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This article has been written by Parvathy S.L.

Introduction

“Children do not constitute anyone’s property: they are neither the property of their parents nor even the society. They belongs only to their own freedom.”

As minors, by law children do not have any power to make decisions on their own. Instead, these decisions are made by their parents, caretakers, social workers, teachers, youth workers and others are instilled with such authority. It is generally believed that the state gives insufficient control over their own lives and makes them vulnerable.

Children rights are the human rights of children which draws special attention to the special protection and care afforded to the minors. Many government policies have held to hide the ways adult’s abuse and exploit children which lead to a decline in the integrity of children, which leads to child poverty, lack or even denial of education. Through this view, children are considered to be the minority group towards whom the society needs to reconsider the way it behaves towards them.

Children were the recipient of welfare measures. It was in the twentieth century that the concept of children rights emerged. Technically it is a replacement of welfare with rights. Which was indeed a significant approach.  Rights are entitlements which have goals and obligations. They primarily consist of much social justice, non-discrimination, protection, equity and empowerment. The rights perspective is embodied in the United Nations Conventions on the Rights of the Child 1989 which is a landmark in the international human rights legislation.

A stirring view in most cultures is that younger the children the more they are vulnerable both psychologically and physically. Most of the activities of children are regulated by the age limit of the children- in which they leave to school, In which age they can marry, in which age they are considered as adults as per the criminal justice system, in which age they can work, in which age they can work, in which age they can join the armed forces, etc. But the age limit differs from activity to activity and country to country.  In the Constitution on India and Child Labor (Prohibition and Regulation) Act 1986, a ‘child’ is defined as a person below 14 years of age. The recently amended Juvenile Justice Act 2015 children (16-18 years) may be treated as adults if they commit heinous crimes like rape, acid attack, murder etc.

The Constitution makers were aware of the fact that children are the promises of the nation, the future of India was in the hands of children. They were concerned about making provision for the protection of the children. By protection, they meant protection of mind, protection of the body, protection of dignity, protection of their rights…etc. The Constitution had laid down many provisions which dealt with the lives of the children. In order to strengthen the provisions in the constitution, there has been the introduction of many legislations, policies, schemes etc.

Constitutional provisions which protect the rights of children in India

The constitution ensures the rights and protection of children through its various provisions. Children on the account of their sensitive age and immature age need special care and protection. They have specific rights and legal entitlements that are being recognized nationally and internationally. The constitution has recognized the rights of children to a great extent and included many articles dealing with the compulsory and free education, liberty and development in childhood, non-discrimination in educational spheres and prohibition of their employment in factories, mines and hazardous conditions.

The legal provisions are:-

ARTICLE 14 – RIGHT TO EQUALITY

According to this article, the State shall not deny to any person the equality before the law or the equal protection of laws within the territory of India.

Citizen of India including children must be treated equally before the law and must be given equal protection by law without any discrimination or arbitrariness. This right which is provided in the Indian Constitution protects the rights of children so that their dignity and integrity as a child is not exploited. Children being vulnerable have more chance to be treated unequally in the Indian society. Article 15 of the Indian Constitution prohibits discrimination. In Article 15(3), nothing in this Article shall prevent the State from making any special provision for women and children. It is very clear from Article 15(3) that “special provision” does not mean unequal treatment but it is established for the well being and development of the children in India.

ARTICLE 21A –RIGHT TO EDUCATION  

According to this article, The State shall provide free and compulsory education to all the children of the age of six to fourteen years in such manner as the State may by law, determine

The Constitution (Eighty-sixth Amendment) Act,2002 inserted Article 21A in the Constitution to provide free and compulsory education of all the children in the age group six to fourteen years as a Fundamental  Right. There have been many backlashes in providing education to all the children in the state. There are many reasons for the same.  The right to education is reflected in international law in Article 26 of the Universal Declaration of Human Rights and Article 13 and 14 International Covenant on Economic, Social and Cultural Rights.

Most importantly these articles ensure education to all the children irrespective of religion, caste, gender and financial condition. This article makes sure that no child is deprived of his/her basic education. Everyone shall be provided with elementary education. 

ARTICLE 24 –PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES 

According to this Article, No child below the age of fourteen shall be employed to work in any factory or mine or engaged in any other hazardous employment.

Hazardous conditions may include construction work or railway. This article does not prohibit and harmless work. This Article provides the regulation and prohibition of child labour in India. Child Labour is defined as the work which deprives children of their childhood, potential and their dignity; it is something which causes a threat to their physical and mental development.  UNICEF estimates India with such a high population has a high rate of child labourers. India, after its independence from the colonial rule, has passed many constitutional protections and laws on child labour.

