CHAPTER I

INRODUCTION
1.1 General Background

Children are one-third of our population and all of our future. They are important part of the
nation. They are regarded as the foundation stone of the nation. The Wealth of a nation is not
so much in its of economical and natural resources but it lies more decidedly in the kind and
quality of the wealth of its children and youth. It is they who will be the creators and shapers
of a nation’s tomorrow. Children represent both the present and future. The Children of today
will be adults of tomorrow. Children are the source of inspiration and hope of society. Every
children should be brought up with love, care in peace and harmony. Children in developing
countries are facing several problems related to survival, development, protection and
participation without making a delay by waiting for their turn to come tomorrow, it has
become essential to protect and promote children from today itself by properly using the
resource and the means available in the country.

Children are among the most vulnerable members of society. The law of the state protects
children until they are deemed to be able to interact in society as adults. For this reason
children are treated differently from adults by the criminal justice system. The law which
deals with children found in breach of the criminal law is contained in the Children Act, 2048
This legislation is based on the philosophy that children in conflict with the law should only
be detained (custody) by the state as a last resort. There are many community based measures
which must be explored and exhausted before detention can be considered. The Juvenile
Justice system has given rise to many child rights concerns as children are often denied bail
for petty crimes, the responsible stakeholders do not carry out proper social investigations,
the conditions in the homes is often unsafe and inhumane, and juvenile justice boards are not
child friendly and functions like an adult court.

In the area of juvenile justice, National and international organization aims to reduce
incarceration while protecting children from violence, abuse and exploitation. It promotes
rehabilitation that involves families and communities as a safer, more appropriate and
effective approach than punitive measures. Justice systems designed for adults often lack the
capacity to adequately address these issues and are more likely to harm than improve a
child’s chances for reintegration into society. For all these reasons, many organization
strongly advocates diversion (directing children away from judicial proceedings and towards

1
community solutions), restorative justice (promoting reconciliation, restitution and
responsibility through the involvement of the child, family members, victims and
communities), and alternatives to custodial sentencing (counseling, probation and community
service).
Children who come in conflict with the law need to be informed about their rights. Right is
the fundamental concept of law. It is essential for the development of human personality.
However, there is no widely accepted single concept of right. There is no single way to
explain rights. It is contextual, situation based and incidental. It is, to a greater extent,
interlinked with freedom. There are various rights like legal rights, moral rights, and natural
rights and so on. The nature of natural right is based on law of nature whereas nature of legal
right is based on existing statutory provision of law. Likewise, the nature of moral right is
decided by the common social standards, values and norms of people. It is not enforce by the
state power and law. The basic nature of right is that it exists along with correlative of duty.
Right cannot be imagined without the co-relative duty. Someone has a right means another
has a duty to respect the right. The law itself protects the right imposing duty on others. If
there is no right, there is no duty and vice versa.

Human rights and fundamental freedoms are the birth rights of all human beings. So, their
protection and promotion is the first responsibility of the government 1. Human rights are the
basic rights required by a human being to live his life humanely. Since human being is the
main object of the society, human rights are supremely important. Freedom of life and
happiness are the inherent rights of a human being. Human right is a collective form of the
basic right of a human being. ‘All those rights which are essential for the protection and
maintenance of dignity of individuals and create conditions in which every human being can
develop his personality to the fullest extent may be termed human rights’ 2. Human rights are
rights inherent to all human beings, whatever our nationality, place of residence, sex, national
or ethnic origin, color, religion, language or any other status. We all equally entitled to our
rights without discrimination. These all rights are interrelated, interdependent and indivisible.
Fundamental rights are also called human rights.

Universal Declaration of Human Rights issued on December 10, 1948, which is the backbone
of human rights is the common achievement of all the countries. The preamble of the
Universal Declaration incorporated a form of natural law language by inserting ‘Whereas

1
Vienna Declaration, 1993, Para 1.
2
Maneka Gandhi v Union of India, A.I.R.1987 (597).

2
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.

In addition to the rights that are available to all people, there are rights that apply only to
children.  Children need special rights because of their unique needs – they need additional
protection that adults don’t.  The United Nations Convention on the Rights of the Child is an
international document that sets out all of the rights that children have – a child is defined in
the Convention as any person under the age of 18. 

Governments can decide whether they will ratify the Convention, which means that the
government agrees to make sure that all of these rights are available to children.  The
Convention on the Rights of the Child has been ratified by every country in the world.

The concept of rights has become one of the most reputable and positively connoted in
political theory. The desirability of promoting in principle the ideas represented by the
concept is far less controversial then, for example, the promotion of equality, democracy or
even liberty3. The spectrum of definitions pertaining to a right is broad and illuminating in its
different implications and ideological positions. For example, one approach sees rights as
‘normative attributes’ that belong to persons. The term philosophers use for self-conscious
human beings, conceiving of themselves as initiators of purposive actions. Another approach
regards rights as entitlements to do, have, enjoy or have done. A forth contends that rights
always and necessarily concern human goods, that is, concern what it is, at least in normal
circumstances, good for a person to have.

Children issues were neglected and undetermined in most of our societies and these issues
were guided by the principle of charity and welfare and hardly discussed in the public life.
The Rights of children had been raised often in different historical perspective in our world.
Geneva Declaration of the Rights of the Child 1924, Universal Declaration on Human Rights
1948 and the Declaration of the Rights of the Child 1959 are some important international
instruments related to rights of child prior to Convention of Rights of the Child, 1989,
however the issues related to their problem could not become a political agenda till the
“Convention on the Rights of the Children” (UN-CRC) was adopted by UN General
Assembly in 1989. Later, it emerged as a powerful political agenda in national, regional and
international level.

