All you
need to know about Child Rights in India
Introduction
to Child Rights
A child means
every human being below the age of eighteen years unless, under the law
applicable to the child, the age of majority is attained earlier.
A nation’s
children are a “supremely important national asset”, and the future well-being
of a nation depends upon how its children grow and develop.
It is the duty
of the state to look after a child to (or “intending to”) ensuring full
development of its personality.
To achieve this
goal, a state must grant certain rights to the children.
In India,
rights of citizens including that of children have been directly or indirectly
provided for by the Constitution of India.
CRC in India
1.Non-discrimination
(Article 2)
2.Best
Interest of the Child (Article 3)
3.Right to
Life Survival and Development (Article 6)
4.Right to
be Heard (Article 12)
The provisions
of the CRC have been categorized as:
1.PART I
(Article 1-41): It sets
out the rights of children and obligations of governments. The rights can
further be categorized as:
Survival
Rights: the right to
life of child and access to basic necessities to existence such as adequate
food, shelter, standard of living and medical requirements.
Development
Rights: the right to
education, to practice the religion of own choice and cultural activities,
freedom of thought and conscience, to play and leisure and to access to
information
Protection
Rights: rights that
protect children from abuses which may be consequential to several kinds of
circumstances, such as children subject to procedures of criminal justice
system, children in employment, children who are refugees, children who have
undergone abuse or exploitation.
Participation
Rights: rights of
children to participate in activities of the society, especially matters that
may affect their life, to assemble peacefully and to join associations.
2.PART II
(Article 42-45): It
contains provisions regarding implementation of the provisions of the CRC.
3.PART III
(Articles 46-54): It
includes provisions for signing the convention by parties and rules and
procedures thereafter for the purpose of ratification, enforceability,
amendment, denouncement, etc. of the convention.
Constitutional
Provisions Regarding Rights of Children
The
Constitution in its Part III (Fundamental Rights) and Part IV (Directive
Principles of State Policy) guarantees under the articles mentioned below,
rights to the children of India:
PART III:
Article 14: Citizens of India, including children,
must be treated equally before law and must be given equal protection by the
law without any discrimination or arbitrariness.
Article
15(3): Discrimination
is prohibited by the constitution. However, it shall not hold a ground to
prevent the state from making special provisions for women and children for
their benefit.
Article 21: No person shall be deprived of his life
or personal liberty without due process of law. A person has the right to
adequate food, shelter, clothing, etc. Such life shall not mean mere animal
existenc
Article 21A: The State shall provide free and
compulsory education to all the children falling in the age group of six to
fourteen years in such manner as the State may, by law, determine.
Article 23: Prohibits trafficking in human beings
and beggar or any other form of forced labour.
Article 24: Prohibits employment of children under
the age of fourteen years in a factory, mine or in any other hazardous
employment.
PART IV:
Article 39
(e): The state shall
thrive to ensure that the tender age of children is not abused and that
citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength.
Article 39
(f): The state shall
ensure children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity. It must also be ensured that childhood
and youth are protected against exploitation and against moral and material
abandonment.
Article 41: The state is obliged to, within its
economic capacity and development, secure provisions for educational
opportunities and facilities.
Article 44: The state shall make all possible
efforts to secure a Uniform Civil Code for all the citizens, thereby implying a
uniform code for the adoption of children.
Article 45: The state shall endeavour to provide
free and compulsory education to children until they attain they age of
fourteen years.
Article 46: It is the duty of the state to promote
the educational and economic interests of weaker sections of the society with
special care and therefore, the children therein.
Article 47: The state is duty-bound to raise the
level of nutrition and the standard of living and to improve public health,
including that of children.
Article 51
(c): International laws
and treaties shall be respected by the state to every possible extent, including
the CRC and its optional protocols, Optional Protocol to CRC on Sale of
Children, Child Prostitution and Child Pornography and Optional Protocol to CRC
on the Involvement of Children in Armed Conflict.
Article 51 A
(k): It shall be the
duty of every citizen of India who is a parent or guardian to provide
opportunities for education to his child or, as the case may be, ward between
the age of six and fourteen years.
Article 243G provides for the institutionalization of child care by seeking to entrust programs of Women and Child Development to
Panchayat (Item 25 of Schedule 11).
Right to
Constitutional Remedies when Rights of Children are Infringed
If the
above-mentioned fundamental rights are infringed, the appropriate courts may be
approached. The constitution has provisions for constitutional remedies in
article 32 and article 226.
Article 32: A person has right to move to the
Supreme Court to protect his fundamental rights. It is also a fundamental
right.
