This article is written by Tapamoy Ghose, a student of NUALS, Kochi.
Reading the title of this paper, the 1st thing which comes into our mind is the question, ”who are Children?” Article 1 of the United Nations conventions defines a child as a human being whose age is below 18 “unless under the law applicable to the child, majority is attained earlier”.
Children are generally associated with terms like innocence, freedom, joy, without any kind of obligations of adult life. But they are usually vulnerable to various forms of exploitations and crimes. The fact that they are young and vulnerable establishes the fact that they need to be protected from the cruelty of the outside world. The responsibility to protect them lies with the parents and they are supposed to work for the best interest of the child.
When you look at India, 39% of the population in India is children which amounts to 472 million. There is a saying that the future of the children is the future of the nation and so protecting them and their right is essential for a nation like India. But in India, only during the 20th century, the concept of child rights emerged. Earlier the Father had absolute right and control over his children and it was an established common law doctrine. This was a practice that was there for centuries. No proper law was there. Significant developments were made when India ratified the Convention on the rights of children in December 1992. From the 20th century, children got some proper rights in place for them and this shift or change was significant. The concept of social justice, empowerment and equity emerged.
The main objective of this paper is to explore various aspects of child rights, various crimes which are common against children in India, we will also study some legislation pertaining to child right like Juvenile Justice (care and protection of children) Act, 2015, POCSO Act of 2012 etc and we will carefully analyze their impact because they are necessary for the protection of children and they should be properly implemented. We will also discuss various cases decided by The Supreme Court of India and various High courts. They are also very significant because they helped to strengthen the legal framework present to protect the Children. We will also try to understand the importance of various schemes like Mid-day meal, National child labour protection scheme (NCLP) and the Integrated Child protection scheme (ICPS). These schemes help to reduce the menaces like exploitation and child labour to a large extent.
United Nation and its effort on child right
After seeing the plight of children across the globe, United Nations decided to create a permanent body especially for Children which is known as UNICEF. Over the decade UNICEF was successful in addressing a host of problems faced by children.
Significant stride was made when in 1989, UNGA adopted the famous convention of the right of Children. It was the most widely and rapidly ratified treaty on international human rights in history. It set out the political, cultural, social, health, civil and economic rights of children. This convention also defined children as a human being whose age is below 18.
India ratified the convention on 11th December 1992 except some special provision related to child labour. In India children below the age of 18 years can work except hazardous industries. The sad thing is that there is a growing demand for child house-help. Currently there are approximately 4 million child labour in India according to conservative government report.
Problems of Child in India and the legal framework
The problems that children faces in India are usually child labour, sexual harassment and juvenile justice. They are the problem that has been bothering the children since independence. Government has tried to curb down these menaces by putting in place effective legislation, well constructed schemes. Now we will analyze each problem and how government is trying to counter that separately here:
According to the International Labour organization, child labour is defined as work “that deprives children of their childhood, their potential and their dignity and that is harmful to their physical and mental development. It refers to work that is-
- Mentally, socially, physically and morally wrong and can harm them.
- By making them work which will deprive them the chance of attending school.
Child labour is a big problem in India. The fact that their wage is minimal makes them an ideal choice for employees. According to the census of 2011, there are 10.1 million working children who are between the age of 5-14. Major contributors were Uttar Pradesh, Madhya Pradesh, Bihar, Rajasthan and Maharashtra with nearly 55% child labours of India. However we were successful to reduce the number of child labour by 2.6 million which was more visible in the rural areas.
Over the last 20 decades, India has put in a number of legislation and schemes to combat this problem. Children who are separated from their family now remain in a proper economically stable family home and get the chance to get educated properly. The main reason of child labour in India is illiteracy and lack of employment. Effort has been there to tackle it in its root. To dodge the legislations we have put into place, the method of child labour has changed. From the formal setting of factories and shops, it can be seen that the children are employed into business owners’ houses. Child labour is often gender specific, like boys are employed into more physically demanding job whereas girls can be seen in a household job.