3
'MICHAEL FREEDEN, Rights, 1st Indian Reprint Delhi, 2 (1998)'.

3
Children are the source of inspiration and hope of society. Every children should be brought
up with love, care in peace and harmony. Children in developing countries are facing several
problems related to survival, development, protection and participation. Due to Nepal’s
socio-economic and political condition children facing various problems and are deprived of
their rights. And situation has directly or indirectly affects children in their social, physical,
mental, and emotional development.

Nepal is the state party to the Convention on the Rights of the Child (CRC), 1989, the
promotion and protection of the rights of children is one basic obligation of Nepal. It is the
international instrument that is applied within the territory of the state as municipal law
according to Section 9(1) of Treaty Act, 2047. The optional protocols of CRC (the optional
protocols on Trafficking of children for commercial sexual exploitation and pornography and
use of children in the arm struggle) are also important documents Nepal has ratified for the
protection and promotion of rights of child in Nepal. The rights of children in Nepal are
protected under the different provisions of Muluki Ain 2020 B.S, Criminal Code 2074,
Muluki Criminal Procedure, 2074, Children Act, 2075, Children’s Act and Child Labour
(Prevention and Control) Act, 2000. Nepal has also ratified the ILO Convention No. 182 on
13 September 2001 and the ILO Convention against Worst Forms of Child Labour. To bring
Positive impacts in the lives of children who are living and working in difficult circumstances
our Country Nepal had taken initiation by ratifying international efforts.

In sum, Child Rights and protection sector represents the important dimension of the Human
Rights Campaign. The extensive objectives of the Human Rights Campaign cannot be
achieved without protection and promotion of the Child Rights. In this context, the Child
Rights are matter of concerning to all. Underlining the need, the General Assembly of
United Nations Organization adopted the Convention on the Child Rights (CRC) in
1989. The Convention has defined and ensured the Child Rights related to the Right to Life,
Right to Protection, Right to Development and Right to Participation. The provisions related
to responsibilities of the family, the society and the State to implement the Right of the
Child are defined in the Convention. Nepal has ratified the CRC on September 14, 1990.
Activities of the Governmental and the non-governmental agencies are focussed on ensuring
the Child Rights by formulating the laws, regulations, policies, work plans and programs
based on the commitment.

Constitution of Nepal (2072) Article 39 states Rights of the every child:

4
(1) Every child shall have the right to name and birth registration along with his or her
identity.

(2) Every child shall have the right to education, health, maintenance, proper care, sports,
entertainment and overall personality development from the families and the State.

(3) Every child shall have the right to elementary child development and child
participation.

(4) No child shall be employed to work in any factory, mine or engaged in any similar
other hazardous work.

(5) No child shall be subjected to child marriage, transported illegally, abducted/

kidnapped or taken in hostage.

(6) No child shall be required or used in army, police, any armed groups or be subjected,
in the name of culture or religious tradition, to abuse exclusion or physical,
physically, mental, sexual or other form of exploitation or improper use by any means
or in any manner.

(7) No child shall be subjected to physical, mental or in any other form of torture in
home, school, or other places and situation whatsoever.

(8) Every child shall have the right to juvenile friendly justice

(9) The child who is helpless, orphan, disabilities, conflict victim, displaced, and
vulnerable shall have the right to get special protection and facilities from the State.

(10) Any act contrary to sub-articles (4), (5), (6) and (7) shall be punishable by law and a
child who is the victim of such act shall have the right to obtain compensation from
the perpetrator, in accordance with law.

Children's Act, 2075 defines "Child" means every human being below the age of 18years. Sec
3 of children’s Act, 2075 mention every child have Rights to a life. Likewise Sec 4 mention
every child have right to name and nationality. From birth, every child shall be granted a
name according to the religion, culture and tradition by his father, if the father is not available
by his mother and if the mother is also not available by any other member of his family. In

5
cases where the father, mother or any other member of his family is not alive or their
whereabouts are not known, the person or organization bringing up the child shall give a
name to such Child. This Act provides provisions regarding rights against discrimination 4,
Right to Privacy5 and so on. It also ensure the responsibility of states as well as the family
member towards the children.6 Regarding the right of accused children there is various
provisions in this Act.

The international community and the UN system have a firm belief on the principle of the
“First Call for the Children”. The children as a group have been recognized as an asset of the
nation and precious of all. They are the ones who are expected to bear burden of the nation
tomorrow. But they are innocent, vulnerable and dependent. They are also curious, active and
full of hope. Their time should be one of joy and peace, of playing, learning and growing.
Their future should be shaped in harmony and cooperation. Their lives should mature, as they
broaden their perspectives and gain new experiences7.

Article 12 of the Convention on the Rights of the Child Provides:

1. States Parties shall assure to the child who is capable of forming his or her own views
the right to express those views freely in all matters affecting the child, the views of
the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose the child shall in particular be provided the opportunity to be heard in
any judicial and administrative proceedings affecting the child, either directly, or
through a representative or an appropriate body, in a manner consistent with the
procedural rules of national law.”

1.2 Research Problem

Children are the base of the future and therefore they are viewed as zone of peace.
Today people are unable to enjoy their rights properly, their rights are curtailed by
government as well as other sector. Children rights especially the rights of accused children

4
The Children Act, 2075, Sec 5.
5
'Ibid'. Sec 11.
6
'Ibid'. Sec 16
7
'World Declaration on the Survival, Protection and Development of Children, 1990, 2.'

