This post has been written by Aditi Singh, a first year law student from Hidayatullah National Law University, Raipur.
A child means every human being below the age of eighteen years unless, under the law applicable to the child, the age of majority is attained earlier.The most basic needs of the children are referred to as rights. Children and young people have the same general human rights as adults and also specific rights that recognize their special needs. Children are neither the property of their parents nor are they helpless objects of charity. They are human beings and are the subject of their own rights. Children’s rights are human rights. Children must be treated with equality, respect and dignity, not because they are “the future” or the “adults of tomorrow”, but because they are human beings today. All humans are born inherent with fundamental freedoms and rights. Children must enjoy the same human rights as everybody else – from the right to freedom of expression to the right to privacy. This means all human rights laws apply equally to children and adults. However, children are afforded a low status in most societies. For example, in almost every country children under the age of 18 are denied political power because they cannot vote, and most countries allow parents to hit their children even though they would be prosecuted for assault if they hit an adult.
This means children have specific rights to help protect them from the threats, exclusions and discrimination they are vulnerable to. These rights are embodied in international law in the Convention on the Rights of the Children (CRC) and its Optional Protocols – one on the sale of children, child prostitution and child pornography; another on armed conflict; while another sets up an international complaints mechanism so cases of children’s rights abuse can be taken to the UN.
What is CRC ?
The Convention on the Rights of the Children (CRC) is a UN international treaty that sets out the basic human rights that all children everywhere are entitled to. It was drafted in 1989 and came into force in 1990. There are 54 articles in the CRC that spell out all the rights of all children, which is everyone aged 0-18. It is the most ratified (agreed to) of all the international human rights treaties. Every country in the world has ratified the CRC except the United States. It is a very important document because it makes it clear that children have human rights, individual identities, are in need of some protection and have voices that must be listened to and given due weight. It established a direct relationship between a child and the State, and where the rights and obligations lie in this relationship on issues like children’s right to health, freedom of expression, the right to be free from violence, the right to privacy and many more.
The provisions of the CRC have been categorised as:
- PART I (Article 1-41): It sets out the rights of children and obligations of governments. The rights can further be categorised as:
- Survival Rights: the right to life of child and access to basic necessities to existence such as adequate food, shelter, standard of living and medical requirements.
- Development Rights: the right to education, to practice the religion of own choice and cultural activities, freedom of thought and conscience, to play and leisure and to access to information
- Protection Rights: rights that protect children from abuses which may be consequential to several kinds of circumstances, such as children subject to procedures of criminal justice system, children in employment, children who are refugees, children who have undergone abuse or exploitation.
- Participation Rights: rights of children to participate in activities of the society, especially matters that may affect their life, to assemble peacefully and to join associations.
- PART II (Article 42-45): It contains provisions regarding implementation of the provisions of the CRC.
- PART III (Articles 46-54): It includes provisions for signing the convention by parties and rules and procedures thereafter for the purpose of ratification, enforceability, amendment, denouncement, etc. of the convention.
CRC AND INDIA
India, a country with about one-fifth of the world’s children, ratified the UNCRC, in 1992. In this moment of celebration of 30 years of UNCRC India has a lot that it can be proud of and Convention has played an important role in moving towards realization of rights of children.The convention has inspired India to enact a number of progressive legislations and formulate policies to address the pressing child rights issues. Some of the key legislations that have been enacted to protect rights of children include Right to protection of children against sexual offences 2012, Child Marriage Prohibition Act 2006 and The Right of Children to Free and Compulsory Education (RTE) Act, 2009.
The Commissions for Protection of Child Rights (CPCR) Act, 2005 was passed in 2005 to set up the National Commission for Protection of Child Rights (NCPCR) which was set up in March 2007. The mandate of Commission is “to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also in the UNCRC”.
India has also enacted a number of programmes and schemes to actualize the mandate of UNCRC and promote rights of children. Some of these schemes include Integrated Child Protection Scheme (ICPS) for protection of children, Sarva Shiksha Abhiyan, Kasturba Gandhi Swantantra/ BalikaVidyalaya, Rajiv Gandhi National Creche Scheme for the children of working mothersand many others.
CHILD RIGHTS AND INDIAN CONSTITUTION
Constitutional Guarantees that are meant specifically for children include:
- Right to free and compulsory elementary education for all children in the 6-14 year age group (Article 21 A)
- Right to be protected from any hazardous employment till the age of 14 years (Article 24)
- Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age or strength (Article 39(e))
- Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment (Article 39 (f))
- Right to early childhood care and education to all children until they complete the age of six years (Article 45)
Besides, Children also have rights as equal citizens of India, just as any other adult male or female:
- Right to equality (Article 14)
- Right against discrimination (Article 15)
- Right to personal liberty and due process of law (Article 21)
- Right to being protected from being trafficked and forced into bonded labour (Article 23)
- Right of minorities for protection of their interests (Article 29)
- Right of weaker sections of the people to be protected from social injustice and all forms of exploitation (Article 46)
- Right to nutrition and standard of living and improved public health (Article 47)
CHILD RIGHTS AND 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.