Government legislation and scheme to tackle child labour
Some of the effective government legislations and scheme in place is The Child and Adolescent (Prohibition and Regulation) Act, 1986 and National Child Labour Project (NCLP) scheme. We will discuss and analyze both of them here-
The Child and Adolescent (Prohibition and Regulation) Act, 1986
Section 3 and Section 3A of this Act lays down strict guidelines. Section 3 states that a child shall not be employed in any occupation other than his family enterprises and business if its not a hazardous industry during his vacation after school hours and a child can work as an artist in audio visual entertainment industry within safety measure. Section 3A ban employment of a child in any hazardous industry completely. Section 5 of the Act directs the central Government to appoint a Technical advisory committee to lay down guidelines as to which industry is hazardous and which one is not, so confusion is generally avoided. Section 6 lays down the places in which a child can work.
Section 7 lays down the limited hour of work and compulsory holiday related provision which enables the child to get ample time to nurture himself and fulfill his potential. According to Section 9, the owner of such an establishment where children work is bound to send a notice to the inspector regarding the work the children are supposed to do there which reduces the chance of any mishap. According to Section 11 of this Act, such an employer is directed to maintain a registrar for inspection by inspectors which contains the name of child employee, hours and types of work they are supposed to do. This has ensured greater transparency in the entire proceedings unlike earlier times. According to Article 13 of this Act directs the employer to ensure proper health conditions in the workplace. Article 14 of this Act lays down penalties for the violation of this Act, which is minimum 6 months and maximum 2 years or fine which may extend to Rs. 50000 and Article 14A of this Act makes practicing child labour a Cognizable offence and Article 14C provides for the rehabilitation of the child who were a victim of Child labour.
This Act can be treated as one of the most important legislation in this matter. This Act did a remarkable job by lying down norms, which industry is hazardous for children and which industry is not. Earlier, a lot of children were employed in the brick industry, chemical and fertilizer industry but after the commencement of this Act, such practices were dropped. Regular inspection in certain factories ensured that the owner of those factories adhere to prescribed standards and norms. Rehabilitating child, who are victim of child labour ensured that those children who suffered can have a chance of returning to the mainstream society.
National Child Labour project scheme
The National Child Labour project scheme was started by the Ministry of Labour and Employment in 1988. The 1st target was 12 district which had serious problems of Child labour. Target was to rehabilitate the kids who were victim of child labour. Under this scheme, the ministry took various productive surveys of child labour in various hazardous industry. Unidentified children from those surveys were withdrawn from occupation and sent to special school so that they can return to the mainstream society. Those special schools provided the child useful vocational training, bridge course, mid day meal and stipend of rupees 150 per month and free health care facility. The authority to implement this project was with a society headed by the District Magistrate or collector. Members of the society were drawn from various reputed NGO, Concerned government departments, panchayats etc. The responsibility of the funding of this project was with the central government. As of now, there are 6000 operational special schools under this project and more than 10 lakh kids, who have been able to return to the mainstream society with the help of this project.
One of the most important and challenging thing to do is to bring the children, who are the victim of child labour, to the mainstream society because once a children enters the vicious cycle of child labour, it becomes difficult for him to bounce back. This scheme is able to solve that problem to some extent. Providing a children with bridge course and vocational training with stipend before integrating them into formal education can solve a root cause of child labour, namely lack of education. A children who is educated, will have a less chance of falling prey to child labour. This is the place where the NCLP scheme is successful.
M.C. Mehta VS State of Tamilnadu & Ors.
In 1986, eminent environmental lawyer M.C. Mehta filed a writ petition before the honorable Supreme Court of India indicating the gross violation of Article 24 which is happening in Shivkasi, Tamilnadu. Article 24 of the Indian Constitution, which is also a fundamental right state that no children below the age of 14 year shall be employed to work in any factory or mine or engaged in any other hazardous employment. Shivkasi, which is famous for firecracker industry, employs a large number of child labour, which violates Article 24. The judges felt that despite having such constitutional provision in place, violation of Article 39(f) and Article 45 is taking place which ensure that children get the chance to leave with dignity and get proper chance to get educated.
