Legal Protection Of Children

This article is written by Sanskriti Sharma of University School of Law and Legal Studies, an intern under Legal Vidhiya

Introduction

Children are the best asset for any country and the brightest hope for the future. These are the future captains of our country’s ship, who can see magic even in adversity. Thus, our most pertinent duty as citizens is never to let this spark in their eyes and smiles vanish. The future framework of our country depends on the shoulders of these young leaders; depriving them of a rightful, secure and happy life is unjustified. Child protection in these circumstances becomes a vital tool for upholding their rights. The Integrated Child Protection Scheme defines child protection as safeguarding children from risks or perceived risks in childhood. These risks range from poor physical and mental health to delinquency and vagrancy.

In India, issues pertaining to children’s safety and welfare are essential topics of discussion because myriad evils are prevalent in society. Children face a threat and experience insidious abuse, exploitation, and abuse. Often the perpetrators are those they should be able to trust and confide in freely, and the places of violence range from schools to their homes. The rampant cases of child marriage, child labour, child prostitution, and child pornography give us a glimpse into the extent of danger children face in a world right from birth. Considering these menaces, the presence of legal rights for their protection and due enforcement becomes vital. This article examines such legal rights enshrined in various statutes and their application in the contemporary world.

Convention on the Rights of the Child

The United Nations Children’s Fund was started in the wake of destruction in the aftermath of the two world wars in 1946. This organisation aimed to reimagine a future for children entrapped in wretched lives of risk and violence. It has since progressed from protecting children in conflict-prone zones to combating global challenges irrespective of where these children reside.

In 1989, the organisation accomplished one of the most impressive feats by introducing an international legal framework – the United Nations Convention on Child Rights. The General Assembly approved it on 20 November 1989, and India ratified the convention on 11 December 1992. The convention is the most detailed and inclusive statement of child rights. It takes the ten principles in the  Declaration of the Rights of the Child. It expands them to 54 articles, of which 41 relate specifically to children’s rights, covering almost every aspect of a child’s life.

The convention has been the most ratified treaty in the history of the United States, with 196 member states giving consent to it. This treaty also brought a paradigm shift in viewing children as individuals in themselves. They are not objects belonging to their parents for whom decisions must be made or charity cases whose plight needs to be sympathised with. Children are now viewed as distinct human beings with their own set of rights and identities.

The convention aims to outline the fundamental rights to which every child is entitled. A child under the ambit of this treaty has been defined as one under the age of 18 years. These rights are classified into four broad categories, including all children’s civil, economic, political, social and cultural rights.

• Right to Survival – The right to survival of a child begins even before it takes its first moments outside the mother’s womb. According to the Indian government, a child’s right to survival begins twenty weeks after conception, including the child’s right to life, appropriate food standards, housing, and the right to live a dignified life.
• Right to Protection – It is paramount that a child should be protected from abuse, violence and neglect at home, school and elsewhere.
• Right to Participation – This talks about children’s right to be included in discussions relating to their life, and involvement in such decision-making may be direct or indirect. The participation may also vary depending on the age and maturity level of the individual.
• Right to Development – All aspects of development – emotional, mental, and physical- are children’s rights. The correct care and affection of a support network, mental development through education and learning, and physical development through play, recreation, and nutrition all contribute to the emotional and cognitive development of the child.

These core rights have been enshrined in various articles of the convention, mainly in articles 3, 5, 6 and 19.

Furthermore, the four core principles of the Convention on the Rights of the Child can be identified as non-discrimination, right to life, survival and development, the child’s best interest and respect for their views.

Legal Frameworks in India

Our country is home to a population of 445 million children and has the largest adolescent population standing at 253 million; this adds greater responsibility to our country to protect its young future. However, knowing that most child brides worldwide are from India is disheartening. Regarding the prevalence of child marriage among the eight South Asian nations, India comes in fourth (after Bangladesh, Nepal, and Afghanistan).

The issue of low body mass index in adolescent girls and difficulties of child marriage and teenage pregnancies have an intergenerational impact. Over half (54%) of adolescent girls have anaemia compared to 30% of boys. Between 60 and 90 per cent of girls experience sexual harassment or violence in public places, making our country one of the nations with high rates of violence against women. These challenges make it more pertinent to have stringent legal mechanisms to prevent further attrition and violation of children’s rights.

To achieve this objective, there are various constitutional and statutory provisions, judicial pronouncements, and a commission devoted to the protection of children at national levels.

