year January 24 in order spread gender sensitization.

Much of India’s progress has been the result of its social welfare programmes that have enabled more girls to stay in school and increased access to sexual and reproductive health services. India has worked to curb child marriage through legislation such as the Prohibition of Child Marriage Act, 2006.Community-based interventions such as empowerment counselling, sexual and reproductive health information, vocational training and life-skills development for girls have also been important factors. Schemes such as conditional cash transfers to educate the girl child have also helped reduce child marriage. Schemes such as the Rajiv Gandhi Scheme for Empowerment of Adolescent Girls, Kishore Shakti Yojana and Nutrition Programme for Adolescent Girls have led to the improvement in the health of Adolescent Girls.

CHILD RIGHTS

[15]According to the Article 45 of the Indian constitution it provides that the state shall endeavour to provide early childhood care and education for all children until they complete the age of six. It is the right of the children to get education from without any discrimination of religion, race, caste, sex, place of birth or any of them. Since the children are the disadvantaged sections of the society they can be treated as the minorities. Hence we should protect the interest of the minorities under article 29 of the constitution. They are the weaker section of the society hence they should not deny any sort of the social justice or any sort of exploitation. They are also humans protected under the human rights. It is the duty of each and every individual to protect the weaker section under article 46 of the Indian constitution.

Right to Education (RTE) Act, 2009

Free and compulsory education to all children of India in the 6 to 14 age group. No child shall be held back, expelled or required to pass a board examination until the completion of elementary education. If a child above 6 years of age has not been admitted in any school or could not complete his or her elementary education, then he or she shall be admitted in a class appropriate to his or her age. Provided further that a child so admitted to elementary education shall be entitled to free education till the completion of elementary education even after 14 years.

SEXUAL EXPLOITATION OF CHILDREN

Sexual harassment and abuses against children especially girl children are becoming a daily news in the media. Not only they are misused but they are even raped and murdered. Recent valayar case, unavow case, Nirbhaya case([16]Mukesh verses state (NCT of Delhi) etc. are the best examples. To decrease the number of crimes against the children the government has introduced certain legislations through various judicial responses. Recently the Protection of Children from Sexual Offences (Amendment) Bill (POSCO), 2019 was passed by both Houses of Parliament with an objective of stopping the rampant sexual abuse of children. It seeks to provide more stringent punishment, including death penalty, for sexual crimes against children. The present bill is welcome in certain respects as it specifically defines what ‘child pornography’ is; ‘using a child for pornographic purposes’ and for ‘possessing or storing pornography involving a child’ is punishable. It has also widened the ambit of ‘aggravated sexual assault’. According to the National Crime Records Bureau (NCRB) data of 2016, the conviction rate in POCSO cases is 29.6% while pendency is as high as 89%. The prescribed time period of two months for trial in such cases is hardly complied with. The bill seeks for the death penalty for aggravated sexual assault on children to create deterrent effect. It refers to the judgments of the Supreme Court in [17]Machhi Singh verses state of Punjab (1983) and [18]Devendar pal Singh verses state (NCT of Delhi)(2002) in which the court had held that the death penalty can be awarded only in rarest of rare cases. The amendment is expected to discourage the trend of child sexual abuse by acting as a deterrent due to strong penal provisions incorporated in the Act. It intends to protect the interest of vulnerable children in times of distress and ensures their safety and dignity. The amendment is aimed to establish clarity regarding the aspects of child abuse and punishment thereof. It is gender-neutral and thus looks into the sexual assault of both minor boys and girls.

JUVENILE JUSTICE

We see lot of crimes which are done by the children who are not attained the age of majority. They are treated specially giving due consideration and care as its name implies the juvenile justice (care and protection of children) Act, 2015.[19]This an Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established under this Act.

In the famous landmark case Gaurav Jain vs. Union of India honourable Supreme Court laid down a rule stating that to rehabilitate children and child prostitutes after conducting in depth study of matter .Furthermore juvenile homes should be used for rehabilitating child prostitutes.

POLICIES OF THE GOVERNMENT REGARDING CHILDREN

The government has made several policies for the children in regard to the physical, mental and social development. India is the only country which have the written policy on children. Children in the age group 0-18 years constitute 44% of the population of India. Children are the future resource of the country. In India the ministry of women and child development and protection of children has step up with several policies and schemes for the overall development of the children in the territory of India.

