ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

1- Introduction:

Child rights are the human rights of the children with particular attention to the rights of special
protection and care afforded to the young, including their right to association with both
biological parents, human identity as well as the basic needs for food, universal state paid
education, health care and criminal law, appropriate for the age and development of the child.
Child rights are the fundamental freedom and the inherent rights of all human beings below the
age of 18. These rights apply to every child, irrespective of the child’s parent/ legal guardian’s
race, colour, sex, creed or other status. Human rights are the children’s right too. International
human rights instrument recognises that children as well as adults have basic human right. Each
and every child have right to special protection because of their vulnerability to exploitation
and abuse. The most basic needs of children are referred to as ‘right’.

Children are mentioned explicitly in many of the human rights instruments; standards are
specifically modified or adapted where the needs and concerns surrounding a right are distinct
for children. The convention on the rights of the child brings together the children’s human
right articulated in other international instruments. This convention articulates the rights more
completely and provides a set of guiding principles that fundamentally shapes the way in which
we view children.

A child means every human being below the age of 18. What makes a person a ‘child’ is the
person’s age. While children need protection, because of their social, economic or even
geographical location, some children are more vulnerable than others and need special
attentions. These children are-

 Homeless children
 Migrant Children
 Orphaned or Abandoned Children
 Working Children
 Child Beggars
 Children of Prostitutes
 Trafficked Children
 Children in Prisons
 Children affected by Conflict
 Children affected by HIV
 Drug abuse by Children/ peddlers
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

2- Indian Constitution and Child Rights.

The Indian constitution accords rights to children as citizens of the country, and in keeping
with their special status the State has even enacted special laws. The Constitution, promulgated
in 1950, encompasses most rights included in the UN Convention on the Rights of the Child as
Fundamental Rights and Directive Principles of State Policy. Over the years, many individuals
and public interest groups have approached the apex court for restitution of fundamental rights,
including child rights. The Directive Principles of State Policy articulate social and economic
rights that have been declared to be “fundamental in the governance of the country and … the
duty of the state to apply … in making laws” (Article 37). The government has the flexibility
to undertake appropriate legislative and administrative measures to ensure children’s rights; no
court can make the government ensure them, as these are essentially directives. These
directives have enabled the judiciary to give some landmark judgements promoting children’s
rights, leading to Constitutional Amendments as is in the case of the 86th Amendment to the
Constitution that made Right to Education a fundamental right.

2.1-Constitutional Guarantees that are meant specifically for children include:

 Right to free and compulsory elementary education for all children in the 6-14 year age
group (Article 21 A)
 Right to be protected from any hazardous employment till the age of 14 years (Article
24)
 Right to be protected from being abused and forced by economic necessity to enter
occupations unsuited to their age or strength (Article 39(e))
 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 39 (f))
 Right to early childhood care and education to all children until they complete the age
of six years (Article 45)

2.2- Besides, Children also have rights as equal citizens of India, just as any other adult male
or female:

 Right to equality (Article 14)

 Right against discrimination (Article 15)
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

 Right to personal liberty and due process of law (Article 21)

 Right to being protected from being trafficked and forced into bonded labour (Article
23)
 Right of minorities for protection of their interests (Article 29)
 Right of 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)

3- Legislative Measures for the Child Rights Protection;

There are a plethora of statutes, Acts, legislations, judicial pronouncements at national and
international levels dealing with the protection of child rights. Most of these have provisions
to deal with the rehabilitation and protection of the socially and economically abused and
neglected children. Though the word child has not been defined under the Constitution of India,
the Constitution makers were conscious of the fact that the children require special treatment
on account of their physical and mental immaturity. This is reflected under various Articles of
the Constitution, such as Article 15(3) of the Constitution which empowers the State to make
special provisions for children and Articles 24 of the Constitution, ‘prohibits the employment
of children below fourteen years of age in factories and hazardous employment’. This certainly
reflects the concern towards the health and safety of the children.

3.1-Right to Education and the Law- The framers of the Indian Constitution were aware of the
importance of education, so they imposed a duty on the State under Article 45 as one of the
directive principle of the State Policy to provide Free and Compulsory Education to all children
until they attain the age of fourteen years, within ten years from the commencement of the
Constitution. At the time of making of the Constitution the framers were apprehensive that in
view of the financial condition of the State, it is not feasible to make education a fundamental
right under Part III of the Constitution and kept it as one of the directive principles in Part IV
of the Constitution.