6
have been violated day by day. State is not doing duty according to international instruments
and domestic legal instruments. Therefore, the research is conduced to solve the following
questions:-
 Whether the Laws regarding child's right and protection is sufficient to tackle the
problems of accused children.
 To what extend the legal provisions relating to rights and protection of accused
children is effectively implemented.
 How far the role of government and Judiciary are effective for securing the rights of
accused child.

1.3 Objectives of the Study

 To study and analyze the laws regarding rights of accused children and try to find out
its problem.
 To analyze the problems and difficulties in implementing the laws and rights
regarding accused children
 To evaluate the role of government and judiciary towards ensuring the right of
accused child.

1.4 Rationale of the Study

Our constitution has guaranteed Right of every child. Ensuring right of accused children is
one of the duty of state. In context of Nepal, Children rights especially the rights of accused
children have been violated day by day. State is not doing duty according to international
instruments and domestic legal instruments. So the study will be significant to draw the
situation of accused children so that it helps to recommend the concern agencies to ensure
the dignified life of accused children as well as to know about the provision of the different
acts regarding child right, provision regarding it, this study is fruitful for the student of law
,university teacher, lawyer and lawmaker, who are interested in further researcher in this
areas or subject matter.

1.5 Limitations of the Study

This study is confined to the legal status, rights of accused children and juvenile justice
system in Nepal and legal provisions regarding it. However, child right is a vague topic so in
one paper it is impossible to cover all the rights of children. So, here the researcher has

7
focused only the right and legal status of accused children. However to compliance with
international instrument with Nepalese context some of the international instruments are
taken into consideration to know the present status of the accused children.

There are various issues of child rights around the world. But this study is confined only to
right of accused child in Nepal to know their legal status and find out whether their rights are
compliance with international standards or not.

1.6 Organization of the Study

This research paper is divided into five chapters.

1. The 1stchapter deals with the introduction and background, statement of the problem,
objectives of the study, Rationale of the study, and limitation of the study.
2. The 2nd chapter deals about the Literature Review.
3. The3rdchapter deals with the methodology of the study.
4. The 4th chapter deals about the conceptual framework which contains concept of rights of
accused Children, meaning of criminally accused children their rights , child rights and its
fundamental aspects, Nature and characteristics of child rights, historical development of
child rights and situation of child rights in Nepal.

5. The 5th chapter deals with the National and International legal instrument regarding rights
of accused child.
6. The 6th chapter deals with the analysis and overview of rights of accused child and
judicial decision regarding rights of accused children in Nepal.
7. The 7th chapter deals with conclusion, and suggestions.

8
 CHAPTER II
LITERATURE REVIEW
2.1 Review of Literature

The materials concerning about the Rights of accused children are the subject matter of
this research. Few literature reviews are found regarding the study. In the course of
preparing this seminar paper, various books, articles, dissertations were collected, studied
and reviewed.

For this, the researcher has consulted the following materials:

A) Book:

Krishna, Prasai & R. N. Khanal. Human Rights an Evolution, Practices and Comparative
Studies. (2012)

This book provides a lot of information about Human Right. This book provides a lot of
historical detail as well as evolution and practice. This book is high importance for the
purpose of historical details and fact as well as the documents for reference when discussing
the evolution and development of comparative studies.

CHILDREN RIGHTS AND JUSTICE IN NEPAL. Tribhuvan University Faculty of Law

Criminal Law Subject Committee, July (2012)

This book is expected to have a profound impact on the justice administration process,
particularly on children’s justice in Nepal. This book aims to fill up a crucial gap in the
understanding and practice of principles and procedure regarding victim and witness
protection issues and juvenile justice administration process in Nepal. This book is also
helpful in enhancing clarity and providing new dimensions to children justice system in
Nepal.

B) Reports

9
Reports on Implementation Status of National human rights commission and universal
periodic review Recommendations on Child Rights, (2013)

This document contains implementation status of children related recommendations made to

the Government of Nepal by the Universal Periodic Review (UPR) mechanism of the Human
Rights Council and by National Human Rights Commission Nepal.

The non-implementation of many recommendations on child rights has increased the level of
frustration among victims and their kin as they are unable to access justice for a long time.
Despite increased response of the Government of Nepal to awarding compensation to
victims, regrettably, none of the perpetrators indicted have been subject to any prosecution.

Report on Child Rights in Nepal: Towards a Brighter Future for Children (2015)

The report entitled “Towards a Brighter Future for Children: a situation analysis of child
rights in Nepal, 2015” is prepared by a study team for the Royal Norwegian Embassy in
Kathmandu, Nepal. This provides an analysis of the realities and challenges of child rights
implementation and perspectives for future development and collaboration. As per the terms
of references, this study has mapped out and assessed the evolution of child rights, current
situation of the state of child rights and the ongoing development interventions in Nepal from
the child rights perspectives. This report has also assessed progress in children’s sector and
has tried to identify gaps and challenges for the implementation of child rights. Likewise, this
report has also critically reviewed the roles and responsibilities of state mechanisms
responsible for the promotion and protection of the rights of the child.

10
 CHAPTER III
METHODOLOGY AND RESEARCH DESIGN

This had been an exploratory and descriptive study as it tries to explore and describe the
legal mechanism relating shareholder right's in Nepal. This research is based on doctrinal
research where both primary and secondary data has been collected and utilized for the
fulfillment of the objective.

