National Mechanisms For The Protection of Child Rights

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There are so many countries in the world where children’s rights are not protected and children suffer great damage not only in the physical spheres but more so in the emotional sphere. Children has been exploited and discriminated in one form or other. It has been established again and again that children all over the world, particularly in developing countries and more specifically in India, have been subjected to all forms of social exploitation whether they are in industry, trade business, home or in footpath. Even the children of advanced societies are not spared. Like many developing countries India also faces problems of infant mortality child marriage phenomena of child widows, sex tourism and child trafficking even across borders for prostitution, child abuse and child labour. To curb all the evils Indian legislature enacted various legislations for the survival development and protection of children. In the light of above introduction, an attempt has been made to analyze the various legislations both at the national and international level in respect to rights of the children. There are so many countries in the world where children’s rights are not protected and children suffer great damage not only in the physical spheres but more so in the emotional sphere. Children has been exploited and discriminated in one form or other. It has been established again and again that children all over the world, particularly in developing countries and more specifically in India, have been subjected to all forms of social exploitation whether they are in industry, trade business, home or in footpath. Even the children of advanced societies are not spared. Like many developing countries India also faces problems of infant mortality child marriage phenomena of child widows, sex tourism and child trafficking even across borders for prostitution, child abuse and child labour. To curb all the evils Indian legislature enacted various legislations for the survival development and protection of children. In the light of above introduction, an attempt has been made to analyze the various legislations both at the national and international level in respect to rights of the children.

Role of Judiciary in Protecting the Rights of the Child

The role of the India Judiciary and the scope of judicial interpretation have expanded remarkably in recent times, partly because of the tremendous growth of statutory intervention in the present era. The judiciary plays an important role in the protection of fundamental rights of the citizen and non-citizens alike. In this modern era Judicial Activism emerged as tool for protecting Rights of the Children including protection from sexual exploitation, child trafficking, child abuse etc.

Judiciary has taken the lead to save the child from exploitation and improve their conditions. To mention a few, the People's Union For Democratic Rights v Union Of India and Others[1], Lakshmi Kant Pandey v. Union of India[2], M.C.Mehta v. State Of Tamil Nadu[3], Vishal Jeet v. Union of India[4], and Gaurav Jain v. Union of India[5] are some of the famous decisions where the judiciary has shown enough courage to uphold the interests of the children and spared no one to improve the working conditions of the child workers. The judiciary has always made concrete efforts to safeguard them against the exploitative tendencies of their employer by regularizing their working hours, fixing their wages, laying down rules about their health and medical facilities.

The present study has relied upon various research articles, Supreme Court Cases.
Methods which are adopted in the present subject:- 
1. Study of laws, Provisions etc. 
2. Analysis of Supreme Court Cases on Rights of the Child.
3. To make search through internet.

Children are recipient of welfare measures. It was only during the twentieth century that the concept of the children’s rights emerged. There is a shift from ‘Welfare’ approach to the ‘Rights’ approach. The rights perspective is embodied in the United Nations Convention on the rights of the Child 1989, and India ratified the said convention in December 1992. But in India, child rights were recognized prior to the ratification of the Convention. The Constitution of India, itself contains various provisions protecting the interest of the child. The Government of India made various laws and policies relating to rights of the children prior to the adoption of the Convention. In other words, we can say that, what was ratified by the India in December 1992, were recognized and protected prior to the adoption of the Convention. The main purpose of ratification was to implement the recognized rights in most effective manner and in the best interest of the child.

1. Rights of Children under the Indian Constitution

The framers of the Indian constitution best owed sufficient thought on the position of women and Children in the social order. This is evident from the provision of the constitution, which have not only ensured equality between men and women but also provided specifically certain safeguards in favour of women and children. Equality of status and of opportunity is a concomitant to the principle of social justice. Women and children require special treatment on account of their nature.[6]

1.1. Article 14

Article 14 of the Constitution of India provides that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.[7] This Article is equally applicable to all the persons living within the territory of India. This provision aims at establishing Equality of status among persons including women and children.  Article 14 is general provision & has to be read subject to the other provisions within the part-III on Fundamental rights.

1.2. Special Provisions for Children

Article 15(3) of the Constitution of India provides that “Nothing in this article shall prevent the state from making any special provision for women and children”[8]. Article 15(3) empowers the state to make special provisions for children under this clause and it is an exception to the rule against discrimination provided by clauses (1) and (2) of Article 15. Special provisions may be made either by legislation or by executive order.