A committee of Advocates was formed to visit that place and make a detailed report. The committee submitted its report and in the report it was mentioned that, the Tamilnadu Government should take effort to ensure that children are not employed in firecracker factories, those children who works in the package section, should work in a separate premises and they should not work more than 6 hours per day and they are entitled to get proper recreational facilities and education, basic diet of food, and insurance scheme. It said that a commission for child welfare should be there to abolish child labour in a phased manner. Coming to the judgment, it also mentioned that not only shivkashi, violation is taking place in other part of India as well which shows that Child labour is an all-India evil now and joint effort from both Central and State government is needed. Through various provisions of the constitution like Article 24, 39(e), 39(f), 41, 45, 47 they can do that. Although except Article 24, all are Directive Principles of State Policy, it is the duty of the organs of the state to implement them properly. The judgment also mentioned that India has international commitment towards the Convention of Child Rights which was adopted in UNGA in 1989.
Through its instrument of accession to this convention, declared that it would ensure children are not employed in any hazardous industry and works for a limited hour and minimum age of employment criteria is followed and as a responsible member of this treaty, India should follow them. The judgment also touched the relevant provisions of Acts like Section 67 of Factories Act, 1948 which mentions the minimum age for employment, Section 24 of the Plantation Labour Act, 1951, Section 109 of Merchant shipping Act, Section 45 of Mines Act, 1961 etc. The aforesaid legislative provision shows strong desire for prohibition of Child Labour. The judgment also touched the part of poverty as a root cause of child labour and said that alternative career option or stipend should be given to them to keep them out of this menace as per the provisions of Child Labour (prohibition and regulation) Act 1986. A child who is employed in a hazardous industry shall be withdrawn and an alternative job should be provided to an adult member of the family or the child should get 25000 Rs for his future. Frequent surveys should be there to ensure that they are implemented properly.
Child labour is a menace which should be fought at any cost. Over the year, India has been vigilant enough to protect children from this menace. Schemes like NCLP, and various Acts which contain various provisions relating to the prohibition of Child labour (factories Act, 1948 and Mines Act, 1961 for example) and judgment like M.C. Mehta vs. State of Tamilnadu and Ors which sends a strong message to the masses are testament to that. Hopefully India will be able to be a zero child labour nation in near future as envisioned by the founding Father of Indian constitution. Hope we make a giant stride towards that feat.
Sexual offences and abuse against children
The World Health Organization provides a perfect definition for Sexual offences and abuse against children. It is the involvement of children in a sexual activity which he can’t comprehend or understand and give informed consent and which violates the law of society. It also involves touching the child inappropriately, sexual intercourse, involving the child in pornography or prostitution or online child luring by cyber predator.
In India, every 15 minutes, a child becomes the victim of sexual abuse as reported by a report from the National Crime record Bureau which shows the seriousness of this evil in India. As reported by the report on crime released by the then Home Minister Rajnath Singh in 2016, 106958 crimes against children were reported and out of them, 36022 cases were registered under the POCSO (Protection of Children from sexual offences) Act. India has the highest number of sexually abused children in the world and as there is reluctance to talk about this issue, the situation can be much worse in reality. In 2007, a study conducted by the Ministry of Women and Child development showed the result that, 53% child are somehow victim of sexual abuse.
Legislature to counter Sexual offences against children
One of the most prominent legislature in this regard is the Protection of Children against sexual offences or POCSO Act, 2102.
The Protection of Children from Sexual offences (POCSO) Act, 2012
This Act provided a conclusive definition of the term “penetrative sexual assault” and “aggravated penetrative sexual assault” in the Section 3 and Section 5 the Act and provide punishment for this offence in the Section 4 and Section 6 of the Act and the punishment is pretty stringent. Whoever commits the crime of Preventive sexual assault to any children below the age of 16 year shall be given imprisonment for not less than 20 years which may extend to imprisonment for life and also a fine which will be used to pay for the medical and rehabilitation for the victim of the Act. Section 7 of this Act mention sexual assault and defines it as “whoever, with sexual intent touches the vagina, penis, anus or breast of the Child or makes the child touch the vagina, penis, anus of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault”.
