LEGAL FRAMEWORK FOR THE
PROTECTION OF THE RIGHTS OF
CHILDREN
LEGAL METHODS ASSIGNMENT
Submitted By,
Alok Antony
Roll no. 1516
Semester I
BA.LLB (Hons.)
The National University of Advanced Legal Studies, Kochi
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Legal Framework for the Protection of Rights of Children, Papers of Human Rights
Legal Framework for the Protection of Rights of Children. This document focuses on the legal framework that is existent in India for the protection of Child rights which includes the provisions from the Indian Constitution, various acts legislated by the parliament, the judgments of the supreme court, provisions under the IPC and CrPC and the various policies by the Government.
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LEGAL FRAMEWORK FOR THE
PROTECTION OF THE RIGHTS OF
CHILDREN
LEGAL METHODS ASSIGNMENT
Submitted By,
Alok Antony
Roll no. 1516
Semester I
BA.LLB (Hons.)
The National University of Advanced Legal Studies, Kochi
Acknowledgement
First, I thank God for his blessings in the completion of this assignment, without
which I wouldn’t have completed it.
In preparation of my assignment, I had to take the help and guidance of some
respected persons, who deserve my deepest gratitude. As the completion of this
assignment gave me much pleasure, I would like to show my gratitude Prof. Dr.
Jacob Joseph, Professor and Director in Charge of Centre for Law and Agriculture,
The National University of Advanced Legal Studies, Kochi for giving me good
guidelines for assignment throughout numerous consultations. I would also like to
expand my gratitude to all those who have directly and indirectly guided me in
writing this assignment.
Many people, especially my classmates have made valuable comment suggestions on
my assignment which gave me an inspiration to improve the quality of the
assignment; I express my sincere gratitude towards them.
Definition of a Child:
According to Article 1 of the United Nations Convention of Child Rights, “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.”^4 According to Section.3 of the Indian Majority Act, “Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.”^5 Thereby mentioning that every person below the age of 18 is a child. According to the Child Labour (Protection and Regulation) Act, 1986 states that “a child is a person who has not completed his fourteenth year of age.” 6 According to the Plantation Labour Act 1951 has a separate definition for child, adolescent and adult. According to it “‘child’ means a person who has not completed his fourteenth year.^7 ‘Adolescent' means a person who has completed his fourteenth year but has not completed his eighteenth year.^8 ” According to the Juvenile Justice (Care and Protection of Children) Act, 2015, “a child means a person who has not completed eighteen years of age.”^9 In the Protection of Children from Sexual Offences Act of 2012 has given the definition of a child as “any person below the age of eighteen years.”^10 But the Constitution of India does don't provide for an accurate definition of a “child,” but puts down the different provisions for the protection and what the state can do protect their rights. (^4) Article 1 of the United Nations Convention on Rights of the Child, 1989 (^5) Indian Majority Act, 1885, sc. (^6) Child Labour (Protection and Regulation) Act, 1986, sc.2 (ii) (^7) The Plantation Labour Act, 1951, sc.2(c) (^8) The Plantation Labour Act, 1951, sc.2(a) (^9) Juvenile Justice (Care and Protection of Children), 2000 sc.2 (12) (^10) Protection of Children from Sexual Offences, sc.2(d)
Provisions in the Constitution of India
The Supreme Law of the land lays down these provisions for the protection of children and their rights:
- Right to free and compulsory elementary education for all children in the 6-14 year age group (Article 21 A).^11 This is perhaps the most important right of a child as far as their future is concerned. Every child needs to have a compulsory education to enable them to make something of their life and lead a life with dignity. This was inserted by the 86th Constitutional Amendment in 2002, which provides for free and compulsory education for all children between the ages of 6 and 14. Furthermore, the government has come out with the Right of Children to Free and Compulsory Education (RTE) Act, 2009, which has the necessary legislation for Article 21A, which also prescribes the standard of the education so provided by the state. This has been so legislated as a result of the famous P. Unni Krishnan v. State of Andhra Pradesh.^12
- Right to be protected from any hazardous employment till the age of 14 years (Article 24).^13 As the provision of the constitution mandates that no child below the age of14 shall be employed under hazardous conditions. Several Supreme Court cases have been dealt with child labour, mainly the People’s Union for Democratic Rights v. Union of India & Ors^14 , which dealt with the issue of children being employed during the construction work during the 1982 Asian Games. In M.C. Mehta v. State of Tamil Nadu^15 , the Supreme Court decided that children hold not be employed in factories that have hazardous employment conditions.
- Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age or strength (Article 39(e)).^16
- Right to equal opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and moral and material abandonment (Article 39 (f)).^17 These two directive principles are followed by the state to make necessary laws and legislations regarding the exploitation of children in workplaces by putting them for employment in hazardous conditions. This can be seen as the different ruling governments coming out with different (^11) Constitution of India, 1950, p. (^12) AIR 1993 SC 2178 (^13) Constitution of India, 1950, p. (^14) AIR 1982 SC 1473 (^15) AIR 1997 SC 699 (^16) Constitution of India, 1950, p. (^17) ibid
Legislations Brought Out:
Several legislations have been brought out by different governments in power for the protection of the rights of children. Many Legislations have been brought out by different governments of the country since the early 1890s. Some of the important ones are: The Guardian and Wards Act of 1890 : This Act deals with the qualifications, appointment, and removal of guardians of children by the court^19 and the duties of the guardians towards the children.^20 The Children (Pledging of Labour) Act of 1933 : This Act has been enacted with an eye to prohibit agreements that pledge the labour of a child. The Acts state that every agreement that has been made with the pledging of labour of child is null and void.^21 According to the Act, it can penalize both the employer and the guardian, the parent who pledges the child. The Employment of Children Act of 1938 : This Act has been enacted to prohibit the employment of children in hazardous conditions to those who have not completed the age of fifteen years, the ages between fifteen and seventeen have limited protection under the Act, while those who apprentices or who have received vocational training to work^22. The Factories Act of 1948 : This Act is subsequent legislation of the previous Factories Act of 1881 by the British Raj in India. According to this Act, no person who has not completed fourteen years for age shall be strictly prohibited from working in a factory. Furthermore, it provides for stringent rules to employers from exploiting children that are above the age of fourteen by certifying them with a fitness certificate.^23 The Mines Act of 1952 : According to this Act, “No Person below the age of eighteen shall be allowed to work in any mine.” Section 68 of the same Act provides for the punishment of employing persons below the age of eighteen years in mines^24. But the ground reality of the implementation of such pun shipment is pointless, as the fine is placed at five hundred rupees, and (^19) The Guardian and Wards Act, sc. (^20) The Guardian and Wards Act, 1890, sc. (^21) The Children (Pledging of Labour) Act, 1933, sc. (^22) The Employment of Children Act, 1938 (^23) The Factories Act, 1938, Chapter VII (^24) The Mines Act, 1952, sc.
as compared to the wages paid to a child labourer, it does not make a big difference to the employer. The Apprentices Act of 1961 : The Act lays down the minimum qualifications to be engaged as an apprentice. It states that “A person shall not be qualified for being engaged as an apprentice if he is not less than fourteen years of age, and for designated trades related to hazardous industries, not less than eighteen years of age.”^25 The Child Labour (Prohibition and Regulation) Act of 1986 : This is perhaps one of the most important legislation that is concerned with the prohibition of child labour^26. According to this Act, the law prohibits the employment of persons who are below the age of fourteen. Furthermore, it provides the list of hazardous conditions or processes a child is not deemed fit to do. 27 The Act came into force in December 1986 and henceforth had been a very useful tool in eradicating child labour from the country, though there are still instances nowadays too. This lays down certain objectives for the eradication of child labour. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act of 1992 : This Act regulates the production, supply, and distribution of infant milk substitutes, feeding bottles & infant foods with a view to the protection & promotion of breastfeeding & ensuring the proper use of infant foods & other incidental matters.^28 The Pre-Natal Diagnostic Technique (Regulation and Prevention of Misuse) Act of 1994 : This Act provides for the regulations of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic or chromosomal abnormalities or certain congenital malformation or sex-linked disorders & for the prevention of the misuse of such techniques for the purpose of pre- natal sex determination leading to female foeticide. Juvenile Justice (Care and Protection of Children) Act of 2015 : This Act deals with the juveniles who are in need of care and protection, by means of providing needed care, their protection and catering to the needs of a developing child. The First Juvenile Act came in the form of the Children Act of 1960, which was subsequently repealed by the Juvenile Justice Act of 1986. But after the United Nations Convention of Child (^25) The Apprentices Act, 1961, sc. (^26) The Child Labour (Prohibition and Regulation) Act, 1986, sc. (^27) ibid (^28) The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992