Constitutional Provisions

The constitution of India nowhere defines the term child. According to the Universal Declaration of Human Rights, a child has been described as every human being below eighteen years of age unless a majority is attained earlier under the law to which that person is subjected. In India, the definition of a child varies across provisions. For example, the purpose of a child under the Indian Majority Act of 1875 differs from that under the Child Labour (Prohibition and Regulations) Act of 1986.

The constitution of India strives towards safeguarding children’s rights and ensuring a life of dignity. Our constitution makers were mindful of fostering a safe environment for children to further the cause of holistic development of our country; hence the following provisions have been included –

Fundamental Rights

• Article 14 – Right to equality

The Constitution expressly declares any form or way of discrimination as unconstitutional under Article 15. Together articles 14 and 15 of part three aim to further the cause of equal protection of children as any other citizen of our country. This is important as children, due to their young age, are often dependent on the adults in their lives for protection, so the incorporation of these two articles empowers them.

• Article 21A – Right to Education

Education is one of the most potent instruments to enrich the available human capital at any government’s disposal. Depriving a child of education is equivalent to denying them a life of dignity. The constitution, therefore, makes giving primary education to children who are between the age of 6 to 14 an immediate, inalienable right to ensure every child has the privilege to live a respectful and meaningful life. This article also imposes a legibility to ensure that such educational measures are compulsory and free.

• Article 23 – Prohibition of Trafficking and bonded labour

Child trafficking is prevalent in India; minor girls are often trafficked to work in prostitution or sold as child brides. They are constantly engaged in bonded labour resulting in a deplorable state due to a lack of access to basic amenities. About 6.5 million children in India are trapped in the vicious cycle of trafficking. 

• Article 24 – Prevention of Employment of Children in Factories

This article prevents the employment of children in factories or other hazardous workplaces below the age of 14. The data from the 2011 census shows 10.1 million in India being Child Labourers, of which 5.6 million are boys and 4.5 million are girls. Child labour deprives them of their rightful place in schools and access to education, apart from reinforcing intergenerational structures of poverty. The incorporation of such provision prevents the perpetuation of this menace.

Directive Principles of State Policies

These are socio-economic guidelines directing the government of various tasks which should have paramount importance and consideration in their actions.

Though not justiciable, the directive principles are often used to gauge the state’s actions concerning fulfilling its goals. Some of them aiming at child protection are –

• Article 39

Under Article 39, clauses (e) and (f) mainly protect children forced to work in an unsuitable environment due to poverty and no alternative income sources for families. Similarly, article 39 (f) directs the development of children in a free and healthy environment bereft of any material or emotional abandonment and provides opportunities for their holistic growth.

• Article  45

This article details the responsibility of the state to provide compulsory education and early childhood care to all children who are below the age of six years without discrimination.

Statutory Provisions

Apart from the constitution, the legislature has also enacted various acts and statutes for the welfare of children. These statues aim at curbing the existing menaces in society which may threaten their lives and happiness. Some of them are –

Child Marriage Prohibition Act

After the Child Marriage Restraint Act was repealed, the Government of India introduced the Prohibition of Child Marriage Act in 2006. This act’s primary goal is to stop child marriage. With the passage of this act, child marriage is no longer permitted in society. A child under this act is defined as a female under the age of eighteen and a male under the age of twenty-one.

Children (Pledging of Labour) Act

The act was passed before independence in 1933 but is still in effect today. The show aims to eliminate the negative impact of using young children as labourers. A parent or guardian of a kid may not pledge the labour of a child under 15 in exchange for money or another advantage.8, The law penalises both the parent or guardian and the employer when a youngster is forced to work as an enslaved person. An employer may be fined up to Rs. 200, and the parent or legal guardian may be fined up to Rs. 50.

Factories Act

The Factories Act passed in 1948 provides various sanctions against the employment of children in certain conditions specifically. These are as followings –

Article 67 prohibits the employment of children below the age of 14 years in a factory.

Article 68 makes it compulsory for all people aged above 14 and adolescents to carry a certificate of fitness for working in factories.

Article 71 prohibits working children for more than four and a half hours daily or at night.

Article 99 attaches a fine of rupees 1000 on the guardian, agent or parent of any such child found being employed the double time in any factory along with the one he is currently working in.

