Friday, December 03, 2021

Rights of the Child under Indian Constitution

By EMN Updated: Sep 25, 2013 8:54 pm


[dropcap]W[/dropcap]HILE framing the Constitution, framers were very much influenced by the concept of Human Rights. The Constitution of India, in a number of articles has spelled out the rights of the children. To mention a few, Article 15 prohibits traffic in human beings and forced labour. Article 24 forbids employment of children below the age of 14 years in factories, mines, and other hazardous occupations. This provision is in the interest of health and strength of young persons and is in keeping with the provisions of the directives in Article 39(e) and (f) of the Constitution where the state, in particular, direct its policy towards securing – (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) 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.
In M.C. Mehta Vs State of Tamil Nadu, the Supreme Court noted that menace of child labour was wide spread. Therefore it issued wide ranging directions in the context of employment and exploitation of children in Sivakasi prohibiting children below the age of 14 and making arrangement for their education by creating a fund and providing employment of the parents of able bodied adults in the family. Article 39 therefore, specifically requires the state to ensure for the people adequate means of livelihood, fair distribution of wealth, equal pay for the equal work and protection of children and labour.
Article 45 stated that the state shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Article 47 requires the state to raise the level of nutrition and the standard of living of the people including children. Spelling out the fundamental duties of every citizen in Article 51-A, it is stated that a parent or guardian should provide opportunities for education to his child, or as the case may be, between the age of six and fourteen years.

Besides the constitutional safeguards and the protection of children wide range of laws have been made to protect and promote the rights of the child. Under these laws, the children are entitled to protection and safeguards, special care and adequate assistance. The following are the principal legislations seeking to protect the child: –
The Factories Act, 1948; The Plantations Labour Act, 1951; The Minimum Wages Act, 1952; The Mines Act, 1952; The Hindu Minority and Guardianship Act, 1956; The Probation of Offenders Act, 1958; The Child Labour (Prohibition and Regulation) Act, 1986; The Child Marriage Restraint (Amendment) Act, 1987; The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992; The Juvenile Justice (Care and Protection of children) Act, 2000; The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2002.
National Policy for Children was adopted by the Government of India in the year 1974 and this Policy specifically mentioned to take care of the interests, rights and protection of the children. Some of the National Policies dealt with problems related to children are : – The National Policy on Education, 1966; The National Perspective Plan on Child Welfare; The Integrated Child Development Services; and The National Commission for Child Rights.

The National Human Rights Commission (NHRC) was established in 1993 for protection on Human Rights in India. Amongst the numerous priority concerns of the commission are female infanticide, child labour, and protection from torture, and treatment in areas of armed conflict. Taking into consideration the rise of child rape and sexual abuse, the NHRC has called for promulgating law to deal with such cases seriously.
The observation of the Supreme Court in various cases; Happily, the judiciary through its judgements successfully has been able to bring child rights to the mainstream of human rights discourse and in entreating greater accountability from the government agencies for the protection of child rights. Article 21 of the Constitution can be termed as the Magna Carta of Human Rights. This article guarantees right to life and liberty to every human being including the children. “The right to life and liberty under Article 21 means the right to life with human dignity and according to the Court an individual cannot be assured of human dignity unless his personality is developed, and the only way to do that is to educate him.”
Child marriage is a violation of the human rights of the poor girl. According to UNICEF Report, India has the highest population of married adolescent girls in Asia and Africa. 30 percent girls married between the ages of 15 and 18 are thus deprived of their right to education and health. India has improved on several fronts, but girls married off at young age and turning mothers in their teens are quite common. Children need to be treated with dignity and as equals. It is not enough to give them love but it is equally important to give them dignity. Corporeal punishment in the schools should be stopped. In 2008 it was reported that there were 98 cases of suicide by children in Tamil Nadu alone as a consequence of corporeal punishment. The Protection of Children from sexual offences Bill is aimed at protecting the young ones from sexual abuse, sexual harassment and child pornography. child abuse in Ashrams/Religious places.

Definition of a child varies from country to country. According to the Children’s Charter, a child is a person under the age of 18 years. A “child” means a person who is under the age of 15 years. Child Labour has been defined as the labour of children. It is yet another form of exploitation of children, which is a common sight in undeveloped and under developed countries of the world. Child labour has become a part of many economies in the world. Global economy has contributed towards the growth of child labour.
According to the International Labour Organisation (ILO) there are about 250 million children between the age of 5 years and 14 years, who are contributing actively towards the economy of the nations. Instead of going to school every day, they work in dangerous conditions. Poverty is the main reason for families to send their children to work. Due to child labour there is large scale exploitation and deprivation of human rights. Children’s rights are human rights.
Poverty, Economic compulsion, illiteracy, hunger, discord in the family, lack of social security benefits, preference for present gains, rather than waiting for the child to grow up and earn in future, are some of the causes that drives a child to take work even in dangerous occupations at a tender age. India employs the largest number of children in the world. Every third household in India is said to have a child worker. Most inhuman conditions exist in match factories, fireworks factories and private mines. In 1986, 8,000 children were released due to the intervention of the Supreme Court of India from Palamau in Bihar, where they were employed in the carpet weaving industry. These children were made to work for twenty hours a day.