The SC of India in its historic Unni Krishnan’s1 judgment in 1993 directed the Government
that all children up to fourteen years of age have fundamental right to education. The court in

1
Unni Krishnan, J.P. v. State of Andhra Pradesh, (1993) 1SCC 645: AIR 1993 SC 2178: 1993 AIR
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

this case, contented that Fundamental Right to Life under Article 21 of the Constitution should
be read in harmonious Construction with the directive principles of State policy under Article
45 to provide free and compulsory education to all children up to fourteen years of age
including those below six years of age. In the wake of this decision a demand was being raised
from all corners to make education a fundamental right. Consequently, the Government enacted
the Constitutional 86th Amendment Act, 2002 making the education a fundamental right under
Article 21-A of the Constitution2.

Article 21-A of the Constitution provides for free and compulsory education to all children in
the age group of six to fourteen years as Fundamental Right in such manner as the State may,
by law, determine. Consequently, The Right of Children to Free and Compulsory Education
Bill, 2008 was proposed to be enacted.

This Legislation is anchored in a belief that the values of equality, social justice, democracy
and the creation of a just and humane society can be achieved only through the provisions of
inclusive elementary education to all. To provide free and compulsory education is not merely
the responsibility of schools run or supported by the appropriate governments but also of
schools which are not dependent on government funds. To achieve these objectives the Right
of Children to Free and Compulsory Education Act has been passed in the year 20093 and has
been implemented since 1st April, 2010.

3.2-The Juvenile Justice (Care and Protection of Children) Act, 2015:- The Juvenile Justice
(Care and Protection of Children) Act, 2015 has come into force from 15th January, 2016 and
repeals the Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice
(Care and Protection of Children) Bill, 2015 was passed by Lok Sabha on 7th May, 2015; was
passed by Rajya Sabha on 22n December, 2015 and received Presidential assent on 31st
December, 2015.

Whereas, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act,
2000 to make comprehensive provisions for children alleged and found to be in conflict with
law and children in need of care and protection taking into consideration the standards

SCW 863.
2
Added by the 86th Constitutional Amendment Act, 2002
3
Act no. 35 of 2009.
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

prescribed in the Convention of the Rights of the Child, the United Nations Standard Minimum
Rule for the Administration of Juvenile Justice, 1985.

3.3- The Child Marriage Restraint Act, 1929- Child Marriage is a violation of Human Right. It
compromises with the development of children particularly girl child, often resulting in early
pregnancy and her social isolation with little education. Child marriages are also responsible
for child trafficking. The Child Marriage Restraint Act, 1929 was passed basically to restrain
the solemnization of child marriages.

In the year 1978 the Child Marriage Restraint Amendment Act was passed to increase the
minimum age of marriage to eighteen years for girls and twenty-one years for boys. The Hindu
Marriage Act, 1955 also prescribes the same minimum ages of marriage. Section 2(b) of the
Child Marriage Restraint Amendment Act defines “child marriage” as a marriage in which
either of the contracting parties is a child. Section 2(a) of the Act defines child as a person who,
if a male has not completed twenty one years of age and if a female, has not completed eighteen
years of age.

3.4- The Prohibition of Child Marriage Act, 2006- The basic objective of the Prohibition of
Child Marriage Act, 2006 is to provide for the prohibition of solemnization of child marriages
and for matters connected therewith or incidental thereto. Some of the specific features of Act
are-

 Child Marriage is voidable at the option of the contracting party who was a child at the
time of the marriage, provided that the petitions for annulling a child marriage by a
decree of nullity are filed at the District Court only by a contracting party to the
marriage.4
 While granting a decree of nullity, the District Court shall make an order directing both
the parties to the marriage and their parents or their guardians to return to the other
party, money, valuable ornaments or other gifts received on the occasion of marriage
by them from the other side, or an amount equivalent to the value of such valuables
ornaments and other gifts5.

