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. We shall first discuss in brief, the United Nations Conventions on Rights of the Child (hereinafter, CRC), 1989 to which India is a signatory.
CRC and India
Adopted by the United Nations in 1989, the CRC is an international agreement legally binding on the parties signatory to it. It has incorporated in its various articles rights of children without any discrimination whatsoever. It was ratified by India on 11 December 1992. It has a preamble setting out different principles the CRC is built upon.
It is based on four basic principles:
Non-discrimination (Article 2)
Best Interest of the Child (Article 3)
Right to Life Survival and Development (Article 6)
Right to be Heard (Article 12)
The provisions of the CRC have been categorised as:
PART I (Article 1-41): It sets out the rights of children and obligations of governments. The rights can further be categorised 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.Advertisement
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.
PART II (Article 42-45): It contains provisions regarding implementation of the provisions of the CRC.
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.
Three Optional Protocols to the CRC have been introduced which are:
Optional Protocol to CRC on Sale of Children, Child Prostitution and Child Pornography.
Optional Protocol to CRC on the involvement of Children in Armed Conflict.
Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.
As of now India has not signed the third optional protocol.
How to report a child abuse
The first and foremost step to be taken for a child in distress is giving moral support to him or her. It is essential for children to be supported and brought back into their comfort zone if they have been subjected to abuse.
Police may be contacted on their hotline number, i.e., 100 for immediate assistance. Thereafter, a complaint can be made with the Police by lodging a FIR at the nearest Police Station.
The Police, upon lodging of the FIR, starts the investigation if such cognizable offence as reported was committed under the jurisdiction of the Police Station where FIR was lodged.
If the cognizable offence was not committed under the jurisdiction of the said Police Station, the police shall register a zero FIR and send it to the Police Station having jurisdiction over the matters of the place where the offence was committed. The Police Station with appropriate jurisdiction commences the investigation.adopting a child
Photographs or video clips or voice recordings of the child abuse may be taken as evidence and shared with Police in order to strengthen the case against the accused. Such kind of evidence shall not be circulated, transmitted or made available to anyone except the authorities or the court (for the purpose of proof) in cases relating to sexual offences against the children and identity of the victim shall not be disclosed to the public or unauthorised people.
If it so happens the police station refuses to lodge an FIR or to record any information, a copy of such information shall be sent to the Superintendent of the Police or the Assistant Commissioner of Police in writing, along with the statement that the approached Police Station refused to lodge the FIR or record the information in question. A copy of the writing must also be sent to the Commissioner of Police, the Deputy Commissioner of Police and the Senior Police Inspector.
Alternatively, ChildLine can be approached by dialling 1098 to report any child abuse and seek assistance. ChildLine India Foundation is the nodal agency of the Union Ministry of Women and Child Development acting as the parent organisation for setting up, managing and monitoring the CHILDLINE 1098 service all over the country. It is toll-free and 24 hours accessible number.Crimes against women
Various NGOs are working for the protection of rights of children; their help may be taken to secure the rights of children or to bring to justice the offenders who infringe such rights. Some of the reputed NGOs working for the welfare of children are HAQCRC, Cry, etc.
After official reporting of abuse and lodging of FIR, the matter goes to competent court and case is initiated by the State against the accused.
The contact details of various state departments working for protecting the rights of children can be found by clicking here.
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:
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.ITAT or Income Tax Appellate Tribunal
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 existence.
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.
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.download
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 institutionalisation 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 authorised 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.download-3
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:
rape is committed by management or staff of Remand Home or any other place of custody established by law or children’s institution,
rape is committed upon a woman under 12 years of age,
gang rape is committed.
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.