1.3. Article 21-A - The Supreme Court during 1993 in Unnikrishnan Case[9] declared that right to education for the children of the age 6 to 14 is a fundamental right. Even after this, there was no improvement, but the Government enacted constitution (86th Amendment) Act, 2002 which made education a fundamental right. Article 21A provides that “The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the state may, by law, determine.”[10]

1.4. Article 24 -Child below the age of 14 years shall not be employed to work in any factory or mine or engaged in any other hazardous employment.[11]  This Article prohibits employment of children below 14 years of age in factories & hazardous employment. It is in the interest of Public health & safety of life of children.

In People’s Union for Democratic Rights V Union of India[12],  (Asiad Case) it was contended that the Employment of Children Act, 1938 was not applicable in case employment of Children in the Construction work of Asiad Projects in Delhi since construction industry was not a process specified in the schedule of the Children Act. The Supreme Court rejected this contention & held that the construction work is hazardous employment & therefore under Article 24 no child below the age of 14 years can be employed in the construction work even if construction industry is not specified in the schedule to the employment of the said Act. This Article however, does not prohibit their employment in any innocent or harmless job or work.

Further, Part IV Directive Principles of State Policy imposes upon the states the obligation under Article 39(e) to protect health & strength of workers & tender age of children & to ensure that they are not forced by economic necessity to enter avocations unsuited to their age or strength.[13]

1.5. Article 39(f)

The Children are given opportunities & facilities to develop in a healthy manner & in conditions of freedom & dignity & that childhood & youth are protected against exploitation & against moral & material abandonment[14]

1.6. Fundamental Duty Under Article 51 (K) in Part IV-A The Constitution (86 Amendment) Act 2002 has added a new clause (K) to Article 51-A who provides “who is parent or guardian to provide opportunities for education to his child or as the case may be, ward between the age of six & fourteen years[15].

2. Protection of Rights of Children under Various Legislations            

2.1. India Penal Code and Child related offenses

Apart from the various Acts concerning children, The Indian Penal Code (IPC) also has a list of offences against children. According to the sections 82 and 83 of the IPC a child who commits a crime and is below the age of seven is not considered to have committed a crime.[16] A child who is between the ages of seven and twelve and is deemed to have immature understanding about the consequences of his/her actions is also considered incapable of committing a crime.[17] Section 315 and 316 discusses the offence of foeticide and infanticide. If a person does an act that amounts to culpable death which results in the quick death of an unborn child, he will be charged with culpable homicide.[18] Section 305 states that it is a crime for any person to abet the suicide of a child, i.e. a person who has not completed eighteen years of age.[19]

Section 317 states that it is a crime against children, if their mother or father expose or leave a child in a place with the intention of abandonment. Sexual offences against children are also covered in the IPC. Section 376 discusses the offence of rape. Under this section a man who rapes his wife, who is not below twelve years old is given a lesser punishment. The section also discusses special circumstances of rape such as rape committed by a civil servant or police man, rape of a pregnant woman, gang rape or rape of a child below the age of twelve.[20]

2.2. Hindu Adoption and Maintenance Act, 1956

Adoption is a personal matter and hence is governed by the various personal laws of the different religions. Adoption is not permitted according to the personal law of Muslims, Christians, Parsis and Jews in India. Hence they usually opt for guardianship of a child through the Guardians and Wards Act, 1890. Law relating to adoption in Hindus is given under Hindu Adoption and Maintenance Act, 1956.

2.3. Guardians and Wards Act, 1890

The Guardian and Wards Act (1890), is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion. It authorizes the District Courts to appoint guardians of the person or property of a minor, when the natural guardian as per the minor’s personal law or the testamentary guardian appointed under a Will fails to discharge his/her duties towards the minor. The Act is a complete code laying down the rights and obligations of the guardians, procedure for their removal and replacement, and remedies for misconduct by them. It is an umbrella legislation that supplements the personal laws governing guardianship issues under every religion. Even if the substantive law applied to certain case is the personal law of the parties, the procedural law applicable is what is laid down in the Guardian and Wards Act.