DIRECTIVE PRINCIPLES OF STATE POLICES

There have been many provisions in the Directive Principles of state policies which specify how the state is responsible for the protection of rights of children.

ARTICLE-39 – Certain principles of the policy to be followed by the state.

Article 39(e) states that the health and strength of workers, men and women, and the tender age of children are not forced by economic necessity to enter avocation unsuited to their age or strength.

Child Labour is one of the social evil that is forced by economic necessity; it is the responsibility of the state to ensure that no child is subjected to any physical or mental abuse.

Article39 [1](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.

This provision also protects childhood and provides opportunities and facilities to grow with the safe explosion.

ARTICLE 45 This provision is for early childhood care and education children below the age of six years.

According to this provision, the State shall Endeavour to provide early childhood care and education for all the children until they complete the age of six years. According to this Act of the Indian Constitution, the state shall protect the child and is responsible for the development within them. The state shall ensure the safe growing environment, where their childhood can be experienced by themselves without any external threat. After that, it is the responsibility of the state to provide them with free and compulsory education 

No matter how the condition of the child is, even if they are not protected by their own parents or they are denied with their rights by their own parents. The State has to take strict measures for the well being of the child.

FUNDAMENTAL DUTIES

Fundamental duties refer to the basic obligations of a citizen in India. It contains about 11 duties which are to be followed by the citizen of India.

It is defined as the moral obligation of all citizens to help promote a spirit of patriotism and to uphold the unity of India.

I ARTICLE-51A(k) It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities to provide education for his child or, as the case may be, ward between the age of six and fourteen years. Through this provision, the Constitution strictly mentions the providing of education as the duty of the parent as it is for the future and development of the country.

Laws which bind the protection of the child in India

INDIAN PENAL CODE 1860

According to Section 82 of the Indian Penal Code, nothing is an offence which is an offence done by a  child under the age of seven years and Section 83 states that, nothing is an offence which is done by a child above seven years of age and under twelve.

As in this age, the children will not attain the maturity to distinguish between what is right and what is wrong.  The child will not be aware of the consequences of his/her conduct.

He is incapable of understanding good and bad, which means he/she is totally Dole incapx.

Section 305 of the Indian Penal Code states the Abetment of Suicide if any person under the age of eighteen years of age commits suicide and whoever abets them to does such an act shall be punished under the punishments under the act.

Section 315 refers to Infanticide in the Indian Penal Code which comes in the category of crimes against children. This Section of the Indian Penal Code provides punishment for the act of killing an infant. Here, Section 316 of the Indian Penal Code states Foeticide, whoever does the act of causing death of quick unborn child by act amounting to culpable homicide

Section 317 states the exposure and Abandonment of a child under twelve years, by parent or person having care of it. The exposure and abandonment by a father or mother of a child under the age of 12 will be punished for the same.

Section 369 of the Indian penal code states the punishment of kidnapping a child under the age of ten with an intention to steal from its person.

Section 366A of the Indian Penal Code states the punishment for the Procreation of minor girls (for inducement to force or seduce, to illicit intercourse). This section provides the action against the said crime to ensure the protection of the girl child in India.

Section 372 and 373 states the punishment for buying, selling or attain the possession of   a person under the age of eighteen at any age employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful purpose.

PROHIBITION OF CHILD MARRIAGE ACT 2006

The Government of India introduced the Prohibition of Child Marriage Act 2006 after the repeat of the Child Marriage Restraint Act. The main aim of this Act is to prevent child marriage. This Act ensures that child marriage is completely eradicated from society. A child according to this Act is female who has not attained the age of eighteen and a male who has not attained the age of twenty-one.

APPRENTICES ACT 1961

The main purpose of this Act was to prohibit the apprenticeship or training of children under the age of 14 years and for other minors there require a contract between the employer and the guardian. A person is qualified to be engaged in apprentice if he is not less than fourteen years and satisfies such standard of education and physical fitness.

JUVENILE JUSTICE ACT 2015

This Law, brought in compliance of the Child Rights Convention repealed the earlier Juvenile Justice Act of 1986. This Act was further amended in 2006 and 2010. This Act was again repealed in 2015, This Act provides a special approach to the protection, treatment and development of children, this law mentions how a child should be protected in a home, without a home, begging etc…Under section 15 of this Act special provision had been made to tackle child offenders committing heinous offences under the age group of 16-18 years. The way in which a child should be protected from all the external threats.  

THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT 1986

This prohibits the engagement of children in certain employment which is hazardous to the child who can affect the child mentally and physically. It regulates the conditions of work of children in other employment.

THE ORPHANAGES AND OTHER CHARITABLE HOMES (SUPERVISION AND CONTROL) ACT 1960

This Act provides the supervision and control over the orphanages, homes for the abandoned women.

THE GUARDIAN AND WARDS ACT 1890

This Act deals with the qualification, appointment and removal of guardians of children by the courts and is applicable to all the children irrespective of religion. When it comes to divorce there exists confusion about with whom the child should go with. It is the wish of the child that the court consider first, there can be influences on the child due to the factor of their age and hence after the pleading by both the parties the court comes to a conclusion where the court ensures the protection of the child.

THE HINDU ADOPTION AND MAINTENANCE ACT 1956

This Act generally dealt with the provisions for a Hindu adult to adopt a child and the  Hindu law of maintenance to wives, parents and children. 

PROBATION OF OFFENDERS ACT 1958

This law lays down the restrictions on the imprisonment of offenders fewer than twenty-one years of age. This Act is in order to prevent the conversion of young offenders to obstinate criminals.  Since there are chances for their transformation when they are subjected to jails along with criminals.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT 2012

The POCSO Act, 2012 is a law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interest of children in every stage of the judicial process by incorporating child-friendly mechanisms.

The Act provides for Special courts that conduct the trial in-camera and without revealing the identity of the child.

Landmark decision on the rights of children

 Children by definition are unable to petition the court themselves, they have to rely on the parents patria role of the state. The needs of the children were responded by the court through public interest litigation, in the conditions where some improvement is significant like in institutions, prisons, illegal confinements, treatment of mentally retarded children and handicapped children, child labour, child marriage, adoption, juvenile justice, prevention trafficking of young girls, the welfare of children of the prostitutes, prohibition of corporal punishment in schools and sex-selection. There has been a decision made by the court on almost all the matters which is related to a child. The court has seen the matters through the lens that all the decisions made were concerned and made for the children all over the country.

M.C Mehta v. State of Tamil Nadu

The judgment passed states the direction to prohibit child labour in hazardous conditions; the petitioner was concerned about the high rate of child labour in hazardous conditions in the Match factories of Savakis in Kamraj district of Tamil Nadu. The judgment gave out the visions of the constitution and also linked between child labours with poverty, the judgment also stated that there has been no proper eradication of child labour by the state,

Sanjay Suri v. Delhi administration

The court laid down orders to transfer some guilty officers and laid down the rules to protect children in jails. Juvenile undertrials were the subject of Sanjay Suri’s petition. Many children were sent to jail despite the prohibition in the children’s Act. The Juvenile were kept together with habitual and other adults where they were brutalized and made to do undesirable tasks,

Gaurav Jain v. Union of India

The Supreme Court held that segregating the children of prostitutes would not be in their interest. The Supreme Court held that the children of the prostitute have the right to equality of opportunity, dignity, care and protection and rehabitalised so as to be a part of the mainstream of social life without any pre-stigma attached on them.

Vishal Jeet v. Union of India

Several directions were issued to end the sexual exploitation of children. The court issued directions to the state government to set up rehabilitation homes for the children found begging in the streets and also minor girls pushed into ‘flesh trade’ to protective homes.

Sheela Barse v. the Secretary Children’s Aid Society & Ors

The petition was filed in public interest with regard to improper functioning of childcare institution in Mumbai, The Supreme Court directed that in no case should a child kept in jail and a central law must be enacted to bring uniformity in the juvenile justice system.

Kishan Pattnayak v. State of Orissa

Poor people were forced to sell children to buy food. The Orissa government was compelled to take several welfare actions. The petitioner wrote a letter to the Supreme court of India bringing to the court’s notice the extreme poverty of the Kalahandi in Orissa where hundreds of people were dying due to starvation as a result they were forced to sell their children. This case has taken the issue of the lack of food and poverty. In this judgment, the Supreme Court took significant steps in implementing irrigation projects in order to reduce drought and certain measures were taken in order to ensure fair selling prices.

Sarita Sharma v, Sushil Sharma

The court held that in the issue relating to custody of children, paramount consideration should be given to the welfare of the children.

Unnikrishnan J.P &Ors v. State of Andhra Pradesh

The court held that the right to education is implicit in the right to life. The Judgment on 

This case expanded the Right to education being enshrined to Right to Life. In 2002, by the 86th Amendment of the Constitution inserted Right to Education within Right to life.

