Advocacy of Child’s Rights in India

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By Kripa B. Narayan from SRMS College of Law, Bareilly

Introduction

Nanhe munne bacche teri mutthi mein kya hai ?

Mutthi me hai taqdeer humari”

These lines are very meaningful and deep, but the irony is India ranks 113 of 176 countries on an index that evaluates countries on the wellbeing of children.[1] Etymologically, the term ‘child’ comes from the Latin sentence which means ‘the one who does not speak’. In India, any individual who has not attained the age of 18 years is referred to as a minor.  Children’s rights are a subset of human rights with particular attention to the rights of special protection and care afforded to minors.

Children should develop and grow all round–physically, socially, mentally and emotionally. For this, proper facilities and care should be given and provided to them. Children need clothing, food, health facilities, education, protection, and above all, freedom. All children have a claim for these things in a society.

Childhood is universal transcend all nationalities and know no artificial boundaries. It is indeed an important factor in shaping the future of the nation if childhood can be endowed with the minimum requisite for healthy growth and development. Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. These inalienable rights are guaranteed to all human beings including children. Children should be afforded the necessary protection and assistance for the harmonious development of their personality.[2]

There are 472 million children in India under the age of 18 years, representing 39% of the country’s total population. A large percentage, 29% of that figure constitute children between the ages of 0 to 6 years; notably eliminating child labour, protection of children, and young persons.[3]

Children’s rights are human rights specifically adapted to the child because they take into account his fragility, specificities and age-appropriate needs. Children’s rights take into account the necessity of development of the child. The children thus have the right to live and to develop suitably- physically and intellectually. Children’s rights plan to satisfy the essential needs for a good development of the child, such as the access to an appropriate alimentation, to necessary care, to education, etc. Children’s rights consider the vulnerable character of the child. They imply the necessity to protect them. It means to grant a particular assistance to them and to give a protection adapted to their age and to their degree of maturity.

So, the children have to be helped and supported and must be protected against labour exploitation, kidnapping, and ill-treatment, etc.[4]

Basic rights of children

Following are the basic rights of children:

  1. Right to health
  2. Right to education
  3. Right to survival
  4. Right to protection
  1. Right to health: – Article 21A (incorporated as per Constitution 86th Amendment Act, 2002): Came into force on April 1, 2010. The Honorable Supreme Court of India has ruled that the health is the fundamental right of workers. Access to health is the most basic right of children. In India, nearly 1 million children die under the age of five, an estimated 39 deaths per 1,000 live births. Women and children are most likely to suffer disadvantages related to accessing health services such as maternal and newborn coverage.  Only 1 in 3 Indian women benefit from regular monitoring of their pregnancy. In rural areas, barely 37% of births are assisted by qualified health personnel. India has more than 204 million undernourished people and Indian children remain the most affected. Children in India often face a high prevalence of stunting with rates as high as 39%. As a response, the government started a large awareness campaign in order to educate the population about the importance of a varied and balanced diet. [5]
  • Right to education (Article 21(A) – 86TH amendment 2002: provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right.
  • Right to survival (Article 21): is protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.[6] According to it, everyone has the right to live life.
  • Right to protection (Article 19): children have the right to be protected from physical and mental violence, neglect, sexual abuse and exploitation, while they are in the care of parents or any other person. Article 3 para. 2 gives the child the right to such protection and care as is necessary for his or her well-being.[7]                                                                 

Rights given to child by the Constitution of India

The Constitution of India has given the following rights to the children:

  • Article 21, according to which there is “Right to free and compulsory elementary education for all children in the 6 to 14-year age group”.[8]
  • Article 24, according to which there is “Right to be protected from any hazardous employment till the age of 14 years”.
  • Article 39 (e), according to which there is “Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age or strength”.
  • Article 39 (f), according to which there is “Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment”.
  • Article 45, according to which there is “Right to early childhood care and education to all children until they complete the age of six years”[9]

The Constitution of India also accords rights to children as citizens of the country. So, just as any other adult male or female, the children also have rights as equal citizens of India.

Following are the rights of children as the citizens of India:

  • Right to equality (Article 14)
  • Right against discrimination (Article 15)
  • Right to personal liberty and due process of law (Article 21)
  • Right to being protected from being trafficked and forced into bonded labor (Article 23)
  • Right of minorities for protection of their interests (Article 29)[10]
  • Right to weaker sections of the people to be protected from social injustice and all forms of exploitation (Article 46)
  • Right to nutrition and standard of living and improved public health (Article 47)

Child Protection/rights Act

As there are many acts which were introduced for the protection of children, but following are same most important acts:

  1. The Child Labour (Prohibition and Regulation) Amendment Act, 2016:           

The bill was the amendment to The Child Labour (Prohibition and Regulation) Act, 1986 which prohibits employment of children below 14 years of age in all occupations. But it allows adolescents (those between 14 and 18 years of age) to work in non-hazardous occupations and processes. They can work in family-run establishments like a grocery store but can’t work in a chemical factory. The government justified the exceptions to strike “a balance between the need for education for a child and reality of the socio-economic condition and social fabric in the country”. The bill is criticized for taking away basic protections for some of the most vulnerable workers.