3.1 Nature and Sources of Data

This study is based on doctrinal research. Both, primary and secondary sources of data
have been collected, analyzed and studied. Among them Constitution, Acts, Rules, Bye-
laws and judicial decisions are the primary sources of information. Similarly, books,
articles, journals, reports, periodicals, dictionaries, are secondary sources of information
for this study. All the information is collected from various libraries located Kathmandu
valley such as Chakrabarti College of Law Library, Nepal Law Library, Central Law
Library, Nepal Bar Association Library and so one. In this paper, in the case of citation
and Bibliography Style Guide to Academic Writing and college Papers of Chakrabarti
Habi Education Academy College of law has been followed.

3.2 Universe/Population

The universe of this study is the rights of accused children which concerns especially on
Nepalese context. Basically, the secondary data to be employed in the study shall be
limited Nepalese legal provisions and international measures.

3.3 Sampling Method

The study employed purposive sampling method.

3.4 Tools and Techniques of Data Collection:

One of the main tools used for the data collection is the use of both primary and secondary
methods while preparing the paper. International conventions, Nepalese law and the cases

11
 have been used as primary sources and various bulletins, newspaper, articles, previous
research paper has been used as secondary source.

3.5 Data analysis and presentation

The presentation of data is based on Analytical, Descriptive and Explanatory format.

12
 CHAPTER IV

4. CONCEPTUAL FRAMEWORK REGARDING RIGHTS OF THE

ACCUSED CHILDREN

4.1 Meaning and Definition

4.1.1 Children

There is no universal definition of children under laws of different countries, including

Nepal. The definition of child varies according to the purpose under domestic and
international law.

The Children Act, 2075, an Act made for the unification and amendment of laws relating to
children in Nepal, defines “children who have not completed the age of eighteen. 8The
Children Act, 2048, an Act made for the wellbeing of children in Nepal, defines “children
who have not completed the age of sixteen”.9However new civil code and Criminal code
defines children as those who have not completed the age of Eighteen. 10This age is the legal
basis and standard for differentiating a child from an adult, unless otherwise provided by
other Acts.

The existing definition under the national and international law is thus flexible and does not
follow a mathematical or mechanical definition. Dictionary meaning also follow similar
approach. The Nepali comprehensive Dictionary defines “Children” as minor, baby, newly
born, innocent human beings, and not matured person.11

According to Black’s Law Dictionary:

“Child or Children means progeny: offspring of parentage, unborn or recently born human
being…”12

The Oxford Advanced Learner’s Dictionary has defined in the following way:

8
The Children Act, 2072, Sec J.
9
The Children Act, 2048, Section 2(a).
10
The Country Criminal Code, 2074, Sec 2(e).
11
Bal Krishna Pokhrel et al., Nepali Comprehensive Dictionary, RONAST, Kathmandu, 2040, 960.
12
'Henry Compbell Black & St. Paul Minn, Black’s Law Dictionary with Pronunciation, (West Publishing
Co.,1990) 239'.

13
The term child means a “young human being who is not yet an adult; boy or girl; unborn
human being, baby, inexperienced person; person who behave like a child”13

In conclusion, dictionary meaning, Regional convention of South Asia, Labor Related

Convention, and The United Nations Conventions, other documents, and national laws of
some countries have determined different ages depending upon the purpose of the meaning
and definition of children. In Nepal, the amendment proposal of 2063/5/13/ B.S. of the
Children’s Act14 was revised and submitted as a new draft of the Children’s Act in 2066
which defines children as person who is below the age of eighteen years. At present there are
some categories of children requiring special protection; such as abandoned children without
15
any one to take care of, orphan children and voluntarily neglected children,16 refugee
children, labor children, Street children, Children in armed conflict & displacement, abused
children, sold children, trafficked children, discriminated children, disappeared children,
disable children, children working in circus, children with HIV AIDS, unborn children etc.

4.1.2. Criminally Accused Children

Criminally accused children are often consider as those children, who are in conflict with the
law'. It refers any person below the age of 18 who has come in contact with the justice system
as a result of committing a crime or being suspected of committing a crime. Most children in
conflict with the law have committed petty crimes such as vagrancy, truancy, begging or
alcohol use. Some have committed more serious offenses. Some children are coerced into
crime by adults who use them as they know they cannot be tried as adults. Too often,
prejudice related to race, ethnicity or social and economic status may bring a child into
conflict with the law even when no crime has been committed, or result in harsh treatment by
law enforcement officials.

Often prejudice, stereotyping and discrimination brings children into conflict with law
without a crime being committed. More than 1 million children worldwide are detained by
law officials. In institutions children are often died access to medical care and education
which are part of their rights. There are various reasons why children end up committing
crimes. One of the prime reason behind it is illiteracy or education up to primary level only.
13
'Sally Wehmeier et al., New Oxford Advanced Learner’s Dictionary, (Oxford, 2005) 256'.
14
'National Human Rights Commission (NHRC), Child Right: Recommendation and Implementation Status
Studies Report, NHRC, Kathmandu, 32 (2008)'.
15
The Children Act, 2048, Sec 2(e).
16
Condition & Procedures for the Adoption of Nepali Children by Foreign Citizen, 2065, no.2(e) and
2(f).

14
Not only this, children are often victims of crime as they are used for begging, drug peddling,
and prostitution.

According to Articles 37 and 40 of the convention on the rights of the child (1989), children
in conflict with the law have the right to treatment that promotes their sense of dignity and
worth, takes into account their age and aims at their reintegration into society. Also, placing
children in conflict with the law in a closed facility should be a measure of last resort, to be
avoided whenever possible. The convention prohibits the imposition of the death penalty and
sentences of life imprisonment for offences committed by persons under the age of 18.