The punishment for this is imprisonment not less than 3 years which may extend to 5 years and fine also according to Section 8. Also according to Section 10, punishment of aggravated sexual assault will be not less than 5 years which may extend to 7 years and also fine. Section 11 of the Act define sexual harassment as an Act of making obscene gesture to a child and provides for the punishment in Section 12 with imprisonment which may extend to 3 years and fine. Section 13 mentions the use of a child for pornographic purpose and defines it as an act of using a child and showing his sexual organ on T.V, internet or any other electronic media and says that the punishment will be imprisonment of 5 years and fine. In case he is convicted again, the punishment will be 7 years according to Section 14.
Section 15 states that whoever store any content like child pornography with an intention to share it shall be fined with 5000 rupees and in case of second conviction it will be 10000 rupees. Section 16 and 17 defines abetment and provides punishment for abetment as envisaged in law. Section 19 and 20 puts an obligation to report such cases of sexual harassment and failure to do so results in imprisonment for six months or fine or both. Chapter VI provides for statement recording of a child and guidelines regarding medical examination. Section 28 provides for the establishment of special court to hear sexual abuse against child related issues in every district and special public prosecutor is also appointed for such court through Section 31. Section 43 and 44 provides that this Act gets awareness among the general public and it is properly implemented.
The Act has helped people to come forward and let their voices known to the world. Increased number of cases has been filed in the court of law and a higher number of convictions has been there. Cases registered for sexual offences have risen from 8904 in 2014 to 14913 in the year 2015 under the POCSO Act which shows how effective this Act is. As this Act also makes witnessing incidents of child abuse and not reporting it illegal, it helps in large number of cases filed. Cases are also resolved in a quick manner under this Act. Special courts usually give its judgment within 1-3 months. Police officer should also comply with the norms while addressing the issue of child abuse. Police also ensures that the child is well cared for and protected, that he gets urgent medical attention and proper shelter home.
The special court is also created to be a child friendly court where he can testify in the presence of a trusted person. One of the most important problems we faced earlier was the lack of awareness among citizens about an important Act. But this Act has a relevant provision for that also. People are properly sensitized about the important provisions of this Act so that they can be aware about the consequences they might face if they commit such crime which has helped significantly to curb down the instances of sexual offences. So after carefully analyzing the Act, we can say that this Act is very much effective in the arena of Child sexual abuse.
Juvenile justice is one of the most important issues the world is facing now. Children who are often arrested for the crimes they commit don’t get the protection which they are entitled under the much debated Convention on the Right of the Child. Some states also treat children, who commit serious crimes as an adult during their trial. The International prohibition on detaining children as adults is also often violated.
Crime rates by children under the age of 16 have increased in the last few years. The reason behind this may be social, economic or educational or lack of parental guidance. Their frame of mind is clear and innocent and the dangerous fact is that, they can easily be manipulated into committing serious crimes which was there to be seen in the deadly Nirbhaya Gang rape case in Delhi, which shook the whole nation. The accused in this case was just a few months short of 18 years. This development forced the legislation to adopt a new law, named Juvenile Justice (care and protection of children) Act, 2015 which replaced the existing law and ensured that juveniles between the age group of 16-18 can be tried as an adult in the court of law if they commit some serious crime.
Here comes another question in our mind. What is the difference between a juvenile and a child? Child is a person below the age of 18 years who if commits a crime is sent to a child care centre and not tried as an adult. But a juvenile is a person between the age group of 16-18 years and is tried as an adult in court proceedings. Over the years, the rights of the juvenile has been a concern for various international organizations and many declaration and rules have been passed in this regard like Beijing rules, Riyadh guidelines, Havana convention and Vienna guidelines.
One of the most prominent legislation in India, which ensures the rights of children who are in conflict with the law, is the Juvenile Justice (care and protection of children) Act, 2015.
Juvenile Justice (care and protection of children) Act, 2015
One of the most important provisions in this Act can be seen in Section 4 of this Act which directs the state government to establish one or more juvenile justice boards in every district to deal with related pertinent issues and ensure that only eligible civil servants and other reputed activists are there in the board. Section 7 lays down norms regarding the meeting of the board and ensures that such proceedings are child friendly. Under Section 8, the board gets all the power to deal with related matters. Section 10 ensures that if a child is apprehended to be in conflict with the law, such child will be placed only under the special juvenile police unit and produced before the board within 24 hours.