National policy for children 1974

All the children shall be covered under a comprehensive health programme. All children shall be ensured equality of opportunity. To provide non-formal education. Special attention to be taken towards the physically challenged, mentally retarded children

National Policy on Education 1986

This was second policy on education; the first policy of 1968 was revised by this policy. This policy was regarded as a landmark one. This policy gave highest importance on the Universal Primary Education. It also gave importance to early childhood care & education. The Operation Black Board & Sarva Siksha Abhiyan became very popular all over the country.

Integrated child development services scheme

[20]The integrated child development services scheme was launched in 1975 to improve the nutritional and health status of children in the age group 0-6 years, to reduce the incidence of mortality, morbidity, malnutrition and school dropout. This policy provided services like immunization, health check-ups, and supplementary nutrition and so on.

CONCLUSION

India is the home to the largest child population in the world. Our countries future depends upon how our children grown up and their personality. In a hypothetical situation we may think of a generation full doing offences, becoming criminals and causing threat to the nation then what will be the condition of our country. Children are the custodian and guardian of the nation. The development and prosperity of the nation depends on the hands of our hands.

Unfortunately, the truth is that millions of children are deprived of their childhood and right to education and thereby they are subjected to exploitation and abuse. Indian government has failed to protect its most vulnerable children.

It’s high time to take necessary steps in order to save our mother land. Children are the future of the nation so if neglected it may bring dysenteric state of poverty, exploitation and so on in a manner which we cannot even imagine. So the child protection lays on each and every ones shoulders. We are responsible for our acts and we the masters of our destiny.

Firstly, State need to be more serious when concerning the issues of the children and take necessary steps to avoid that in the future. Minimum twice in a year the children issues statistics should be taken by each state and analyse the issue with the experts in the body. Constitute a body for proper analysing the child related problems only.

Secondly, the judiciary should be more sensitive in dealing with child related cases. The judgement or justice should be fair and accurate without any intervention from business man, politicians or any other powerful should not reverse the case for the judge who is hearing these cases should be a person who corrupt less and an experienced person.

“Justice delayed is justice denied”. Special courts only for child right violation to be set in every state for providing speedy justice to the children. The punishments of offences related to children should be changed to the draconian forms of laws and punishments such that the amount of the offences may decrease in the future.

Government should provide adequate funds for the purpose of the development of children to the non-governmental organisations and other child protection agency for the smooth and smarter functioning. Like these measures we can improve the conditions of the children through using our constitution as a weapon to fight against all the illegal practices prevailing.

[21]“The development of children is the first priority on the country’s development agenda, not because they are the most vulnerable, but because they are our supreme assets and also the future human resources of the country”.

[1] Dr. Shweta., Child rights in India law, policy and practice. Arise publishers and distributors, New delhi.,Pg.no.120.

[2]  “The majority act, 1875 – India Code.”.

[3] “India. Child Labour- Prohibition and Regulation Act, 1986 – ILO.”

[4] “The Child Marriage Restraint Act, 1929 – Indian Kanoon.”

[5]  “UNHCR – Children.”

[7]  “Factories Act, 1948 (India) – Wikipedia.”

[8] (1996) 6 SCC 756

[9] Dr. Shweta.,Child rights in India law, policy and practice., Arise publishers and distributors., New delhi.,Pg.no.5

[10] “The 1842 Mines Act – History Home.”

[11] “Article 39 – Fighting for children’s rights in institutional settings.”.

[12] “Article 21 – Claiming Human Rights.”

[13] (1998) 5 SCC 400

[14] Dr.shweta.,Child rights in India law, policy and practice., Arise publishers and distributors., New delhi.,Pg.no.150.

[15]  “Article 45 – NYC.gov.”

[16] (2017) 2 SCC (cri) 673

[17] AIR 1983 SC 957

[18] (2002) 5 SCC 234

[19] The juvenile justice (care and protection of children) Act,2015 retrieved from india code

[20] Dr.shweta., Child rights in India law ,policy and practice., Arise publishers and distributors., New delhi.,Pg.no.121.

[21] Dr.shweta., Child rights in India law, policy and practice., Arise publishers and distributors., New delhi.,Pg.no.120.