4.1.3 Rights

The concept of right has a provenance in the French revolution. The philosophers like
Rousseau, Voltaire, Dante and other contemporary philosophers advocated for the Natural
right of man and geared the French revolution. The concept of right is closely linked with the
concept of justice.

The concept of rights has become one of the most reputable and positively connoted in
political theory. The desirability of promoting in principle the ideas represented by the
concept is far less controversial then, for example, the promotion of equality, democracy or
even liberty17. The spectrum of definitions pertaining to a right is broad and illuminating in its
different implications and ideological positions. For example, one approach sees rights as
‘normative attributes’ that belong to persons. The term philosophers use for self-conscious
human beings, conceiving of themselves as initiators of purposive actions. Another approach
regards rights as entitlements to do, have, enjoy or have done. A forth contends that rights
always and necessarily concern human goods, that is, concern what it is, at least in normal
circumstances, good for a person to have.

Right is the fundamental concept of law. It is essential for the development of human
personality. However, there is no widely accepted single concept of right. There is no single
way to explain rights. It is contextual, situation based and incidental. It is, to a greater extent,
interlinked with freedom. There are various rights like legal rights, moral rights, and natural
rights and so on. The nature of natural right is based on law of nature whereas nature of legal
right is based on existing statutory provision of law. Likewise, the nature of moral right is
decided by the common social standards, values and norms of people. It is not enforce by the

17
'See supra/infra note 3 at 2'.

15
state power and law. The basic nature of right is that it exists along with correlative of duty.
Right cannot be imagined without the co-relative duty. Someone has a right means another
has a duty to respect the right. The law itself protects the right imposing duty on others. If
there is no right, there is no duty and vice versa. According to Salmond, the basic
characteristics of legal rights are as follow18.

 Right is vested in person who is called subject of the rights. This means right is not
available to the animals and goods. Human beings are entitled to rights.
 It is available against the person, upon whom lies the correlative duty. It is related to
object.
 It obliges the person bound to an Act or omission in favor of the person entitled which
is the matter, substance or content of legal rights.
 The act or omission relates to something which can be taken as the object or subject
matter of the right.
 Every legal right has a title. The right is vested in its owner based upon reason of facts
or events.

Therefore, the nature of right has multi-dimensions. It requires a subject who is the owner of
the right. It always require a duty on the part of another person. It provides exclusive right to
the holder of the right. There is a title over the objects for which the rights are obtained.

The scope of right is very broad in nature. Each and every social action is either a part of
right or duty. They are the accelerators of human development. The concept of right is
applicable in each and every area, action, structure and function of society. It is the key
demarcation line to run our existing society. In the absence of right, no property, ownership,
rule of law, person, possession, liability and obligation can be well administered. All rights
focus on the human rationality and applicability which interact with the various social and
interpersonal fields. The scope of rights is extendable to the state mechanism, system of
government, social milieu, economic field, political, social, cultural and other areas of human
concern and where human development is necessary. However, the most profound area of
right is civil and political, economic, social and cultural, environment and solidarity right19.

18
'Dr. S.P. Dwivedi, Jurisprudence and Legal Theory (Central Law Publications, Allahabad, 2007) 41'.
19
'Tribhuvan University Faculty of Law Criminal Law Subject Committee, Children Rights and Justice in
Nepal, 2 (2012)'.

16
4.2 Classification of Rights

There are various concept of rights like passive or active rights, subjective or objective rights,
moral rights, fundamental rights, natural rights, human rights etc.

4.2.1 Natural Rights

The rights which are available by the nature itself to the human beings are called the natural
rights. Human beings have many natural instincts which they possess. All their characters and
behaviors are decided by nature. No human being can breach and violet it. These rights are
also called inalienable, non-artificial or non-manmade, universal rights. Natural rights are not
varied from people to people, society to society and state to state. They remain the same
everywhere20.

4.2.2 Human Rights

Human rights contain the broader concept of rights. It is derived from the natural rights of
people. Human rights are available by being human beings. Though all constitutional rights,
legal rights and natural rights are human rights by their nature, still human rights are
international in nature and applicable to citizens of the world. human rights spread all over
the world after the Universal Declaration of Human Rights, International Covenant on
Economic, Social and Cultural Rights (ICESCR), 1966, International Covenant on Civil and
Political Rights (ICCPR), 1966 and number of other Declarations, Treaties and Conventions
came into being. In the modern time, League of Nations and United Nations Organizations
have played vital role to establish the modern international human rights21.

4.2.3 Constitutional Rights

Constitutional Rights are those rights which are guaranteed by the provisions of the
constitution of a given nation. Fundamental rights are also constitutional rights.
Constitutional rights are applicable for the citizens of given country. Articles from 12 to 32 of
the Interim Constitution of Nepal, 2063 have guaranteed fundamental rights of Nepalese
people. The constitution of each and every country assigns the fundamental rights which are

20
'Ibid' 5.
21
'Ibid' 6.

17
applicable only to the citizens of the respective nation-state. The constitution itself safeguards
such rights and the constitutional remedy is available for these rights22.

4.2.4 Legal Rights

These rights are based on the existing Legislation, customs and tradition which are manmade
in nature. The provisions of legal rights vary from society to society, culture to culture,
political system to political system and state to state. These rights are sometimes called civil
rights or statutory rights i.e. the rights provided to children under the Children’s Act, 2048,
Rights to Information guaranteed under the Right to Information Act, 2064 of Nepal23.