Justice is everybody’s right. Children’s justice is to be ensured by adults because they cannot lobby for themselves. The establishment of Juvenile Justice System wais a great achievement of the nineteenth century to bring juvenile delinquents out of the purview or criminal courts and safeguard them from the technicalities of criminal procedure. It emerged as a measure or social defence towards juveniles.
The Juvenile Justice system seeks to deal with children apart from the adult in the matters of investigation, trial and correctional process. The children need to be separately treated from the adult offender, so that they may not learn the technicalities of crime commission from the hundred criminals. Millions of children throughout the world are victims of violence. They continue to be abused, exploited and trafficked. The Juvenile Justice Act, 1986 was inadequate as non-institutional methods such as family and school based prevention services to deal with juvenile delinquency were neither specified nor explored. Moreover, the Act did not directly deal with child sexual abuse. Despite the law, children were taken for interrogation overnight, detained, tortured and released in morning.
It is notable that India ratified the Convention on the Right of the Child, 1989 in November 1992. The Indian Parliament redrafted and re-enacted the Juvenile Justice Act in 2000. So, the Juvenile Justice (Care and Protection of Children) Act, 2000 got replaced by this most comprehensive law to deal with children’s right. According to this Act, a ‘juvenile’ is a person, who has not attained the age of eighteen years. This Act lays down ground rules for handling cases of juveniles either in conflict with laws or those in need of care and protection. It also provides the rehabilitation and social reintegration of a child shall begin during the stay of the child in a children’s home or special home and for their ultimate rehabilitation through various institutions established under this enactment.

Juvenile in conflict with law means of juvenile who is alleged to have committed on offence and has not complete 18 years of age on the date of commission of such offence and as per the Act the procedure shall be followed when claim of juvenility is raised before any court.

Juvenile Justice Board shall consist of a metropolitan magistrate or a judicial magistrate of the first class and two social workers, at least one of them a woman. No magistrate shall be appointed as member of the board unless he has special knowledge or training in child psychology or child welfare and no social worker shall be appointed as a member of the board unless he has been actively involved in health, education or welfare activities pertaining to children for at least 7 years.
There shall at least two members including the principal magistrate present at the time of final disposal of the case. In case of a juvenile, information should be given to parent, guardian or probation officer as the case may be; no juvenile can be charged with or tried for any offence together with a person who is not a juvenile. The Board cannot pass any order sentencing to death/life imprisonment/committed to prison. Juvenile is entitled for bail irrespective of the offence.

Observation Homes, Special Homes and children’s Home – to be established by State Government/voluntary organizations for temporary reception, of children in need of care and protection during pendency of inquiry, and subsequently for their care, treatment, education, training, development and rehabilitation. Shelter Homes to be established by State government, reputed and capable voluntary organizations to function as drop-in centres for children in need of urgent support.
Place of safety to be established by State Government/Voluntary Organisation and approved by competent authority for the juvenile in conflict with law for serious offences; who has attained the age of sixteen years. After-Care Organisation to be established by State Government/voluntary to care for children/juveniles after they have left the Children’s Home/Special Home to enable them to lead an honest and industrious life.

Inspection Committee is to be appointed by State Government to visit Children’s Homes. Inspection Committees to include representatives of State Government, local authority, Child Welfare Committee, voluntary organizations, medical experts and social workers.

This means a child –(i) Who is found without any home and means of subsistence; (ii)Who resides with a person who has threatened to kill or injure the child/has killed, abused or neglected some other child; (iii)Who is mentally or physically ill or suffering from incurable disease and has no one for support; (iv)Whose parent/guardian is unfit to control the child; (v)Who does not have a parent and no one is willing to care him/her;(vi)Whose parents have abandoned the child/runaway child whose parents cannot be traced; (vii)Who is or likely to be abused/tortured/exploited for sexual abuse or illegal acts; (viii)Who is vulnerable for induction into drug abuse or trafficking; (ix)Who is a victim of armed conflict/civil commotion/natural calamity.

Child Welfare Committee is appointed by State Government to deal with matters relating to children in need of care and protection and the five members including a Chairperson, one of whom should be a woman, & another an expert on children

Special Juvenile Police Unit to be established to effectively handle children/juveniles and this Unit has to inform parent/guardian as soon as possible that juvenile has been arrested for alleged commission of an offence.

Child of today cannot develop to be responsible and productive member of tomorrow’s society unless an environment which is conducive to his social and physical health is assured to him. Neglecting the children means loss to the society as a whole. In one of its judgment the Supreme Court rightly observed that the children are the citizens of future era. On the proper bringing up of children and giving them the proper training to turn out to be good citizens the future of the country depends. Children are, no doubt, supreme assets of the country. “Child is the father of man”.
This paper was presented during Orientation Training on Management of Child Care institutions from September 23 to 24, 2013 at Zonal Council Hall, Kohima and organized State Child Protection Society, Directorate of Social Welfare, Nagaland.

The writer is Lecturer, Kohima Law College & President NVCO. Ph: 9436209438

By EMN Updated: Sep 25, 2013 8:54:20 pm