Section 12 states that if a child commits a bailable or Non bailable offence, he shall be released on bail under a probation officer or any fit person. Section 14(2) orders the board to conclude its investigation within 4 months. Section 15 states that if a heinous crime has been committed by a child above the age of 16 year, a psychological test should be done to understand his mental capacity. Section 27 is also an important section in this regard as it orders the state government to establish a child welfare committee in every district in order to provide adequate care and protection to those children who need it and orders the committee to meet twenty days in a month (Section 28). The committee will have authority to dispose of cases relating to care, protection of children in need. The committee will also have full power to conduct enquiry. Any parent who is unable to maintain their child can surrender the child in front of the committee according to Section 35.
The guideline of rehabilitating special children under this Act is also mentioned in Section 39. State government is also bound to open shelter homes for such children who have committed a heinous offence under Section 49. Chapter VI of this Act also helps to ensure that the adoption policy is well streamlined with various government machinery. The National commission for protection of Child rights will monitor the implementation of this Act according to Section 109.
The Juvenile Justice (care and protection of children) Act, 2015, since its inception has done a remarkable job of protecting the rights of juveniles. The establishment of a special Juvenile justice board and child welfare committee ensures that the interest of the child is very well protected and suitable child friendly situation is there during proceedings. Those committees are directed to wrap up their investigation within one month which ensures matters are disposed of in a speedy manner. Keeping NCPCR in charge of implementation will ensure that this Act is properly implemented which is very much necessary for the success of this Act.
Sampurna Behrua vs UOI
Sampurna Behrua Vs UOI is another landmark judgment in this regard. In this Judgment, honorable justice Madan B Lokur. Criticized the government for not ensuring rights of the vulnerable and not properly ensuring the provision of Juvenile justice Act and also mentioned that a lot of state has not created juvenile justice board yet which was also mentioned in the writ petition filed by Sampurna Behrua. It also contained horrible conditions in some shelter homes which is clearly violative of Article 21 of the Indian Constitution. After studying all the relevant facts and hearing all the arguments, the Supreme Court finally delivered its judgement and issued certain directions.
They directed to fill up the vacancies in NCPCR and SCPCR so that adequate manpower is there. The state government should take all the adequate measures to fill up positions in the juvenile justice board and ensure implementation. The JJ’B will sit regularly so that less cases are pending. The Ministry of Women and child development should use information technology to have a proper database of missing children. The National and state police academy should introduce law as a part of their curriculum. The child care institute shall be dignified. Finally, a request was made to the chief justice of every high court to establish child friendly courts in the state.
This judgment helped in the proper implementation and establishment of JJ’B and dignified shelter home to a large extent.
Children right to education
Right to proper education is an integral part of the development of any child. As Nelson Mandela properly mentioned that education is the most powerful weapon which can change the world. In India also, right to free education has been guaranteed to the children under Article 21A which is also a fundamental right under the Part III of the constitution of India. It orders every state to ‘provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may by law determine’. This has been subsequently backed up by the Right of Children to Free and Compulsory Education Act, 2009.
Now we will discuss various schemes which were started by the government to make elementary education accessible to all children.
Sarva Shiksha Abhiyan
Sarva Shiksha Abhiyan is a flagship scheme of the government of India whose main aim is the universalization of elementary education (UEE) in a time bound manner as provided in the 86th amendment to the Constitution of India, making education compulsory for children between the age group of 6-14 years. This scheme is a partnership between the central government and respective state governments. The main aim of this scheme is to open more and more schools in the rural area which lack proper facilities and also to strengthen the existing school, making them more modern. They give training to the teachers of those schools and also add new teachers to the schools who lack them. Teacher learning manual is also being provided which allows the teachers to extend their capacity. This scheme is giving more and more important to girls education and has included training which provides them with necessary life skills. Special attention to special children is also given.
Beti Bachao Beti Padhao Scheme
Girls in India are victim of both pre birth discrimination and post birth discrimination. There should be coordinated effort to ensure that girls get proper educational facilities. Although the Sarva Shiksha Abhiyan tries to improve the situation to some extent, it is not at all enough. That’s why the government implemented the famous Beti Bachao Beti Padhao scheme. This is being implemented through a national level campaign in every state and UT in India as a joint initiative between the Ministry of Women and Child development, Ministry of Human resource and development and Ministry of Health and family welfare. The main aim of the scheme is to eliminate gender discrimination, ensuring survival and protection of vulnerable girl child and ensuring that girls properly participate in education and to improve the ever declining child sex ratio.