4.3 Child Rights and Its Fundamental Aspects

Children are zone of peace. They are an inseparable part of the society. Based on this reality,
these days issues related with children are being raised in an institutional manner. According
to the Convention on Child Rights, the State has the responsibility of protection, promotion,
upkeep and fulfillment of children’s needs. In terms of the expression of commitments, Nepal
is positioned far ahead in the international arena. Along with the promulgation of the Interim
Constitution of Nepal-2007, for the first time Child Rights has been included as constitutional
obligation in Nepal as fundamental rights to guarantee protection of child rights at the
national level. Legislation related to Child Rights, Policies, Acts and others have been
formulated.

Human Rights are absolute, indivisible, interdependent, and inalienable entitlements of every
human being based on the status of being a person. They are founded on fundamental
freedom and equality. Many types of rights have branched from the core concept of human
rights in the form of women rights, labor rights, minority rights and so forth, one such branch
is children rights. As the name suggests, children’s rights are human rights of children that
define rights that are essential to protect and promote fundamental freedom and equality,
children’s rights also include such rights that are relevant and essential for children based on
their needs and status. Hence, children rights covers such rights as right to development,
participation, best interest protection and so forth that speak to the uniqueness of childhood.

4.3.1 Meaning and Definition of Child

22
'Ibid' 7.
23
'Ibid'.

18
There is no universal definition of child under laws of different countries, including Nepal.
The definition of child varies according to the purpose under domestic and international law.

The Children Act, 2075, an Act made for the unification and amendment of laws relating to
children in Nepal, defines “children who have not completed the age of eighteen. 24The
Children Act, 2048, an Act made for the wellbeing of children in Nepal, defines “children
who have not completed the age of sixteen”.25 This age is the legal basis and standard for
differentiating a child from an adult, unless otherwise provided by other Acts.

The existing definition under the national and international law is thus flexible and does not
follow a mathematical or mechanical definition. Dictionary meaning also follow similar
approach. The Nepali comprehensive Dictionary defines “Children” as minor, baby, newly
born, innocent human beings, and not matured person.26

According to Black’s Dictionary:

“Child or Children means progeny: offspring of parentage, unborn or recently born human
being…”27

The Oxford Advanced Learner’s Dictionary has defined in the following way:

The term child means a “young human being who is not yet an adult; boy or girl; unborn
human being, baby, inexperienced person; person who behave like a child”28

In conclusion, dictionary meaning, Regional convention of South Asia, Labor Related

Convention, and The United Nations Conventions, other documents, and national laws of
some countries have determined different ages depending upon the purpose of the meaning
and definition of children. In Nepal, the amendment proposal of 2063/5/13/ B.S. of the
Children’s Act29 was revised and submitted as a new draft of the Children’s Act in 2066
which defines children as person who is below the age of eighteen years. At present there are
some categories of children requiring special protection; such as abandoned children without
30
any one to take care of, orphan children and voluntarily neglected children,31 refugee
24
The Children Act, 2075, Sec J.
25
The Children Act, 2048, Sec 2(a).
26
'See supra/infra note 11 at 960.'
27
'See supra/infra note 12 at 239.'
28
'See supra/infra note 13 at 256'.
29
'See supra/infra note 14 at 32'.
30
The Children Act,2048, Sec 2(e).
31
'Condition & Procedures for the Adoption of Nepali Children by Foreign Citizen, 2065, no.2(e) and
2(f)'.

19
children, labor children, Street children, Children in armed conflict & displacement, abused
children, sold children, trafficked children, discriminated children, disappeared children,
disable children, children working in circus, children with HIV AIDS, unborn children etc.

4.3.2 Nature and Characteristics of Rights of accused Children

In the area of nature and characteristics of accused children rights, Distinctiveness is one of
the essential characteristics. However in addition to specific and exclusive rights of child, the
civil rights and liberty of adults are also the rights of children. Adults can’t exercise the rights
of child, they have to fulfill obligations towards the children’s. In a writ petition filed before
the Supreme Court against the decision of the District Administration Office that did not
allow registration of an association of children, the full bench, in its mandamus order, held
that children have right to register an association with or without conditions.32

Rights of the child are the concern of everyone. The future of a nation and identity of adults
depends on the physical, mental and intellectual development of children’s. If they are in
wrong track their adulthood will also be effected. So, it is in everyone’s interests to ensure
proper development of children’s physical, mental and intellectual ability. In this task, the
state’s obligation and their role are fundamental.

Child rights assume separate legal proceeding and judicial arrangements. This is because of
the recognition of separate juvenile justice system. The objectives of separate justice system
are to ensure an opportunity for children to reform, in both types of cases where children are
in conflict with law or are victims. The Juvenile Justice (Procedures) Rules, 2063, drafted
under the authority of the Children’s Act, 2048 has provided numerous provisions in this
regard investigating officer should wear ordinary dress instead of police dress while doing
investigation.33 Examination and inquiry with a child should be done in a child friendly
environment34, and social worker, child export or child psychologist, in addition to the district
Judge, should constitute the panel hearing the case relating to children 35 , hearing of a case in
36
a child friendly environment and a copy of written evidences and charge sheet should be
provided to parents.37 These are quite different procedures than the procedures applied in case
of adults.
32
Tilottam Poudel v HMG, Ministry of Home, NKP 2058 S.C. (1-5).
33
The Juvenile Justice (Procedure) Rules, 2063, Rule 4.
34
'Ibid' Rule 5.
35
'Ibid', Rule 6.
36
'Ibid' Rule 12.
37
'Ibid' Rule 7.