Article 226: A person my approach High Court by virtue
of this article to get his rights protected, not necessarily fundamental
rights.
The courts, for
the purpose of protecting the rights they are authorized to, may issue writs:
Habeas
Corpus: literally
translating to “you may have the body”, a person, whether or not a child, who
is detained, whether in prison or privately, is directed to be produced before
the court. If found that such detention was illegal, he is released.
Mandamus: meaning ‘we command’, mandamus issued
by Supreme Court or High Court orders the lower courts/tribunals/public
authorities to perform a public or statutory duty which they are obliged to
perform but have failed to do so.
Prohibition: it is issued by the Supreme Court or
the High Courts, to prohibit inferior courts under them from transgressing the
limits or powers vested in them.
Certiorari: it enables a superior court to quash an
order already passed by the inferior court/tribunal/quasi-judicial authority.
Quo
warranto: it literally
means by what right. It is issued to restrain a person from holding a public
office he is not entitled to hold.
The writs may
be extended to the lower courts by the parliament.
Since children
are unable to access the legal system by themselves, a Public Interest
Litigation may be filed in the Supreme Court or the High Courts by a public
spirited individual or a non-governmental organization against the Central
Government or State Government or any of their respective agencies by the
virtue of A.32 and A.226 for protection of the rights of the Children.
Other
Legislations/Policies in India
Some of the
important legislations and policies in India to safeguard the rights of
children are:
Indian Penal
Code, 1860: The Indian
Penal Code by its various sections specifically protects children and their
rights. Some of these sections are:
S.83: 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.
S.292 &
293: Selling, distribution, publishing, public exhibition or circulation of
obscene material such as books, magazines, drawings, paintings, etc. is prohibited
under Section 292. Whoever sells, lets to hire, distributes, exhibits or
circulates to any person under the age of twenty years any such obscene object
as is referred to in Section 292, or offers or attempts so to do, shall be
punished more severely.
S.305: Abetment
of the commission of suicide of a person below the age of 18 years is
punishable under this section.
S.317:
Abandonment or exposure of a child for the purpose of abandonment by any of the
parents or a person having the care of such child is a punishable offence.
S.361: This
section deals with punishing offenders who kidnap a child (male if below 16
years of age and female if below 18 years of age).
S.363A:
Kidnapping or maiming children for the purpose of begging has been stated to be
a punishable offence under this section.
S.366A:
Inducing of a minor girl under the age of 18 years to do any act that may force
or seduce her to illicit intercourse with another person is punishable under
S.366A.
S.366B: It is
an punishable offence to import a girl under 21 years of age into India from a
country outside India or from Jammu and Kashmir intending that she may be
forced or seduced to illicit intercourse with another person.
S.369:
Kidnapping a child under the age of 10 years with the intention to steal from
such child is an offence.
S.372 &
373: Selling, buying or hiring a person under 18 years of age for the purpose
of prostitution or illicit intercourse with any person, or for any unlawful or
immoral purpose is a punishable offence.
S.375: A man is
said to commit “rape” if has sexual intercourse with a woman with or without
her consent when she is under the age of 16 years.
S.376: The
section provides for stringent punishments if:
S.376C: When
the Superintendent or manager of a remand home or any other place of custody
established under law of ‘children’s institution’ induces or seduces a woman
into sexual intercourse by taking advantage of his official position, he is
entitled to stringent punishment under this section.
These sections
specifically protect the rights of children. Other sections applicable to
punish offenders for a crime can also be invoked to protect the children
against such offenders.
Guardians
and Wards Act, 1890:
The act supersedes all the laws regarding guardianship of a child. It is a
universal code specifically designed for Muslims, Parsis, Christians and Jews
as their personal laws don’t allow full adoption but only guardianship.
Child
Marriage Restraint Act, 1929 (Amended in 1979): It restraints child marriage until the
minimum age, i.e. 21 for male and 18 for female, has been attained by them. It
applies to the people of all the religions.
Immoral
Traffic (Prevention) Act (Amended in 1986), 1956: This act with respect to children deals
with person(s) who procure or attempt to procure any child for prostitution or
person(s) who are found with a child in a brothel (it is presumed child has
been detained for the purpose of prostitution) and punishes them. It also
provides for the due care of rescued children.
The Women’s
and Children’s (Licensing) Act, 1956:
The Act was enacted with an object to protect women and children from
exploitation and inhuman activities going on in institutions. It mandates the
institutions for women and children to get a license from the licensing authority
before establishing or maintaining the institution.