The scheme has been successful so far and has been able to improve the child sex ratio to some extent as awareness; consciousness has increased among the masses about this issue. The latest data released by the Health management information system (HMIS) in 161 district indicates that sex ratio during birth has increased significantly.
The National policy of education which was started by the Rajiv Gandhi government aimed for improvement in elementary education. The major project to improve school education was operation Blackboard. The minimum criteria for a primary school were laid down as two rooms, two teachers and some essential teaching learning Aids or TLA. This TLA included a science kit, math kit, maps, blackboard etc. All existing schools were upgraded to this level in lieu of this project. This project sought to achieve the target of improvement in both teaching and learning process.
Child marriage is a violation of child right which hampers the physical, mental aspect of the child. It also affects society as a whole since it is a part of the prevailing cycle of poverty and also encourages gender discrimination. It also increases the high infant and maternal mortality rate. Although both boys and girls get hampered in this process, it’s the girls who suffer the most.
Government schemes and legislations
Efforts have been there on the part of the government to ensure that instances of child marriage doesn’t happen in India. Various effective legislations have been carved out to fight this menace and one of the most important among them is The Prohibition of Child Marriage Act, 2006.
The prohibition of Child Marriage Act, 2006
This Act lays down some important provisions to deal with the issue and covers an extensive area. Section 3 of this Act can be called one of the most important sections as it makes the marriage void at the option of the party who was child during such marriage. According to Section 8 of the Act, any child born out of such marriage will be given proper shelter keeping his welfare in mind as directed by district court and such child will be legitimate child for every purpose. Section 9 calls out the punishment and says that any male who is over the age of 18 marries any minor, shall get punishment for 2 years of rigorous imprisonment and the abettor of such marriage and promoter of such marriage will get the same punishment only. Section 12 says that any child who is taken out of the lawful custody of their guardian by deceitful means and forced into marriage, such marriage will be null and void and Courts will have power to give injunction under Section 13. Any offence under this Act will be cognizable and Non-bailable as per Section 15.
The most important part of this Act is that this Act provides that any form of Child Marriage is null and void which sends a discouraging blow to the people who practice it. Effect punishment of all the parties involved such as the promoter and abettor will get punishment too which discourage people to do it. It gives children of such marriage legitimate rights like a normal kid and protects their interest indirectly. Hopefully this Act will be successful in years to come.
Ever since India achieved independence, the three wings of the Government have made constant effort to protect the child of rights as they are our national asset. The legislature, executive and judiciary has taken proactive measures to put in places various effective legislation, policies and schemes to ensure the development, survival, protection and normal growth of children. But despite all this effort, the situation of children in India still remains precarious. Although laws are there, it has been really difficult to implement them especially in rural parts of India. The main aim should be to implement the laws properly in the field. Children being a supreme asset of our nation, they should be the priority. But in a country like India, which has great diversity, large number of floating populations, social conflict and turmoil, the challenges to ensure the right of the children is even greater. The main priority in this given situation is to give the children a protective environment which will be supportive to their growth and this can be created only through the establishment and enforcement of adequate legislation, addressing harmful attitudes, customs and evil practices. The budgetary allocation to various schemes and projects are not adequate and there is an imminent need to increase it.
As we studied in the due course of this assignment, there are urgent needs to improve the condition of various child care centres because they too have the right to a dignified life and the Government is bound to provide for that. As various provisions of Acts concerned for the right of children calls for regular inspection in places where child right violation takes place, the Government should be vigilant enough about this because this way those problems can be dealt with properly. As a Nation, you cannot grow if you don’t improve the condition of your children. Awareness drive should be conducted by various responsible wings of the government because in a Nation like India where lack of education is a problem, awareness is generally minimal. Many parents don’t even know the legal rights their children have so they suffer in silence.
As Marian W. Edelman correctly pointed out, “If we don’t stand up for children…then we don’t stand for much”. Growth cannot happen while a Nation neglects the legitimate right of their children.
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