NLUJAA Essay

“ Access to justice for children- a necessity in the pursuit of the modern ideal society”

" The moral arc of the universe bends at the elbow of justice."

Martin Luther King

Human beings have spent a long way since their inception into the planet, and we must admit
that they have, more often than not, outdone themselves, properly utilized the resources that
nature had offered them and often, ended up doing miracles. They have explored the unexplored,
touched the greatest of heights and the farthest of depths; they have built wonder sculptures,
monuments, pyramids, trains, airplanes, medicines and what not. They have written epics,
sonnets, classics, comics, epochs and what not. Looking back and taking a glance at the wonders
that we, as a whole have done, despite occasional setbacks and disturbances, like the Great Wars
or the Great Depression, or even the communal riots or the mass genocides, few would refute at
the idea of the conclusiveness of the nature of deeds performed by the humans in the past, and
accept that human beings have done quite a commendable show on this Earth till now, with the
proper utilization of the resources available to them.

But can ‘advancement' or ‘modernization' of a society be restricted only to such achievements

made in terms of proper utilization of resources i.e. would it be fair enough to hold ‘growth' or
the sheer increase in the productive capacity , in the forms of facilities made available to human
beings as the sole criteria to attach the label of ‘modern' or ‘advanced' to the society?

If we go by the generic meaning of term ‘modernization' attached to it in the sociology1 ,it may
be viewed on as a process of gradual and incremental increase in the lives of the people of the
society concerned; in all forms, be it economic, political, spiritual, aesthetic or religious, which
not only focuses on the future development but also to preserve the rich heritage.

1
Modernization,(Nov.15, 2018, 8:16 pm) https://en.wikipedia.org/wiki/Modernization_theory
 So, this basically points two important findings. Firstly it speaks about the nature of
modernization- it needs to pervasive and inclusive, and secondly it points out that it is not a static
concept focusing on the present point of time, but it also takes care of both the future and the
past.

But, how can we say that this goal of a modern or advanced society, if not perfect, may be
achieved?

The most accepted theory of the process of modernization originated in the ideas and works of
the German sociologist Max Weber (1864–1920) regarding the role of rationality and
irrationality in the transition from traditional to modern society. Weber's approach provided the
basis for the modernization paradigm as popularized by Harvard sociologist Talcott Parsons
(1902–1979), who translated Weber's works into English in the 1930s and provided his own
interpretation.

In this journey of becoming a modern society, different scholars have argued on treating
different avenues as the most important one. Kendall propagated the need of urbanization and
industrialization2

as the utmost need for the process of modernization, whereas former U.S. President Lyndon
B.Johnson emphasized on communication as the major source of modernization3 as through an
all-pervasive bond throughout the world, there would be proper dissemination of information
about developed societies to the underdeveloped ones, leading to overall development. This rests
on a fundamental fallacy that some societies are more developed than others. On the other hand
scholars like Ronald Inglehart , Christian Welzel, Larry Diamond and Juan Linz, who worked
with Lipset in the book, Democracy in Developing Countries: Latin America4 have argued that
democracy is the cornerstone of modernization , and Peerenboom had said that economic
development i.e. rise in per capita income is the sole criterion for the establishment of a
democracy, and he further supported his argument with the help of countries like Philippines,

2
Diana Kendell, Sociology in our Times 11(2007)
3
Lindo-Fuentes, Héctor (2009). "Educational Television in El Salvador and Modernisation Theory". Journal of
Latin American Studies. 41 (4)
4
Larry Diamond and Juan Linz, Democracy in Developing Countries: Latin America, 44-46(1997)
 Bangladesh, Cambodia, Thailand, Indonesia, and India, which sought to democratize at lower
levels of wealth but have not done as well5.

Lastly, technology has been argued as a major reason for the social change; however, it must be
proved to be evident, technology does not change society by itself, rather it is the response to the
change in technology that changes the societies.

But since the 1960s, all such theories began to get criticized and discarded and new scholars
came up with newer theories, and they propounded that modernization is basically a state of the
society where the scientific and technological advancements can be used to reach a utopian
society; where people get their due, justice, liberty, and equality follows, where there is welfare,
happiness, economic progress, and above all, law and order to ensure the proper functioning of
the society. This kind of society has been envisioned by as a ‘modern' society by scholars
Andre Gunder Frank (1929 – 2005)6 and Immanuel Wallerstein (born 1930)7.