Probation of
Offenders Act, 1958:
This act with the help of the Juvenile Justice Act, 2000 tries to ensure that
no person under the age of 21 years faces imprisonment.
National
Policy for Children, 1974:
It is the first written policy for the children in India. It aims at providing
better enforcement of constitutional rights of the children along with those
granted by the CRC. Some of the provisions include free education,
comprehensive health and nutritious plans, etc.
Bonded Labor System (Abolition) Act, 1976:
The act aims at eradicating the bonded labour system in India which exploits
the weaker sections of society, especially children.
Child Labor (Prohibition and Regulation) Act, 1986: This act regulates the working conditions for children in
employment and prohibits working of children in certain kinds of employments.
National
Policy on Education, 1986:
The policy is extensive in nature and elementary, university and adult level
education, all fall under its scope. It tries to remove inequality by making
special provisions for women and other weaker sections of society such as
Schedule Castes, Schedule Tribes, etc.
National
Policy on Child Labour, 1987:
The act endeavours to eradicate child labour from Indian society wherever
necessary.
Juvenile
Justice (Care and Protection of Children) Act, 2000: This act is one of the important acts
in India for the children in need of care and protection and also children in
conflict with the law. It requires that the state provides free legal support
to the juveniles, and proper care and protection is provided to those in need.
It also calls for a child-friendly approach in adjudication and disposition of
matters involving children.
The
Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment
Act, 2000: The main
objective of the Act is to regulate and prevent the pre-natal sex determination
in order to prevent female foeticide.
National
Health Policy, 2002:
This is the second National Health Policy, after the first in 1983. The policy
provides for Universal Immunization Programmes, health care related education
in schools and free regular health checkups at schools etc.
Protection
of Children from Sexual Offences Act, 2012: The act aims at punishing the offenders who are guilty of
sexual offences against children below the age of 18 years of age. It also lays
down procedures for the trial, such as, the name of child victim shall not be
disclosed, proceedings of the case are to be conducted in court with cameras
recording the trial, accused is not to be kept in-front of the child victim
during examination or cross-examination, etc.
Some more
laws and policies in India for children can be found in:
1. Factories Act, 1948 (Amended in 1949,
1950 and 1954)
2. Hindu Adoption and Maintenance Act,
1956
3. Orphanages and Other Charitable Homes
(Supervision and Control) Act, 1960
4. Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1987
5. Schedule Caste and Schedule Tribes
(Prevention of Atrocities) Act, 1989
6. Infant Milk Substitutes, Feeding
Bottles and Infant Foods (Regulation of Production, Supply and Distribution)
Act, 1992
7. National Nutrition Policy, 1993
8. Transplantation of Human Organ Act,
1994
9. Information Technology Act, 1996
10. The Pre-Natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Amendment Act, 2002
11. National Charter for Children, 2003
12. National Plan of Action, 2005
13. Prohibition of Child Marriage Act, 2006
14. Juvenile Justice (Care and Protection of
Children) Act (Amendment, 2006), 2006
15. The Right of Children to Free and
Compulsory Education Act, 2009
16. The Child Labour (Prohibition and
Regulation) Amendment Bill, 2012
17. The National Policy for Children, 2013
18. Juvenile Justice Rules Gazette
Notification, 2016
19. The Rights of Persons with Disabilities
Bill, 2016
Child
Protection & Child Rights
The articles
are divided into two categories: Fundamental Rights and Directive Principles of
State Policy.
Fundamental
Rights
Article 14- The
State shall not deny to any person equality before the law or the equal
protection of laws with in the territory of India.
Article 15- The
State shall not discriminate against any citizen..Nothing in this Article shall
prevent the State from making any special provisions for women and children.
Article 21-No
person shall be deprived of his life or personal liberty except according to
procedure established by law.
Article 21
A-The State shall provide free and compulsory education to all children of the
age of 6-14 years in such manner as the State may, by law, determine.
Article
23-Traffic in human beings and beggary and other forms of forced labour are
prohibited and any contravention of this provision shall be an offence
punishable in accordance with the law.
Article 24-No
child below the age of 14 years shall be employed to work in any factory or
mine or engaged in any other hazardous employment.
The
Constitution (86th Amendment) Act was notified on 13th December 2002, making
free and compulsory education a Fundamental Right for all children in the age
group of 6-14 years.
Directive
Principles
Article 39(e)
and (f) provides that the State shall, in particular, direct its policy towards
securing to "ensure that the health and strength of workers, men and women
and the tender age of children are not abused" and "that the citizens
are not forced by economic necessity to enter avocations unsuited to their age
or strength" and that "the children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and
dignity" and that the childhood and youth are protected against
exploitation and against moral and material abandonment.