Policies and action plans which aims for the protection of rights of children

The child protection policies are determined to safeguard the rights. The Action plans are thus made into effect to provide a positive environment for the development of the child. A number of policy, programmers, initiatives and plans have been undertaken in India. These are some of the major policy and plan documents:

 National Policy for Children 1974

Children were declared as the nation’s ‘supremely important asset’ in the National Policy for children, 1974. The Government of India contributed its commitment to safeguarding the rights of its children by ratifying international conventions and treaties. This policy recognized that children should be an important part of the national plans for the growth of human resource, so that children may grow up into robust citizens, physically fit and mentally healthy.

National Policy for children 2013

This policy which came to be in April 2013 protect the equality and identity of children, Children should be protected and provided with a safe environment for their growth, This policies also ensure that no child is discrimination on the basis of religion, gender, caste, place of birth, financial background, any disability. The policy also believes that it is the positive family environment for the overall development of a child.

National Plan  for SAARC Decade of Girl child 1991-2001

In 1992 the Government of India identified the need for protection of girl child. The Government prepared a separate Nation Plan for the girl child for the period 1991-2000. This plan identified three major goals.

  • Survival and protection of the girl child and safe motherhood.
  • Overall protection of the girl child.
  • Special provisions for vulnerable girl children in need of care and protection.

Similarly, there are many policies and action plans which aim at the well being of the Children

  • National Policy on Education 20193
  • National Policy on Child Labour3
  • National  Plan of Action for children 20163
  • National Population Policy 20003
  • National Health  Policy 20013

These policies thus aim at eliminating the social evils from the society.  It ensures the right of a child to the access of education, which should be free and compulsory, as provided in the constitution of India. These policies also examine and implement the objectives regarding health, it also regulate the working hours of children and prohibit their employment in hazardous conditions.3

National Commission for the Protection of Child Rights

The Ministry has enacted the Commission for Protection of Child Rights Act (CPCR), 2005 extending over India except for the state of Jammu and Kashmir under which the National Commission for the protection of Child Rights is mandated to function for the protection and promotion of child rights.

The Commission inquiry into the complaint and take sue moto notice of matters relating to-

  1. Deprivation and violation of child rights.
  2. non-implementation of the laws providing for the protection and development of children;
  3. Non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring the welfare of the children and provides relief to such children.

Childline

CHILDLINE 1098 is a phone number that spells out hope for millions of children across India. It is a 24 hour, 365 days a year, free call service for the aid and assistance of children in India. It not only reaches out for the emergency calls but also links them with the relevant services for their long term care and rehabilitation.

Conclusion

In spite of all these bits of the legal framework, there is still a scarcity which is prevailing, there are still challenges to be faced both in present and in the future. There are many circumstances where justice has been denied to the children, Social evils like child marriage and child labour are still practised in society. The reason for child labour is of course nothing but poverty; there are many instances where the sections in IPC have turned out to be vain. There are instances where a child is being kidnapped, where he/she is being killed, physically mentally or sexually abused, All these instances are still happening, it should also be taken into notice that all the above said laws are for the eradication of these crimes in the society. The rate of crimes in the society is still high in society. The law should strengthen its strictness and all the punishments should instil fear in the mind of people. In India, we follow the reformative theory which aims in the reformation of the criminals. As all these reformative efforts were of no use instead turned out to be a threat. The Deterrent theory is that theory of punishment which obstructs the crimes of wrongdoers and instils fear within them so that they act within the parameters of the law. This theory of punishment should be followed in India. There are situations where the judgment of the court had blown off the crowd which completely denied the justice to the victims.

It was in a recent judgment by the Additional Session Court (Special POCSO court) of Palatka which set three men free, who were accused of rape, sexual assault and abetment of suicide, of siblings in Walayar, Palakkad. The judge ruled out that the three women were not credible witnesses. The judge came to the conclusion that the witnesses were falsified to prove the prosecution’s case. The judge also stated that the police only had an account of people against the accused, but they didn’t have any proof linking them to the crime. By the postmortem report of the sisters, it was proven that they were raped, but at the end of the day the judgment made by the court blew off the whole crowd which also stated that the prosecution lacked scientific evidence. They have been a great influence for the accused and hence there has been the omission of the bits of facts of the case by the police and prosecution which led to such a judgment. 

Apart from the laws that I have mentioned this is the practical condition of the legal framework in our country,

References


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