Rather, Tipps8, another scholar has commented that the only modern society that exists in the
present day in Japan, as another etymological meaning of modern is ‘present' and Japan could
reach the expectations of a present-day society, it not only fulfills the aforesaid criterion as stated
by Frank and Wallerstein but also builds upon the virtues of the past society and ensures that
even the future society reaps the benefit of the present day.

This juncture would be used to further study on our topic; as it is evident if we want our society
to be a modern and advanced one, we must focus on the ideals that we strive to achieve, and
justice is one of the most important virtues present there, along with its' all-pervasive reach,
which must include the children as they are not only a part of the society , but they are the ones
on whom the future of the society depends, and, unfortunately, they are victimized against
persons who are way too much for them; and even sometimes, without their knowledge. Mostly,
they need access to justice from the side of others and the State, as they can barely realize their

5
Randall Peerenboom, China Modernizes: Threat to the West or Model for the Rest? 6 (2008)
6
Sing Chew and Pat Lauderdale, eds. Theory and methodology of world development: The writings of Andre
Gunder Frank (Springer, 2010).
7
Theda Skocpol, "Wallerstein's world capitalist system: a theoretical and historical critique." American Journal of
Sociology 1075-90(1977)
8
Dean C. Tipps, "Modernization theory and the comparative study of national societies: A critical
perspective." Comparative Studies in Society and History 199-226 (1973)
 rights, forget about claiming them. It is only through the help of others that we can protect them
from further victimization and attain our goal of a modern society.

So, this article would move around two important pivots- one of them would be that of justice
and another one would be that one of children- their safety, importance and contribution to the
society, and a conjoint study of these two pivots , in order to find their unison in the modern day
societies, highlighting the major drawbacks and positive attributes, and concluding thereon with
suggestions on how to improve the situation would be the aim of the article so that we may move
a step ahead towards the establishment of the ideal society that we all dream of.

If we go by the dictionary, justice means any legal or philosophical theory by which fairness is
administered9.

Over the years, it has got many different forms as interpreted by various different scholars, and it
gave rise to a lot many theories as advocated by various jurists, philosophers, economists,
environmentalists, each interpreting the concept or idea of justice with a different tinge, as
suitable to their fields. Thus, it gave rise to new branches of justice such as Distributive Justice (
" Economics"), Environmental Justice (" Environment"), Organizational Justice (" Social
Science"), Social Justice (" Sociology") and Spatial Justice ( " Geography"). As our essay
concerns with the field of law, let us restrict our study of justice strictly to such theories which
are directly and overtly associated with the legal process and procedure. Although, law is such a
wide and interdisciplinary field, and it is intermingled with such diverse fields, like economics,
environmental studies, sociology, that nearly all the facets of justice are involved in the legal
process, and it would be too wide to cover them up, although a brief attempt might be made.
Rather, let us discuss the basic theories of justice as associated with various crimes and atrocities
that are done on the children, maybe criminal or civil in nature.

At the earliest stage, Plato and Socrates gave the theory of Harmony, which stated that a person
can be ‘just' and a city-state can be ‘just' if they perform a harmonious relationship, such that the
different parts of the man i.e. body, spirit, and desire and the different wheels of the state, be
together to form the tasks that come in their way, to be at the just place, at the just time, and to
do the just work. This highlights the importance that children must have access to justice, as it is

9
Justice ( Nov. 15, 2018, 8:39 PM) https://en.wikipedia.org/wiki/Justice
 only when the different parts of the society would work together in harmony so that all its
different parts would be working together to produce the ‘right' or ‘just' results.

John Locke advocated for a scheme of ‘natural law'10 as an explanation to justice- it proposes
that justice is the consequence that follows as a natural outcome of any action or behavior
whatsoever. If the principal action is righteous, justice would further strengthen it, and if the
principal action is unfair, justice would demolish it. So, basically it follows a deontological
nature, and if we link it to the context of the present day context of atrocities on children, it
basically envisions a system where these actions themselves would be nullified by their own
vices i.e. the children- the oppressed themselves would demolish the wrongs inflicted upon them.
The main fallacy of this theory lies it proposes no state intervention in the process of rendering
justice and this would be absolutely absurd in the modern day context if we leave things in the
hands of the divine and not take any further step to fight against the odds.