Children Act of 1960 : The Children Act, 1960 mainly focuses on the establishment of children’s courts, Child Boards, Children's homes, Special homes and observation homes^39 in every state. Moreover, it deals with the provisions regarding delinquent children.^40 Right to Education Act, 2009 : The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE) was enacted on 4 August 2009, which describes the modalities of the importance of free and compulsory education for children between the ages of 6 to 14 years in India under Article 21A of the Constitution of India.^41 India became one of 135 countries to make education a fundamental right of every child when the act came into force on 1 April 2010. According to the RTE Act, 2009, not only does it make education a fundamental right, but it specifies certain minimum norms to be followed in elementary educational institutions. Protection of Children from Sexual Offences Act of 2012: This Act deals with the provisions regarding the protection of children from sexual offenders by addressing the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent legal provisions. It defines different forms of sexual abuse, including penetrative^42 and non-penetrative assault, as well as sexual harassment^43 and pornography^44 , and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority with the child, like a family member, police officer, teacher, or doctor. Moreover, the Act provides for the establishment of special courts to try the offences under the Act. It also provides certain rules for the police to follow the investigations for offences^45 under this Act. The Commission for Protection Child Rights Act of 2005 : This Act has been enacted in the Parliament with an eye to establish the National Commission for Protection of Child Rights^46 and State Commission for Protection of Child Rights.^47 The functions of the commissions mainly include examining and reviewing the safeguards provided by law that is in force for the protection of the rights of children^48 , inquire into child right violations and recommend the initiation of the (^39) The Children Act, 1960, Chapter II (^40) The Children Act, 1960, Chapter IV (^41) Constitution of India, 1950, Art. 21-A (^42) Protection of Children from Sexual Offences Act, 2012, sc. (^43) Protection of Children from Sexual Offences Act, 2012, sc. (^44) Protection of Children from Sexual Offences Act, 2012, sc. (^45) Protection of Children from Sexual Offences Rules, 2012 (^46) The Commissions for Protection of Child Rights Act, 2005, sc. (^47) The Commissions for Protection of Child Rights Act, 2005, sc. (^48) The Commissions for Protection of Child Rights Act, 2005, sc.13(a)
proceedings^49 against the same and presenting an annual report regarding the work of the Commission^50 for that year to the government and the ministry concerned.
Judicial Intervention
Apart from the legislation that has been brought out by the government, there is something important to notice that judicial intervention has also played an important role in working towards the protection of the rights of children. Some of the landmark judgments which brought about a change in the protection of the rights of the children are: Sheela Barse v. Union of India, 1986: This case talks about the conditions of the juveniles who are spending their detention in jails. The apex court ordered in favour of the petitioner that there should ensure strict compliance with the rules and follow the sections laid down in the Children Act of
- Furthermore, it direct that every District and Sessions Judge should visit the District Jail at least once in two months^51 and had made a direction to the State Legal Aid Boards to provide the facility of lawyer's service concerning under trial children.^52 It was in this Judgment that Justice P.N. Bhagwati said: “It is an elementary requirement of any civilized society and it has been so provided in various statutes concerning children that children should not be confined to jail because incarceration in jail has a dehumanizing effect and it is harmful to the growth and development of children.”^53 Unni Krishnan, J.P. v. the State of A.P: This was one of the cases which established the Right to Education as one of the fundamental rights according to Article 21-A of the Constitution of India. According to Justice Mohan S, Article 21 has been interpreted by this Court to include the right to live with human dignity and all that goes along with it. ‘The “right to education” flows directly from right to life.’ In other words, ‘right to education’ is concomitant to the fundamental rights enshrined in Part III of the Constitution.^54 Bachpan Bachao Andolan v. Union of India : The Supreme Court discussed the issue of trafficking, factors that cause trafficking, available legislations, India’s obligations under (^49) The Commissions for Protection of Child Rights Act, 2005, sc.13 (c) (^50) The Commissions for Protection of Child Rights Act, 2005, sc. (^51) Sheela Barse v. Union of India, 1986 AIR 1986 SC 1773 (^52) Sheela Barse v. Union of India, 1986 AIR 1986 SC 1773 (^53) Sheela Barse v. Union of India, 1986 AIR 1986 SC 1773 (^54) Unni Krishnan J.P v. State of A.P, AIR 1993 SC 2178
so that fallen women surpass trafficking of their person from exploitation; contribute to bring up their children; live a life with dignity, and not to continue in the foul social environment. Equally, the children have the right to equality of opportunity, dignity, and care, protection, and rehabilitation by the society with both hands open to bring them into the mainstream of social life without pre-stigma affixed on them for no fault of her/his. The Convention on the Right of the Child, the Fundamental Rights in Part III of the Constitution, Universal Declaration of Human Rights, the Directive Principles of State Policy are equally made available and made meaningful instruments and means to ameliorate their conditions — social, educational, economic and cultural, and to bring them into the social stream by giving them the same opportunities as had by other children."
