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National Mechanisms For The Protection of Child Rights |
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| Paper Id :
18140 Submission Date :
2023-09-14 Acceptance Date :
2023-09-22 Publication Date :
2023-09-25
This is an open-access research paper/article distributed under the terms of the Creative Commons Attribution 4.0 International, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. DOI:10.5281/zenodo.8392139 For verification of this paper, please visit on
http://www.socialresearchfoundation.com/anthology.php#8
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| Abstract |
“A nation’s children are its supremely important asset and nation’s future lies in their proper development. An investment in children is indeed an investment in future. A healthy and educated child of today is the active and intelligent citizen of tomorrow”. Violence against children remains a harsh reality for
millions of children in different parts of India. Childrens in India face early marriage, domestic abuse,
sexual violence, violence at home and in school, online violence, child labour
and bullying. All forms of violence, abuse and exploitation have long-lasting
consequences on children’s lives. The Constitution of India, which came into
force in January 1950, contains provisions for survival, development and
protection of children. These are included both in Part III and Part IV of the
Constitution pertaining to ‘Fundamental Rights’ and ‘Directive Principles of
State Policy’. Apart from the Constitution there are a number of legislations
which deals with children. The Guardian and Wards Act 1898,The Child Labour
(Prohibition And Regulation) Act 1986, Pre-Conception & Pre-Natal
Diagnostic Techniques Act, 1994, The Juvenile Justice (Care and Protection of
Children) Act 2015 are some of the legislations which protects the rights of
the children. |
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| Keywords | Constitution, Welfare, Foeticide, Sexual Offences, Social Exploitation. | ||||||
| Introduction | 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. |
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| Objective of study | In the light of above introduction the study has following
objectives namely; 1. To analyze the various issues relating to children. 2. To study the provisions of Indian Constitution regarding
Child Rights. 3. To study the various Legislations and Policies regarding
child rights. |
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| Review of Literature | The present study has relied upon various research
articles, Supreme Court Cases. |
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| Main Text |
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] |
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| Conclusion |
The rights which are very essential for the survival of human
beings , has been recognized under various conventions and declarations as the
basic available rights for the children. In general following rights are
available to every child across the world, that is : 1. Right to Health and
Nutrition 2. Right to Education and Development 3. Right to Parental Care and
Custody 4. Right to Family Environment 5. Right against Sexual Abuse and
Exploitation 6. Right against Child labour Inspite of the availability of these
rights , there are very few children who knows about their rights and
privileges and that is why there is a need to develop a child-focussed culture
where legal system should interpret the laws in the context of the rights and
standards given in the Convention on the rights of the child.. Inspite of
various legislations and policies, the child rights violations increases at
much alarming rate. In brief the need is to mould attitude and perception of
adults and children towards Child Rights. In India, already much work has been
done by the government in this direction yet there is lot more to be done in
practice for proper enforcement of their rights and effective implementation of
laws, policies and programmes relating to survival and welfare of children. Let
us work together to provide fear free, peaceful world to our future generations
especially the poor ones so that they should not feel deprived from the feel of
what real childhood is. |
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| References | Books
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| Endnote | 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. |
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