3.5- The Child Labour (Prohibition and Regulation) Act, 1986: The Child Labour (Prohibition
and Regulation) Act is an outcome of various recommendations made by series of Committees,

4
Section 3(1), The Prohibition of Child Marriage Act, 2006.
5
Section 3(4), ibid.
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

such as, the National Commission on Labour 1969, the Committee on Child Labour 1979,
Gurupadswamy Committee on Child Labour 1976, and Mehta Committee 1984. From a reading
of the recommendations made by various Committees, there was a national consensus in favour
of a uniform comprehensive legislation, to prohibit the engagement of children in certain
employments.

Child Labour (Prohibition and Regulation) Act is a social legislation, designed to protect the
interest of a class of society who, because of their weak socioeconomic conditions, deserves
such protection. The Act seeks to achieve the following objectives:

 To ban the employment of children, who have not completed their fourteenth year of
age in specified operations and processes.
 To lay down a procedure to decide modification to the Schedule of banned occupations
or processes.
 To regulate the conditions of work of children in employments where they are not
prohibited from working.
 To lay down enhanced penalties for employment of children in violation of provision
of this Act, and other Acts which forbid the employment of children.

3.6- Provisions of Indian Penal Code, 1860 Relating to Child Rights Violation-

 Section 317. Exposure and abandonment of child under twelve years, by parent or
person having care of it.
 Section 318. Concealment of birth by disposal of dead body.
 Section 360. Kidnapping from India.
 Section 361. Kidnapping from lawful guardianship.
 Section 363. Punishment for kidnapping.
 Section 363A. Kidnapping or maiming a minor for the purposes of begging.
 Section 364A. Kidnapping for ransom etc.
 Section 365. Kidnapping or abduction with intent secretly and wrongfully to confine
person.
 Section 366A. Procuration of minor girl.
 Section 366B. Importation of girl from foreign country.
 Section 369. Kidnapping or abducting a child under ten years with intent to steal from
its person.
 Section 370. Trafficking of person.
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

 Section 370A. Exploitation of a trafficked person.

 Section 372. Selling minor for the purposes of prostitution etc.
 Section 373. Buying minor for purposes of prostitution etc.
 Section 376. Punishment for Sexual Assault.

3.7- Criminal Law (Amendment) Act, 2013- The Criminal Law Amendment Act, 2013 is also
popularly known as the Anti-rape Act. It amends the following:

 The Indian Penal Code, 1860

 Code of Criminal Procedure, 1973
 The Indian Evidence Act, 1872
 Protection of Children from Sexual Offences Act, 2012.

Amendments to the Indian Penal Code, 1860:

 Section 375. Rape

 Section 376. Punishment for Rape
 Section 376A. Punishment for causing death or resulting in persistent vegetative state
of victim
 Section 376C. Sexual Intercourse by a Person in Authority
 Section 376D. Gang Rape
 Section 376E. Punishment for Repeat Offenders.

4- Judicial Pronouncement on Child Rights-

The role of the India Judiciary and the scope of judicial interpretation have expanded
remarkably in recent times, partly because of the tremendous growth of statutory intervention
in the present era. The judiciary plays an important role in the protection of fundamental rights
of the citizen and non-citizens alike.

The Court in series of cases has unequivocally declared that right to receive education by the
child workers is an integral part of right of personal liberty embodied in Article 21 of the
Constitution. In M.C. Mehta v. State of Tamil Nadu6, The Supreme Court directed that children
should not be employed in hazardous jobs in factories for manufacture of match boxes and

6
[1996] RD-SC 1576.
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

fireworks, and positive steps should be taken for the welfare of such children as well as for
improving the quality of their life.

Goodricke Group Ltd v Center of West Bengal, the Court held that it would be for the Centre
and State/Union Territories to raise necessary resources to achieve the goal of providing free
education. Recently Article 21-A has been inserted in the India Act, 2002 which provides that
the state shall provide free and compulsory education to all children of the age of six to fourteen
years in such manner as the state may, by law, determine.

Unni Krishnan J.P. v State of Andhra Pradesh7, Justice Mohan observed "in educational
institutions which are seed-beds of culture, where children in whose hands quiver the destinies
of the future, are trained. From their ranks will come out when they grow up statesmen and
soldiers, patriots and philosophers, who will determine the progress of the land."