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.
CHILD RIGHTS AND INDIAN PENAL CODE (IPC)
- According to the section 82 of Indian Penal Code (IPC), nothing is an offence which is done by a child under seven years of age.
- Also according to the section 83 of Indian Penal Code (IPC), nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
- To ensure that people come forward to help children in danger, section 89 of IPC asserts that nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offense by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person.
- To ensure that children are not left at the peril of their parents i.e. they are not abandoned section 317 of IPC, whoever being the father or mother of a child under the age of twelve years, having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years; or with fine, or with both.
- According to section 361 of IPC, whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
- Section 363 of IPC provides the punishment of this offense i.e. whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. This ensures the safety of the children.
- Section 369 whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- To ensure that children are not kidnapped for the purpose for begging section 363A of IPC asserts that kidnapping or maiming a minor for purposes of begging is a criminal offense under IPC.
- To protect the girl child from sexual offenses section 366 A of IPC asserts that whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
- According to section 372 & 373 of IPC, selling, buying or hiring a person under 18 years of age for the purpose of prostitution or illicit intercourse with any person, or for any unlawful or immoral purpose is a punishable offence.
- According to section 375 of IPC, a man is said to commit “rape” if has sexual intercourse with a woman with or without her consent when she is under the age of 16 years.
- According to section 376 of IPC, the section provides for stringent punishments if:
- rape is committed by management or staff of Remand Home or any other place of custody established by law or children’s institution,
- rape is committed upon a woman under 12 years of age,
- gang rape is committed.
- According to section 376C of IPC, when the Superintendent or manager of a remand home or any other place of custody established under law of ‘children’s institution’ induces or seduces a woman into sexual intercourse by taking advantage of his official position, he is entitled to stringent punishment under this section.
OTHER LEGISLATION TO PROTECT THE CHILDREN
- Guardians and Wards Act, 1890: The act supersedes all the laws regarding guardianship of a child. It is a universal code specifically designed for Muslims, Parsis, Christians and Jews as their personal laws don’t allow full adoption but only guardianship.
- Child Marriage Restraint Act, 1929 (Amended in 1979): It restraints child marriage until the minimum age, i.e. 21 for male and 18 for female, has been attained by them. It applies to the people of all the religions.
- Immoral Traffic (Prevention) Act (Amended in 1986), 1956: This act with respect to children deals with person(s) who procure or attempt to procure any child for prostitution or person(s) who are found with a child in a brothel (it is presumed child has been detained for the purpose of prostitution) and punishes them. It also provides for the due care of rescued children.
- The Women’s and Children’s (Licensing) Act, 1956: The Act was enacted with an object to protect women and children from exploitation and inhuman activities going on in institutions. It mandates the institutions for women and children to get a license from the licensing authority before establishing or maintaining the institution.
- Probation of Offenders Act, 1958: This act with the help of the Juvenile Justice Act, 2000 tries to ensure that no person under the age of 21 years faces imprisonment.
- National Policy for Children, 1974: It is the first written policy for the children in India. It aims at providing better enforcement of constitutional rights of the children along with those granted by the CRC. Some of the provisions include free education, comprehensive health and nutritious plans, etc.
- Bonded Labour System (Abolition) Act, 1976: The act aims at eradicating the bonded labour system in India which exploits the weaker sections of society, especially children.
- Child Labour (Prohibition and Regulation) Act, 1986: This act regulates the working conditions for children in employment and prohibits working of children in certain kinds of employments.
- National Policy on Education, 1986: The policy is extensive in nature and elementary, university and adult level education, all fall under its scope. It tries to remove inequality by making special provisions for women and other weaker sections of society such as Schedule Castes, Schedule Tribes, etc.
- National Policy on Child Labour, 1987: The act endeavours to eradicate child labour from Indian society wherever necessary.
- Juvenile Justice (Care and Protection of Children) Act, 2000: This act is one of the important acts in India for the children in need of care and protection and also children in conflict with the law. It requires that the state provides free legal support to the juveniles, and proper care and protection is provided to those in need. It also calls for a child-friendly approach in adjudication and disposition of matters involving children.
- The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2000: The main objective of the Act is to regulate and prevent the pre-natal sex determination in order to prevent female foeticide.
- National Health Policy, 2002: This is the second National Health Policy, after the first in 1983. The policy provides for Universal Immunization Programmes, health care related education in schools and free regular health checkups at schools etc.