Thomas Hobbes, in his social contract theory11 propounded that justice is something that
everyone or the majority agrees to. Definitely, the majority of society does agree upon the
importance of child safety in the society, as the future of our society and why do they require
more care and vigilance than the adults, as most of the time they are themselves unable to protest
against crimes done on them and suffer from further victimization. Furthermore, John Stuart
Mill, in his consequentialism theory argued that justice is something that has the best
consequences- as submitted before, protecting the children would probably have the best
consequence- it will not only help us fulfill our obligations as grown up but also would envision
a better and brighter future for the society.

If we move further on with the concept of justice, we shall mostly come across concepts like that
of fairness, equality before the law, Abrahamic Justice 12 and other theories of punishment like

10
Locke’s Politiical Philosophy (Nov.15 , 2018, 8:41 PM) https://plato.stanford.edu/entries/locke-political/

11
Laurence, Timothy (2014). "Overview". In Laurence, Timothy. Good News for the Public Square. P.978
12
Abrahamic Justice ( Nov.15,2018, 8:45 PM) www.qscience.com/doi/pdf/10.5339/rels.2012.justice.12
 that of retributive, restorative, reformative, deterrence and social and distributive justice. Let us
not delve into such avenues as our topic is strictly restricted to ‘access to justice' concept and the
aforesaid theories of justice makes it clear that access of justice to children is something that
cannot be done away with; it has to be an indispensable part of the modern day society.

The United Nations Convention on the Rights of the Child defines a child as "a human being
below the age of 18 years unless, under the law applicable to the child, the majority is attained
earlier."

From this definition, it itself becomes clear that child is anyone below the age of 18, and no such
concepts like that of juvenile and teenager prevail in international law unless a contrary
definition is found in the law of the domestic land. Also, another important thing to be observed
is that a person is declared to be a child until he/she reaches the age of majority, so in
international law, the word ‘minor' is often interchangeably used with that of a child.

But, in India, the definition of child has been one of constant debate. The Census of India and so
does most Government Programmes, consider people below the age of 14 as children. The Indian
Penal Code (IPC) 1860 finds that no child below the age of seven may be held criminally
responsible for an action (Sec 82 IPC). In case of mental disability or inability to understand the
consequences of one's actions, the criminal responsibility age is raised to twelve years (Sec 83
IPC). A girl must be of at least sixteen years in order to give sexual consent, unless she is
married, in which case the prescribed age is no less than fifteen. With regard to protection
against kidnapping, abduction and related offenses the given age is sixteen for boys and eighteen
for girls. According to Article 21 (a) of the Indian Constitution, all children between the ages of
six to fourteen should be provided with free and compulsory education. Article 45 states that the
state should provide early childhood care and education to all children below the age of six.
Lastly, Article 51(k) states the parents/guardians of the children between the ages of six and
fourteen should provide them with opportunities for education. The Child Labour (Prohibition
and Regulation) Act, 198613 defines a child as a person who has not completed fourteen years of
age. The Factories Act, 194814 and Plantation Labour Act 195115 states that a child is one that

13
Ss. 61, The Child Labour (Prohibition and Regulation) Act, 1986
14
Ss. 20 The Factories Act, 1948
 has not completed fifteen years of age. The Motor Transport Workers Act 1961, and The Beedi
And Cigar Workers (Conditions Of Employment) Act 1966, both define a child as a person who
has not completed fourteen years of age. The Merchant Shipping Act 1958 and Apprentices Act
1961 doesn't define a child, but in provisions of the acting state that a child below fourteen is not
permitted to work in occupations of the act. The Mines Act, 1952 is the only labor-related act
that defines an adult as a person who has completed eighteen years of age and hence a child is a
person who has not completed eighteen years of age.

The Prohibition of Child Marriage Act, 2006 states that a male has not reached majority until he
is twenty-one years of age and a female has not reached majority until she is eighteen years of
age. The Indian Majority Act, 1875 was enacted to create a blanket definition of a minor for such
acts as the Guardians and Wards Act of 1890. Under the Indian Majority Act, 1875 a person has
not attainted majority until he or she is of eighteen years of age. This definition of a minor also
stands for both the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and
Maintenance Act, 1956. Muslim, Christian and Zoroastrian personal law also upholds eighteen
as the age of majority. The first Juvenile Justice Act, 1986 defined a boy child as below sixteen
years of age and a girl child as below eighteen years of age. The Juvenile Justice (Care and
Protection of Children) Act, 2000 has changed the definition of child to any person who has not
completed eighteen years of age.