Peoples Union for Democratic Rights v. Union of India8, also known as the Asiad Workers
case. The Supreme Court held that though the Employment of Children Act, 1938 did not
include the construction work on projects because the construction industry was not a process
specified in the Schedule to the Act, yet, such construction was a hazardous occupation and
under Art.24 children under 14 could not be employed in a hazardous occupation.

In Sheela Barse v. Union of India9, Sheela Barse, a dedicated social worker petitioned for the
release of such young children from jails, production of information as to the existence of
juvenile courts, homes and schools and for a direction that the District judges should visit jails
or sub-jails within their jurisdiction to ensure children are properly looked after when in
custody. The Court observed that children in jail are entitled to special treatment. Children are
national assets and they should be treated with special care. The Court urged the setting up of
remand and juvenile homes for children in jails. In Sheela Barse v Secretary Children Aid
Society the Supreme Court came forward to protect the rights of the children in the observation
homes.

Right of the child to development hinges upon elimination of prostitution. Success lies upon
effective measures to eradicate root and branch of prostitution. In Bachpan Bachao Andolan v
Union of India10, writ petition filed by HRLN, Supreme Court has ordered for implementation

7
(1993) 1SCC 645: AIR 1993 SC 2178: 1993 AIR
8
1982 AIR 1473, 1983 SCR (1) 456.
9
1986 AIR 1773, 1986 SCR (3) 443, 1986 SCC (3) 596
10
(2011) 5 SCC 1-A
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

of suggestions put forth during the hearing of this case, which will introduce significant reforms
in existing child protection regime.

In Gaurav Jain v. Union of India11, The Supreme Court held that the children of the prostitutes
have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be
part of the mainstream of social life without any pre-stigma attached on them. The Court
directed for the constitution of a committee to formulate a scheme for the rehabilitation of such
children and child prostitutes and for its implementation and submission of periodical report of
its Registry.

The brief survey of the above mentioned cases shows that the activism of the Indian Supreme
Court to protect the children from various type of exploitation. Although the Supreme Court
made laudable directions and suggestions in many instances to protect basic rights of poor
children, unfortunately these directions and suggestions are not followed and implemented by
the government machinery effectively. In this regards, the performance of the Indian Judiciary
stands out as a signal contribution to the implementation of human rights generally and that of
Child Rights in particular.

As such in the M.C. Mehta v. State of Tamil Nadu and Goodricke Group Ltd v
Center of West Bengal, Supreme Court of India emphasized on national Constitution and
international instruments, including the Convention on the Rights of the Child, the Indian
government is required to ensure that children do not engage in hazardous work. In Lakshmi
Kant Pandey v Union of India with object of ensuring the welfare of the child J. Bhagwati
directed the Government and various agencies to follow some principles as their constitutional
obligation to ensure the welfare of the child.

11
1990 AIR 292, 1989 SCR (2) 173.
 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

ACKNOWLEDGEMENT

It gives me immense pleasure and gratitude to thank my Human Rights, Refugee Law &
International Humanitarian Law teacher, Dr. Noorjahan Momin who gave me
opportunity to do this wonderful project which helped me in doing a lot of research and
I came to know about so many new things. I am thankful to her.

Secondly, I would like to give thanks to all my seniors who have guided throughout the
research process.

Lastly, I feel that my project would not have been completed without the help of my
parents and friends.

YOURS SINCERELY,

DEEPESH KUMAR SINGH

 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

ASSIGNMENT ON HUMAN RIGHTS, REFUGEE LAW

& HUMANITARIAN LAW

CHILD RIGHTS IN INDIA

NAME- DEEPESH KUMAR SINGH

B.A.LL.B 5TH SEMESTER (S/F)

ROLL NO- 16

TEACHER- DR. NOORJAHAN MOMIN.

 ASSIGNMENT ON THE CHILD RIGHTS IN INDIA

INDEX
S.NO TOPIC PAGE NO.

1. ACKNOWLEDGEMENT 3

2. INTRODUCTION

3. CHILD RIGHTS AND INDIAN CONSTITUTION

4. LEGISLATIVE MEASURES FOR CHILD RIGHTS

PROTECTION
5. JUDICIAL PRONOUNCEMENT ON SUBJECT OF CHILD
RIGHTS