Punishment: The penalty for employing a child will now be imprisonment between six months and two years (from three months to one year) or a fine of Rs. 20,000 to Rs 50,000 (from Rs. 10,000-20,000) or both. The second time offence will attract imprisonment of one year to three years, the Act says.[11]

  • POCSO Act,2012:  The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was introduced in Rajya Sabha by the Ministry of Women and Child Development, Ms. Smriti Zubin Irani on July 18, 2019. The Bill amends the Protection of Children from Sexual Offences Act, 2012.[12] The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer generated image indistinguishable from an actual child.

Punishment: The bill seeks to enhance punishment for sexual offences against children, with a provision of death penalty. To curb child pornography, the Bill provides that those who use a child for pornographic purposes should be punished with imprisonment up to five years and fine. And those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, which might extend to life imprisonment as well as fine.

Following are some other acts for the protection of child rights:

STATUTES / ACTSAGE OF THE CHILD
Indian Majority Act,187518 years
The Child Marriage Restraint Act, 192921 years for male and 18 years for female
The Children (Pledging of Labour) Act, 193315 years
The Factories Act,194814 years
The Apprentices Act, 196114 years
The Women’s and Children’s Institutions (Licensing) Act, 195618 years both for male and female
The Mine’s Amendment Act, 198318 years
The Child Labour (Prohibition and Regulation Act), 198614 years
The Immoral Traffic (Prevention ) Act, 198616 years
The Juvenile Justice Act, 200118 years
The Draft Bill of The National Commission For Children, 200014 years [13]

Landmark Judgements in light of Child’s Right by the Hon’ble Supreme Court

  1. MC Mehta vs State of Tamil Nadu & Others AIR 1986 SC 465:

which was decided in 1996. The judgement is a historic judgement on child labour, which elaborated the situation of child labour in India. It outlines the vision of Constitution with respect to children. The judgement highlighted the relation between poverty and child labour and also shed light on how the state has failed to eradicate child labour, and its lack of zeal to deal with it. The judgment also deliberated on possible solutions to eradicate the child labour.[14]

  • Child Pornography-Child Sexual Abuse Material| Standard Operating Procedure for cyber portal-handling complaints finalized:

The Bench comprising of Madan B. Lokur and Uday Umesh Lalit, JJ. gave a cutoff date for finalizing the “Standard Operating Procedure” for cyber police portal-handling complaints involving child pornography-child sexual abuse material, rape/gang rape, and obscene contents.[15]

References

[1]Refrences as on date 16/07/20

 India ranks 113 of 176 countries on children’s wellbeing, Reference : https://www.downtoearth.org.in/ as on date 16/07/2020

[2] What are child’s right in India, Law Teacher, reference : https://www.lawteacher.net/ as on date 16/07/2020

[3] Status of Children’s right, Reference: https://www.humanium.org/ as on date 16/07/2020

[4] Children’s rights: rights adapted to children, Reference: https://www.humanium.org/en/child-rights/ as on date 16/07/2020

[5]Refrence as on date 16/07/20

 Addressing the needs of children, reference:  https://www.humanium.org/en/child-rights/ as on date 16/07/2020

[6] Article 21 of the Indian Constitution, Reference: https://www.lawctopus.com/ as on date 16/07/2020

[7]   Children’s Right to Protection Under the CRC, reference: https://link.springer.com/ as on date 16/07/2020

[8] Constitution Of India

 Centre of child rights, Reference : https://www.haqcrc.org/child-rights/constitution-of-india/ as on date 13/07/2020

[9] The Constitution of India

[10] Centre of child rights, Reference : https://www.haqcrc.org/child-rights/constitution-of-india/ as on date 13/07/2020

[11] Up To 2-Year Jail, Fine Of Rs 50,000 For Child Labour, Reference : https://www.ndtv.com/  as on date 16/07/20

[12] POCSO (Amendment), Reference : http://newsonair.nic.in/  as on date 16/07/20

[13] Dilemma of the age of child. Reference: https://racolblegal.com/child-rights-in-india-an-account-of-landmark-decisions-and-regulations/ as on date 16/07/2020

[14] Landmark judgement against child labour in India, reference available at: https://hrln.org/  as on date 16/07/2020

[15]NATIONAL LEGAL RESEARCH DESK, reference available at: https://nlrd.org/ as on date 16/07/2020

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