2.4. Immoral Traffic Prevention Act, 1956

The Immoral Traffic (prevention) Act 1956 prescribes stringent action against those inducting children (below 16 years) and minors (16-18 years) in the offence of procuring, inducing or taking a person for the sake of prostitution. As per the Act if an adult has been found with a child in brothel or a hotel, it shall be presumed that the adult has committed an offence, and the onus will rest on the adult to prove that the child is not being detained for the purpose of prostitution. If the child on medical examination is found to be sexually abused, it shall be presumed that the child has been detained for prostitution and for commercial purposes. The punishment consists of imprisonment for a term which shall not be less than 7 years, but which may be for life, and shall also be liable for fine, with a provision for less than 7 years under special circumstances. The Act covers both the sexes exploited sexually for commercial purposes and provides enhanced penalties for offence involving children and minors. 

2.5. Prohibition of Child Marriage Act, 2006

The Prohibition of Child Marriage Act, 2006 is an Act to restrain the solemnization of child marriages. The Act prescribes a minimum age of 21 years for males and 18 years for females for marriage. This law is applicable to whole of India . The child marriage can be declared null if the partner who was a minor at the time of the marriage approaches for its annulment. Also all children born out of child marriage are legitimate. The Act provides for punishment for solemnizing a child marriage. It also provides for punishment to parent or guardian, if they marry off their children/ wards before the permissible age. Under the Act, any man who marries a minor girl is liable to the punishment as prescribed. Punishment for promoting or permitting solemnization of child marriage would extend to rigorous imprisonment upto 2 years and fine upto 1 lakhs rupees.

2.6. Pre-Conception and pre natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [as amended by Amendment Act of 2002, w.e.f  14-2-2003]

Pre natal diagnostic techniques are being misused on a  large scale to detect the sex of the foetus and to terminate the pregnancy if the unborn child is a female. The Act  states that the proliferation of these technologies may, in future, precipitate a catastrophe in the form of severe imbalance in the male-female ratio. It was therefore necessary to enact and implement, in letter and spirit, a law to ban pre-conception sex selection techniques and the misuse of pre-natal diagnostic techniques for sex- selective abortions, to provide for the relation of the techniques only for appropriate scientific use for which they are intended, and to include technologies such as pre-conception sex selection.

2.7. Child Labour (Prohibition and Regulation) Act 1986

The Child Labour (Prohibition and Regulation) Act 1986 was enacted to reduce child labour and to have an Act which is one single act and overarches the other Acts for children working in various industries and processes. The Act as the name suggest does not ban child labour in toto. It just prohibits it in certain specified processes and employments which are considered ‘hazardous’ and regulates it with rules and regulations related to work hours health and safety majors in certain others in the ‘non-hazardous’ occupations. The Act provides power to state government to make rules with reference to health and safety wherever the employment of children in permitted. The Act was for children below 14 years of age , but it also have taken into its ambit adolescent children in age of 14 to 18 years who are working. Employment of children in homes and dhabas is also banned. The Act is in contradiction of constitutional guarantee of right to education for ll children in the 6 to 14 years age group. Children can simultaneously not work and study. Therefore, an amendment to this act is urgently needed which bans child labour all together and also puts forth a plan for rehabilitation of children who have been working due to their personal life circumstances.

2.8. Juvenile Justice (care and protectionof children) Act,2015

The Juvenile Justice (care and protection of children) Act 2015 has come into force on january 15,2016 which repealed the Juvenile Justice (care and protection) Act 2000. It is an Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection. The Act provides for proper care, protection and treatment of children by catering to their development needs, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of the children and for their ultimate rehabilitation. The Ac defines a juvenile/child as a person who has not completed the age of 18 years. It has two separate sections for juveniles in conflict with law and for children in need of care and protection. The Act defines juvenile in conflict with law as a child who is alleged to have committed an offence and children in need of care and protection broadly as children who are neglected, abused, abandoned, victim of any armed conflicts or natural calamity amongst others. It also contains a chapter concerning rehabilitation and social integration of children. Offences committed against child as listed in the Act , are cognizable and punishable under the provisions of this Act. The Act has institutional provisions like children’s homes, short-stay homes and non-institutional provisions for children like adoption[21].

2.9. The Right of Children to Free and Compulsory Education Act, 2009

In 2005 the Central Advisory Board of Education drafted the Right to Education (RTE) Bill, and sent it to the Ministry of Human Resource Development (MHRD) for review. The MHRD in turn sent it to the National Advisory Council and the Prime Minister. The bill spent three years being scrutinized by the union government, government ministers and the public. In 2008 there was a new draft placed before and in September 2009 it was passed by the Union Cabinet, and hence became The Right of Children to Free and Compulsory Education Act, 2009.  The main purpose of the act is to outline the provision of quality education for all children between the ages of 6-14 as per the constitutional fundamental right awarded to children in the 86th amendment.