Article 45- The
State shall endeavour to provide early childhood care and education for all
children until they complete the age of six years.
Article 47- The
State shall regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as among its primary
duties
Article 243G
read with Schedule 11 - provide for institutionalization of child care by
seeking to entrust programmes of Women and Child Development to Panchayat (Item
25 of Schedule 11), apart from education (item 17), family welfare (item 25),
health and sanitation (item 23) and other items with a bearing on the welfare
of children.
Page 3
Acts and Rights
Bonded Labour
System (Abolition) Act, 1976
The Bonded
Labour System (Abolition) Act 1976 talks of the illegality of slave or bonded
labour with reference to both adults and children. For more information visit
Bonded Labour System (Abolition) Act, 1976
Factories Act,
1948
The Factories
Act is an extensive and lengthy act that covers an endless number of concerns
for labour working in factories. The following is an overview of provisions in
the act that are relevant to children ages 0-18.
The Act defines
a child as a person who has completed him/her 15th year of age. It defines an
adolescent as one who is has completed his/her 15th year of age but not
completed his/her 18th year of age. A young person is defined as either a child
or an adolescent.
According to
this Act it is the duty of a certified medical practitioner or surgeon to
examine and medical condition and certifies all young people working in the
factory. These examinations take place where a young person is or is going to
be engaged in work that is injurious to his health.
Under this Act
a young person may not clean or lubricate the parts of any moving machinery that
is likely to cause them injury.
Infant Milk
Substitutes, Feeding Bottles and Infant Foods
Malnutrition is
responsible for 55% of the infant mortality seen in India. Breastfeeding
exclusively for the first six months of an infant's life and complementary feeding
up to two years age is essential to battle malnutrition. The purpose of the
Infant Milk Substitutes, Feeding Bottles and Infant Foods Act 1992 and its 2003
amendment is to promote breast feeding of new born children and infants. It
also looks to ensure that infant foods are regulated and used appropriately.
Pre-natal
Diagnostic Techniques Act, 1994
Families who
discriminate against girl children prefer to abort the child before it is born.
The boy child is preferred since he will carry on the family name, provides for
the elders and is not a burden on the family at the time of marriage. In 1994
the Government of India in an attempt to stop female foeticide passed the
Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act. In
2002 the act was amended.
The act firstly
outlines provisions about the regulation of genetic counselling clinics,
genetic laboratories and genetic clinics. All such clinics have to be
registered under this act, and all medical professionals employed must have the
appropriate qualification to conduct pre-natal diagnostic techniques.
The act
prohibits the medical personnel from conducting or helping anyone conduct
sex-selection.
Persons with
Disabilities Act, 1995
This act is to
safeguard the rights of Persons with Disabilities (PWD). On the 1st of January
1996 the Government of India passed the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act 1995. The
following is an outline of the provisions in this law that pertains to children
below the age of 18.
In this act
disability is defined as blindness, low vision, leprosy-cured, hearing
impairment, loco-motor disability, mental retardation and mental illness. The
act calls for the government to take the necessary steps to ensure the
prevention of disabilities. In accordance with this agenda, the government must
screen all the children at least once a year to determine risk factors that
lead to disability and attempt to protect the child from such factors. It is
also necessary for the state to take measure to reduce risks to prenatal and
post natal mothers and child.
Prohibition
of Child Marriage Act, 2006
Child marriage
is also associated with other problems like dowry and child widowhood. It is
also associated with malnutrition, poor health of mothers and high fertility
and hence over-population. According to the Act, a child is a male who has not
completed twenty one years of age and a female who has not completed eighteen
years of age. Child marriage is a contract between any two people of which
either one or both parties is a child. Child marriage that took place before or
after this Act can be made void by the person who was a child at the time of
marriage. But the marriage must be voided before the person who was a child
completes their second year of maturity.
Immoral
Traffic Prevention Act, 1986
In 1956, India
passed the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA).
The Act was further amended and changed in 1986, resulting in the Immoral Traffic
Prevention Act also know as PITA. The Act defines child as any person who has
completed eighteen years of age. The first section of the act has provisions
that outline the illegality of prostitution and the punishment for owning a
brothel or a similar establishment, or for living of earnings of prostitution
as is in the case of a pimp. Section five of the act states that if a person
procures, induces or takes a child for the purpose of prostitution then the
prison sentence is a minimum of seven years but can be extended to life. To
ensure that the people in the chain of trafficking are also held responsible
the act has a provision that states that any person involved in the recruiting,
transporting, transferring, harbouring, or receiving of persons for the purpose
of prostitution if guilty of trafficking. In addition any person attempting to
commit trafficking or found in the brothel or visiting the brothel is
punishable under this law.