20
The Children Act, 2048 incorporates several other provisions relating to rights of child. They
include, right relating to taking care of children and their property who do not have their own
families 38, provisions of guardians 39, central and district child welfare boards to promote
child welfare 40, establishment and administration of child welfare homes 41, keeping child
without anyone to look after in child welfare home 42, establishment and administration of
child reform home to keep children during investigation and after trial 43, establishment and
operation of orphan and center for mentally retarded children .44

4.4 Principles of Child Rights

The principles incorporated in the United Nations Convention on the Right of the Child, 1989
have been incorporated in the existing constitution and other laws of Nepal. These basic
principles are as follows:

4.4.1 Principle of Non-discrimination

According to Article 2 of the Child Rights Convention45, the child right should be enforced
without any discrimination and state parties shall respect and ensure the rights without
discrimination of any kind, irrespective of the child’s or his or her parent’s or legal
guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other status. The Interim Constitution of Nepal,
2063 has also recognized this principle in Article 13.

4.4.2 Principle of Survival and Development

According to Article 6 of the Convention, every child possesses the inherent right to life and
their survival and development to the maximum extent possible. This principle has been
recognized in Article 12 (1) of the Interim Constitution of Nepal, 2063 by providing
everyone’s right to live with dignity under the right to personal liberty. At present, in Nepal,
different programs have been launched for the physical, social, intellectual and cultural
development and survival of children which includes vaccination, diet, infant mortality,
education, health, etc.
38
The Children Act, 2048, Sec 29.
39
'Ibid' Sec 22-31.
40
'Ibid' Sec 33.
41
'Ibid' Sec 34.
42
'Ibid' Sec 35.
43
'Ibid' Sec 42.
44
'Ibid' Sec 43.
45
The Child Right Convention, 1989, Article 2.

21
4.4.3 Principle of Best Interests

The best interest’s principle’s objective is to serve maximum for the interest of children.
Articles 3 and 9 have emphasized this principle. This principle has been adopted in articles
22 and 13 (3) of the Interim Constitution of Nepal, 2063 and by other existing laws relating
to children. The World Declaration, 2000 passed by the United Nations Special Assembly of
children has also emphasized that this principle is functional.

4.4.4 Principle of Participation

This is also understood as a principle of respect of the views of the child. The participation of
children entails sharing of their thoughts effectively as a member of the society and a person
and to enable them to influence the decision that concerns their interest.

4.5 Historical Developments of Rights of accused children in International Arena

Since the beginning of the twentieth century the development of the international law on the
rights of the child has paralleled in part of the development of the general body of
international human rights law. The CRC and other relevant human rights and juvenile justice
instruments have set standards for juvenile justice systems. United Nations bodies such as the
Economic and Social Council, the Committee on the Rights of the Child, the Human Rights
Committee and UNICEF have contributed to the process of global standard setting for
juvenile justice. Governmental and non-governmental organizations working onthe rights of
the child, fair trial and justice have also contributed, on the national as well as the
international level.

International instruments can be divided into ‘hard’ law and ‘soft’ law for practical
convenience. Treaties are hard law as they are binding on the states parties after they have
undergone the ratification process. Declarations, resolutions, guidelines and the likes are
usually soft law. These instruments have not undergone the process of ratification and they
are not strictly binding on states. Although soft law does not create any direct obligation on
states, it does carry the legitimacy of the international community. It is therefore highly
useful and important for the development of juvenile justice jurisprudence at the national and
international level.46 The CRC, ICCPR and CAT are hard laws on juvenile justice and

46
'Iswari Khatiwada, Ensuring Fair Trial in CSES Children in Conflict with the Law: Nepalese Perspectives
(electronic version 2005), 16.'

22
declarations and resolutions such as the Beijing Rules, the Riyadh Guidelines and the JDLs
are soft laws. In this article both the ‘hard’ and ‘soft’ laws have been taken as relevant

International instruments of juvenile justice. The international instruments on juvenile justice

can also be divided into ‘juvenile justice specific’ and ‘general human rights’ instruments. As
per this division, the CRC, the Beijing Rules, the Riyadh Guidelines and the JDLs are
juvenile justice specific instruments and the ICCPR and CAT are general human rights
instruments. For any analysis of juvenile justice standards both the specific juvenile justice
instruments and general human rights instruments are relevant.

The Juvenile justice system is not and should not be a part of the regular adult criminal
justice system. Nevertheless there may be some similarities in procedures and due process
guarantees. Measures for special care, special protection and special procedures are required
to protect and promote the best interests of the child in cases of children. Binding and non–
binding, juvenile justice specific and general human rights international instruments provide
the framework for the proper administration of juvenile justice and mechanisms for enforcing
them. The CRC requires state parties to develop and implement a comprehensive juvenile
justice policy. The Committee on the Rights of the Child has stated that “the comprehensive
approach should not be limited to the implementation of specific provisions contained in
Article 37 and 40 of the CRC, but should also take into account the general principles
enshrined in article 2, 3, 6 and 12 and all other relevant articles of the CRC”. 47 Rule 1(4) of
the Beijing Rules states that “juvenile justice shall be conceived as an integral part of the
national development process of each country within a comprehensive frame work of social
justice for all juveniles.’ Juvenile justice systems should also be developed systematically and
in a coordinated way so as “to improve and sustain the competence of personnel involved in
the system, including their methods, approaches and attitudes” (The Beijing Rules, Rule 1(6).