Because of its umbrella clauses and because it is the latest law to be enacted regarding child
rights and protection, many are of the opinion that the definition of a child found in the Juvenile
Justice Act, 2000 should be considered the legal definition for a child in all matters.

In this act, a child or juvenile is defined as a person who has not completed his/her 18th year of
age.

If we now look at the various types of offenses that are committed on children, we would come
across a various wide range- there are crimes against the body and mind like that of statutory
rape, there are crimes that are against the natural law of care, attention, and guardianship like

15
Ss. 1 Plantation Labour Act 1951
 that of physical and mental abuse as caused by the guardians and caretakers; there are scope of
modern day electronic crimes like that of child pornography and sexting, and other such various
heinous crime like that of child abduction and child abandonment.

The Indian Penal Code (IPC) also has a list of offenses against children.

Section 315 and 316 discusses the offence of foeticide and infanticide. 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.

Section 317 states that is it a crime against children, if their mother or father expose or leave a
child in a place with the intention of abandonment.. 361 states that if a male minor of not yet
sixteen and female minor of not yet eighteen is taken from their lawful guardians without their
consent it is termed kidnapping from lawful guardianship. Section 363-A states it is a crime to
kidnap or maim a minor for the purpose of employment of begging. If a person is found
employing a minor for begging, and that person is not the legal guardian of the child, it is
assumed that the child has been kidnapped for the purpose of employment in begging. 366A
especially outlines such a crime being committed against a minor girl who has not attained
eighteen years of age. Section 369 is a specific crime of kidnapping a child under 10 years of age
in order to steal from them.

Sexual offenses against children are also covered in the IPC. Section 372 discusses the selling of
a child (below the age of eighteen) for the purpose of prostitution or to illicit intercourse with
any person or knowing that it is likely that the child is being sold for such a purpose. Section 372
states it is a crime to buy a child for the purpose of prostitution or to illicit sex from any person.

Also at times, it becomes difficult to determine and place the liability as various disturbing and
confusing issues like that of consent, parental authority, necessity comes into play as defenses in
cases of offenses against as the child.

The access to justice for children must not merely relate to such overtly present offenses and
crimes, but must also cover other passive form of offences and crimes like that of child infancy
 clinical deaths and other such causalities, where there may not be any mens rea but negligence
on the part of the defendants in proper care and guardianship must also be actionable.

In the recent country wise scorecard on the access to justice for children, India has grossed a
score of 167/250, which can be said to be very modest, with countries like the United Kingdom
and the United States outsmarting India by many times. The survey made it very clear that India
has failed to rise to International Standards, as expected that of a developed nation, as it still does
not give the CRIN precedence over national law.

The Indian legal system has provisions like that of the POSCO Act and the Criminal Law
Amendment Act 2018, but they cannot be said to be much effectively implemented yet as the
child offense rate is still on a rise, rather than taking a downward route16.

It is submitted that India must inculcate the following measures in its' juvenile justice and access
to justice to children on an all-pervasive level throughout the country and the society, before we
may be in a state to state or declare any affirmative statement about the "Access to Justice for
children in India". The suggestions are:

 There must be more child-friendly courts and child witness recording courts. There are
only 10 presently whereas the recommendation was for 1023 courts.
 Children must be made aware of their rights, concepts of sex education must be given in
the school to engage them in meaningful participation.
 Involvement of the NGOs with the Government factors like that of Goonj, Aroshi with
Government legal centers like Vidhi.
 The child-friendly atmosphere must prevail in the investigation of such offenses.
 There must be international tie-ups and convocations so that the best of the existing
platforms may be utilized, especially that of the developed countries by the developing
countries.

16
The number of cases registered for child abuse raised from 8,904 in the year 2014 to 14,913 in the year 2015,
under the POSCO Act. Sexual offences and kidnapping account for 81% of the crimes against minors.
  Lastly, a deterrence approach must be followed while punishing the offenders of such
offenses rather than following a reformative or retributive approach- the aim should stop
the furtherance of such offenses overshadowing the need of retribution of the rights.

The Supreme Court of India, while interpreting the Guardianship and Wards Act, 1890 has
clearly stated that " Welfare of the child should be of paramount interest".

We must uphold the ideals of the Apex court and must ensure the welfare and protection of the
children, with the utmost aim of ensuring them to proper justice, otherwise, our society can never
reach up to its' dream ideal status- it shall put both its' present and future at stake.