- Protection of Children from Sexual Offences Act, 2012: The act aims at punishing the offenders who are guilty of sexual offences against children below the age of 18 years of age. It also lays down procedures for the trial, such as, the name of child victim shall not be disclosed, proceedings of the case are to be conducted in court with cameras recording the trial, accused is not to be kept in-front of the child victim during examination or cross-examination, etc.
Some more laws and policies in India for children can be found in:
- Factories Act, 1948 (Amended in 1949, 1950 and 1954)
- Hindu Adoption and Maintenance Act, 1956
- Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960
- Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1987
- Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989
- Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992
- National Nutrition Policy, 1993
- Transplantation of Human Organ Act, 1994
- Information Technology Act, 1996
- The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002
- National Charter for Children, 2003
- National Plan of Action, 2005
- Prohibition of Child Marriage Act, 2006
- Juvenile Justice (Care and Protection of Children) Act (Amendment, 2006), 2006
- The Right of Children to Free and Compulsory Education Act, 2009
- The Child Labour (Prohibition and Regulation) Amendment Bill, 2012
- The National Policy for Children, 2013
- Juvenile Justice Rules Gazette Notification, 2016
- The Rights of Persons with Disabilities Bill, 2016
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:
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.
(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.
(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.
(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’. The Supreme Court issued the following directions inter alia to the State Governments and Union Territories
- Direct concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution.
- Take steps in providing adequate and rehabilitative homes.
- 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.
(e) 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.
(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 Githa Hariharanvs 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 vs Govt. 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, 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.
The National Commission for Protection of Child Rights (NCPCR)
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007 under the Commissions for Protection of Child Rights (CPCR) Act, 2005, an Act of Parliament (December 2005). National Commission for Protection of Child Rights (NCPCR) is a statutory body under the Commissions for Protection of Child Rights (CPCR) Act, 2005 under the administrative control of the Ministry of Women & Child Development ,Government of India. The Commission’s Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child. The Child is defined as a person in the 0 to 18 years age group.
The Commission visualizes a rights-based perspective flowing into National Policies and Programmes, along with nuanced responses at the State, District and Block levels, taking care of specificity and strengths of each region. In order to touch every child, it seeks a deeper penetration to communities and households and expects that the ground experiences gathered at the field are taken into consideration by all the authorities at the higher level. Thus the Commission sees an indispensable role for the State, sound institution-building processes, respect for decentralization at the local bodies and community level and larger societal concern for children and their well-being.
Reporting incidents of child abuse
Online system for children to report sexual abuse
The Ministry of Women and Child Development’s ‘e-box.’ is an online reporting system children enabling children to report incidents of inappropriate touching and molestation, anonymously if they choose. These reports are received by the National Commission for Protection of Child Rights.
Report it to police
Police officers are legally bound to address child abuse complaint. Further, the POCSO (Protection of Children from Sexual Offences) Act makes it illegal to witness and not report suspected child abuse and not report it. The POCSO Act has increased cases brought to trial.
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.
NGOs in India
Leading child rights NGO Save the Children as a major key independent child protection body. NGO can provide intervention in situations where child labour and abuse is suspected, and stop all forms of violence against children. The NGO is also fighting for a blanket ban on child labour in all forms to ensure that children are not exposed to harmful workplace circumstances which result in abuse. Some of the major NGOs are given below :-
- Child Rights And You (CRY)
- CHILDLINE India Foundation
- Smile foundation
- Save The Children India
- Bachpan Bachao Andolan
Children constitute the nation’s valuable human resources. The future well being of the nation depends on how its children grow and develop. 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.Although there is much legislation by the government to curb many social evils against children, the governments are not taking any enough steps to ensure that children, the future citizens of our country are protected. These are the children that would lead our country to a healthy and prosperous nation. The final affirmation on child rights is possible only if there is international cooperation and implementatition of the right to development. Since each legislation takes time to come into operation, and since some of them require a more comprehensive and detailed laying down of rules, the powers can be delegated to authorities already existing, or which can be newly established. This ensures that there is timely implementation and notification of rules and regulations, and it is a much faster way of going about it without hastiness. Collaborating with other organisations to ensure proper record keeping and tracking ensures that resources are allocated proportionately.
I wish that India would become a country to impose its punishments and decisions strictly and also more open-minded in ratifying International Conventions and Treaties. Concerning. It is undeniable that children in India face innumerable problems and child rights violation are have increased manifold since time immemorial, the reason being the unawareness for what rights are available to them and what is not. Apart from the proper enforcement of the Act, that includes the establishment of proper authorities or courts for the same, or any other necessary institution, a right call to provide incentives for the economically backward sections is the need of the hour.