Probation of Offenders Act

The Probation of Offenders Act of 1958 was enacted primarily to allow offenders to mend rather than become seasoned criminals. Any person over the age of twenty-one who has not been convicted of a crime carrying a sentence of up to seven years in prison, the death penalty, or life in prison may be released on the condition that they follow the terms of their probation for good behaviour, according to Section 562 of the Code of Criminal Procedure of 1898 (which, after amendment, became Section 360 of the Code of Criminal Procedure from 1973). It also aims to protect children from the gruesome realities of prisons. It prevents them from becoming pertinacious criminals with no redemption.

Juvenile Justice (Care and Protection of Children) Act

This act deals with the law relating to young people who have run afoul of the law and children who need care and protection. It offers appropriate care, security, and treatment by considering the children’s development needs and best interests.

Protection of Children from Sexual Offences Act

The act was passed in 2012 to safeguard children from crimes involving sexual assault, sexual harassment, and pornography and to establish Special Courts for trialling such crimes and occurrences related to them.

The act was revised in 2019 to include stiffer penalties for certain violations to provide children with a life of security and dignity. Furthermore, it is gender neutral and defines various types of sexual abuse, such as assault which is penetrating or non-penetrating, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under specific instances, such as when the affected child is mentally ill or when the abuse is carried out towards the child by someone whom he trusts or has authority over him, such as a family member, police officer, teacher, or doctor.

Guardian and Wards Act

The Guardians and Wards Act of 1890 was passed to safeguard the minor’s interests and property. The statute applied to India and was enacted on 1 July 1890. The Guardians and Ward laws are consolidated and amended under the act. The legislation governs guardianship and custody laws for all children on Indian territory. It operates the rules of personal laws relating to guardianship and wards. However, it does not supersede private laws governing guardianship and wards.

Section 7 of the act gives the court the authority to issue a guardianship order. According to this clause, the court may appoint a guardian for the welfare of minors. The guardian can look after the juvenile and his belongings. The court may also terminate any such guardian.

Judicial Pronouncements

Sheela Barse v Secretary, Children’s Aid Society^[1]

Sheela Barse, the appellant and a member of the Maharashtra State Legal Aid and Advice Committee, complained about the improper operation of the New Observation Home in Mankhurd, which is maintained and run by the Children’s Aid Society in Bombay, in a writ petition filed in the Bombay High Court. She expressed concern about the Observation Home’s improper operation in her petition. The Supreme Court ruled that the officers at all levels must carry out the statutory obligations placed on them by the Statute. When equipped to handle a crisis, they should be asked to do so after receiving the appropriate training. The Court further stated that the probation officers in the observation home must be well-trained, possess practical psychology knowledge, and exhibit acute observational skills.

Vishal Jeet v. Union of India^[2]

This case reflected the plight of children who are subjected to sexual exploitation and forced to take part in the flesh trade, specifically minor girls. The Supreme Court took a strong stance against the forced exploitation and recruitment of minor girls in prostitution and the practice of the devadasi system. It redirected central and state governments to take stringent actions against the trafficking of children and sexual exploitation and take measures for their rehabilitation.

Mohini Jain v. State of Karnataka^[3]

In this instance, a resident of the state of Uttar Pradesh objected to a notification by the government of Karnataka that allowed private medical colleges to charge more money to students who weren’t given “government seats.” According to the Supreme Court of India, private educational institutions’ “capitation fee” collection violates equal protection under the law and the implicit right to education that derives from the right to life and human dignity. The Court construed a right to education as a fundamental prerequisite for the fulfilment of the Article 21 of the Indian Constitution in the absence of an express constitutional right. The Court also ruled that private entities functioning as state agents have a

Conclusion

The various provisions in the Indian legal framework can only provide iron-clad protection to children when enforced. Hence it becomes pertinent that these statutes are realised at the earliest. The right of every child to grow up in a family environment protected from violence and abuse should not be denied. It is high time that the citizens and authorities in charge wake up to their duty.  

References

1. Child Marriage Restraint Act, 1929 (passed 29/9/1929)
2. Juvenile Justice (Care and Protection of Children) Act, 2015 (passed 7/5/2015)
3. UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.

---

^[1] Sheela Barse v Secretary, Children’s Aid Society, AIR 1987 SC 656

^[2] Vishal Jeet v. Union of India, AIR 1990 Sc 1412

^[3] Mohini Jain v. State of Karnataka, 1992 AIR 1858