2.10. The Protection of Children from Sexual Offences Act 2012

To deal with child sexual abuse cases, the Government has brought a special law, namely, 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 offence of sexual assault, sexual harassment, and pornography, while safeguarding the interest of the child at every stage of judicial process by incorporating child-friendly mechanisms for reporting, recording of evidences, investigation, and speedy trial of offences through designated Special Courts. The Act recognizes almost every known form of sexual abuse against children as punishable offences, and makes the different agencies of the State, such as the Police, judiciary and Child Protection Machinery, collaborators in securing justice for a sexually abused child.[22]

Books
1. Bajpai Asha, Child rights in India, Law ,Policy and Practice, Oxford University Press, New Delhi
2. Chopra Geeta, Child Rights in India- Challenges and Social Action, Springer (India) pvt ltd, 2015
3. Diwan Paras, Law of Adoption, Minority, Guardianship and Custody (2012), Universal Law Publishing Co., New Delhi
4. Khan Nuzhat Parveen, Child Rights and the Law, Universal Law Publishing Company, New Delhi, 2012
Articles
1. Amod K. Kanth, Child Rights- Situational Analysis of Child Abuse, Abandoned and Runaway Children, Prevention and Strategies for Elimination.
2. Ankita Pandey, Critical Examination of the Rights of Child under the Twelth Five Year Plan in India.
3. Deepak Kumar Verma, Hindu Adoption Laws and Interpretation by Different High Courts, NUJS, Kolkata.
4. Dr. Savita Bhakhry, Children in India and their Rights, National Human Rights Commission, 2006.
5. Gupta Madhu and Parvesh Lata, Protection of Child Rights in India: Role of Teachers and Parents , Educationia Confab , Vol. 2, No. 3, March 2013.
6. Indrajit Khandekar, **B. H. Tirpude, ***P. N. Murkey, Right to Health Care, J Indian Acad Forensic Med. April-June 2012, Vol. 34, No. 2.
7. Prof. B.S. Reddy, Constitutional Provisions for Scheduled Castes and Tribes, women and Children and Backward Classes.
Online Sources
1. http://www.academia.edu
2. http://www.medind.nic.in
3. http://www.iosrjournals.org
4. http://www.childlineindia.org.in
5. http://www.unicef.in/Uploads/Publications/Resources/pub_doc20.pdf
6. http://shodhganga.inflibnet.ac.in
Statute Constitution of India, 1950 Acts:
1. Juvenile Justice (Care and Protection of Children) Act 2000,
2. India Penal Code, 1860
3. Hindu Adoption and Maintenance Act, 1956
4. Guardians and Wards Act, 1890
5. Immoral Traffic Prevention Act, 1986
6. Prohibition of Child Marriage Act, 2006
7. Pre conception and Pre-natal Diagnostic Techniques Act 1994
8. Child Labour (Prohibition and Regulation) Act 1986
9. The Right of Children to Free and Compulsory Education Act, 2009
10. The Protection of Children from Sexual Offences Act 2012

1. AIR 1982 SC 1480.
2.AIR 1984 SC 469.
3.AIR 1991 SC 283.
4.AIR 1990 SC 1412.
5.AIR 1997 SC 3021.
6. Prof. B.S. Reddy, Constitutional Provisions For Scheduled Castes and Tribes , Women and Children and Backward Classes, available at elearning.vtu.ac.in/P3/CIP71/1.pdf
7.Article 14 of the Constitution of India,1950
8. Article 15(3) of the Constitution of India,1950
9.AIR 1993 SC 2178
10. Article 21A of the Constitution of India, 1950.
11. Article 24 of the Constitution of India, 1950.
12. 1982 AIR 1473
13. Article 39(e) of the Constitution of India, 1950.
14. Article 39(f) of the Constitution of India, 1950.
15. Article 51A(k) of the Constitution of India, 1950
16. The Indian Penal Code 1860, s. 82.
17.The Indian Penal Code 1860, s. 83.
18. The Indian Penal Code 1860, s. 316.
19. The Indian Penal Code 1860, s. 305.
20 The Indian Penal Code, 1860, s. 376.
21. Geeta Chopra, Child Rights in India- Challenges and Social Action, Springer (India) pvt ltd, 2015, p 98.
22. Ibid p 99.