Guardians
and Wards Act, 1890
The Guardians
and Wards Act, 1890 was a law to supersede all other laws regarding the same.
It became the only non-religious universal law regarding the guardianship of a
child, applicable to all of India except the state of Jammu and Kashmir. This
law is particularly outlined for Muslims, Christians, Parsis and Jews as their
personal laws don't allow for full adoption, only guardianship. It applies to
all children regardless of race or creed.
According to
this Act a minor/child is any person who has not completed 18 years of age. The
court or appointed authority has the ability to decide the guardian of a child
by appointing one a guardian or removing another as a guardian. No order will
be passed without an application. Applications should contain all possible
information about the child and guardian and reasons for guardianship. Once the
court admits the application into court, then the court will set a date for the
hearing. The court will hear evidence before making a decision. A minor and his
property may have more than one guardian. The court must work in the interest
of the minor, taking into consideration the age, sex, religion, character of
the guardian, the death of the parent(s), relation of the child to the
guardian, etc. The minor's preference may be taken into consideration.
Hindu Adoption
and Maintenance Act, 1956
Adoption
according to Indian law is a personal act and hence is governed by the various
personal laws of the different religions. Adoption is not permitted in
accordance 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.The following is an outline of the provisions in this law
that pertains to children below the age of 18.
This act
applies to all Hindu, Buddhists, Sikhs and Jains by religion. A child,
legitimate or illegitimate, whose parent(s) or guardians were Hindu, Buddhist,
Jain or Sikh is also considered under this act. A person who converted to these
religions is also considered under this act. According to the act a 'Hindu' is
any person to whom this act applies. In this act a minor is any person who has
not completed 18 years of age. This act supersedes any act concerning Hindu
adoption and maintenance.
Scheduled
Castes and Scheduled Tribes Act, 1989
The Act lists a
description of all acts that are considered to be atrocities under this law.
Some of these provisions are punishable up to five years and a fine such as
forcing a SC or ST to eat or drink non-edible or obnoxious substances, forcibly
parading a SC or ST person naked or any other act which is derogatory to human
dignity, the use of or transfer of allotted land belonging to and SC or ST
member, etc. Other atrocities have different punishments such as a person who
gives false evidence against a SC/ST member in a court case will be punished
with life imprisonment and a fine, arson of a SC/ST property is punishable up
to seven years and a fine, any crime listed in the penal code that describes a
punishment of ten year imprisonment or more and is committed against a SC/ST
member or to his/her property is sentences to life imprisonment and fine under
this act.
The India
Penal Code and Child related offences
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. 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.
Section 315 and
316 discusses the offence of foeticide and infanticide. If a person commits an
act with the intention of preventing the child from being born alive or an act
that results in the death of the child after birth, that person is committing
foeticide/infanticide as long as they do not do it in the interest of the
mother's health or life. 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. 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
Constitutional
Provisions:
Preamble
Commitment: Justice, liberty, equality, & fraternity for all the citizens
including children are the main purpose of the Constitution.
Article 14:
Equality before law & equal protection of laws. It is available to every
person including children.
Article 15 (3):
empowers the State to make special legal provision for children. It makes
mandate to the government to ensure children’s welfare constitutionally.
Article 21: it
mandates free & compulsory education for all the children in the age group
of 6- 14 yrs.
Article 23:
puts total ban on forced labour & is punishable under the Act.
Article 24:
prohibits employment of children in hazardous factories below the age of
14yrs.; e.g.: mine, match industries etc.
Article 51 A
clause (k) & (j): the parent or the guardian to provide opportunities for
education to his child or as case may be ward between the age of 6- 14 yrs.
Directive
principles in Constitution of India also provide protection for the children
such as, Article 39 (e), Article 39 (f), Article 41, Article 42, Article 45,
& Article 47.
There are many
Acts enacted in India for the protection children rights:
The Factories
Act, 1948.
The Probation
of Offenders Act, 1959.
The Child
Labour Act, 1986.
The Child
Marriage Restraint Act, 1986.
The Juvenile
Justice Act, 2000.
The Pre-
Conception & Pre- Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 2002 and many others.
National Policy
for Children (NCP), National Institute of public Co-operation & Child Development
(NIPCCD), The Integrated Child Development Services are polices made by
Government. Even NHRC & UNICEF are also organization, takes special efforts
to protect children rights.