Provisions in the Indian Penal Code and the Code of Criminal
Procedure
The Various Legal Provisions laid down in the Indian Penal Code and the Code of Criminal Procedure. Section 82 of IPC: Section 82 of the Indian Penal Code, nothing is an offence which is done by a child under seven years of age.^59 This is the application of the legal maxim “Doli incapax,” which essentially means that a child is incapable of committing a crime. Section 83 of IPC: This section of the Indian Penal Code I yet another application of the above maxim “Doli incapax.” According to this section, nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.^60 Section 89: This essentially states that anything that is not done in good faith against the person under twelve years of age by any person who has legal custody of that child is an offence.^61 Section 317: This is the section that deals with the abandonment of children under the age of twelve by the parent or whoever is the legal guardian of that child. The section not only deals with the offence but also says about the intention to commit the offence.^62 (^59) The Indian Penal Code, 1860, sc. (^60) The Indian Penal Code, 1860, sc. (^61) The Indian Penal Code, 1860, sc. (^62) The Indian Penal Code, 1860, sc.
Section 361 of IPC: This section deals with the provisions regarding the kidnapping of minors, sixteen in the case of males and eighteen in the case of females.^63 Section 363 A of IPC: This section deals with kidnapping or maiming a minor for purposes of begging.^64 Section 369 of IPC: Section 369 deals with kidnapping or abducting a minor with an intent to steal from that minor.^65 Section 370(4), (5), (6) of the IPC: The section mainly deals with the trafficking of persons and sub-sections (4) deals with trafficking of a minor while^66 (5) deals with trafficking of more than one minor^67 and (6) deals with the trafficking of a minor in more than one occasion.^68 Section 372 of IPC: This section focuses on the offence of selling minors for the purposes of prostitution.^69 Section 373 of IPC: This section deals with the offence of buying minors for the purpose of prostitution.^70 Section 27 of the CrPC: Section 27 of the Code of Criminal Procedure provides for the jurisdiction in the case of juveniles. It states that any offense not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the court is under the age of sixteen years, maybe tried by the court of' a Chief- Judicial Magistrate, or by any court^71 specially empowered under the Children Act,
1960.^72
Policies implemented by the Government for keeping up the welfare
and protecting the rights of children
There are several government campaigns, schemes, policies and Action plans that reaffirm the commitment of keeping up the welfare and protecting the rights of children. National Policy for Children, 2013: (^63) The Indian Penal Code, 1860, sc. (^64) The Indian Penal Code, 1860, sc.363 A (^65) The Indian Penal Code, 1860, sc. (^66) The Indian Penal Code, 1860, sc.370(4) (^67) The Indian Penal Code, 1860, sc.370(5) (^68) The Indian Penal Code, 1860, sc.370(6) (^69) The Indian Penal Code, 1860, sc. (^70) The Indian Penal Code, 1860, sc. (^71) Code of Criminal Procedure, 1976, sc. (^72) The Children Act of 1960
Conclusion
Children can no longer be considered as passive recipients of services. Governments and civil society must accept children as partners and facilitate their participation in matters which affect their lives. The challenge is, therefore, to change the mindset that children can no longer be objects of charity, philanthropy, and welfare. They have rights, and the government, civil society, and NGOs are obliged to provide for them. There must be legislative, administrative, and judicial support to implement the policies, plans, and legislation in the interest of the child. The ideals and norms outlined in emphasized Constitution, national laws and case laws, international conventions, regulations, Policies. And practices have addressed norms and issues relating to children and have contributed considerably towards the betterment of children. We also need other means like political, psychological, managerial, economic, social, and financial to implement the best interest of the child. Public interest litigation has been used beneficially to realize the protection of the rights of children. The Supreme Court of India has, in recent years, used the directive principles to expand fundamental rights to include socio-economic rights. Here is a dire need for correcting legal perspectives both substantive and procedural, and to foster, adopt, and create child-centered approaches and institutions. Accountability has to be fixed for the non-implementation of legislation. Legal education and research should include child rights advocacy. All this requires reallocation of resources for children. It is essential that the children are placed high on the political agenda of development. Only then can we can assure the complete protection of the Rights of the Child.