Following are the important aspects of establishing and proper functioning of comprehensive
and separate juvenile justice systems seen from a CRBA and directed at serving the best
interests of the child.The formal specific recognition or rights of child or political recognition
of child rights as ‘rights’ dates back to Declaration of the Rights of the Child 1924.

1. Declaration of the Rights of the Child, 1924

47
CRC, General Comment No. 10: Children’s Rights in Juvenile Justice 3, 2007(Publication no. CRC/C/
GC/10). Retrieved 20 March 2008: http://www2.ohchr .org/English/bodies/crc/docs/Advance Versions /
General Comment10-02feb07.pdf (accessed 20 March 2019)

23
The League of Nations adopted the Geneva Declaration of the Rights of the Child, drafted by
the International Union for Child Welfare. The Declaration established children’s rights to
the means for material, moral and spiritual development, special help when hungry, sick
disabled or orphaned, first call on the relief when in distress, freedom from economic
exploitation, and an upbringing that instils a sense of social responsibility48.

2. Universal Declaration of Human Rights (UDHR), 1948

UDHR is a Magna Charta for human rights. Article 25 and 26 of UDHR specifies rights of
the child. Article 25 mentions on special care and assistance and social protection, while
Article 26 on educational rights of the child.

3. Convention on the Rights of the Child, 1959

The UN General Assembly adopted the Declaration of the Rights of the Child, a further
commitment towards the protection and promotion of rights of the child. This declaration
recognized several rights such as freedom from discrimination and the rights to a name and a
nationality. It also specifically enshrines children’s rights to education, health care.

4. Convention on the Rights of the Child 1989

In November 20, 1989, UN General Assembly adopted the Convention on the Rights of the
Child with unanimous approves from member states. The CRC is concerned with the four
‘pillars’ Right to participation, Right to protection, Right to development and Right to
survival. Nepal also has ratified the convention on 1990 after the restoration of democracy.

5. World Summit for Children 1990

The World Summit for Children was held in New York. It included 71 Heads of State and
Government. The leaders signed the World Declaration of the Survival, Protection and
Development of Children as well as a plan of Action for implementing the Declaration setting
goals to be achieved by the year 2000.

6. Optional Protocols to the Convention on the Rights of the Child 2000

48
'Dinesh Prasad Gajurel, Child Rights in Nepal, Unpublished Manuscript, Kathmandu, Nepal Law Campus,
Faculty of Law, Tribhuvan University, 2007.'

24
 The UN General Assembly has adopted two Optional Protocols to CRC on the involvement
of children in armed conflict, and on the sale of children, child prostitution and child
Pornography.

From the very inception of the human rights movement, the rights of the child have been
raised as a major component. However, it could not be realized into practice. In order to
protect children from harm, devastation and crisis, the world community has been
continuously working for the rights of the child. Some of the other important instruments in
child rights to protect children’s rights specifically are

 United Nations Guidelines for the Prevention of Juvenile Delinquency

 UN Minimum Rules for the Administration of Juvenile Justice: the ‘Beijing Rules’
 UN Standard Minimum Rules for Non-Custodial Measures: The Tokyo Rules
 UN Rules for the Protection of Juveniles Deprived of their Liberty:
 UN Resolution 1997/30 – Administration of Juvenile Justice: the ‘Vienna
Guidelines’(1997)

7. SAARC Convention on Preventing and Combating Trafficking in Women and

Children for Prostitution, 2002

This convention has provided definition of child, prostitution, trafficking, and people
involved in trafficking, trafficked people, definition of protection homes and rescue of
trafficked people49. The Convention aims at prevention and combating of prostitution,
return and rehabilitation of women and children engaged in prostitution by creating
international network. The convention provides for punishment for people perpetuating
such acts, maintaining secrecy of the victim women and children by judicial officials,
provision for appropriate legal assistance and consultation, provision for mutual legal
support, extradition and prosecution, finding ways to prevent and combat trafficking on
women and children, care of victims and their treatment, return and rehabilitation of
victims and implementation of the convention.

4.6 Historical Development of Rights of accused children in Nepal

The development of Rights of accused children in Nepal can be viewed by dividing it in three
parts i.e.

49
'SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution,
2002'.

25
 1. Impact of Hindu Philosophy
2. Before promulgation of 1990 Constitution
3. After promulgation of 1990 Constitution

1. Impact of Hindu Philosophy

Nepalese society from the very beginning has been witnessing Hindu Philosophy. Our
country Nepal has been plasticizing Hindu Philosophy from ancient time thus its reflection in
some form or other in every aspects of religion, tradition, culture and even in domestic laws 50.
Therefore, analysis and review of Hindu philosophy and the provisions on the issues of
juvenile or children is necessary.

According to Hindu philosophy children are a symbol of God. Hence any misbehaviour or
wrongful act done by children were forgiven at that time for instance, the theft behaviour of
Lord Krishna were forgiven. The Hindu Philosophy seemed to treat children’s within specific
parameters.

According to Lord Manu, if a minor or a child mentally unsound commits any wrongful act
that is against the law, those children should be treated with ‘Bagdanda’. ‘Bagdanda’ refers to
oral threatening and scolding.

This shows that the minor and mentally unsound was given different treatment or given
protection as for the best interest of the child.

I. Kutilya Arthashasthara

Kautilya Arthasharsthara is one of the most influential literatures which embodies the
principle and philosophy of Hindu religion. It has the concept of arthashasthara and also
mentions about political and judicial maters that deals with the people (including children).

Kautaliya’s Arthasharsthara has made a clear demarcation line like the modern children law
by separating minor from adult- like in Nepal, a child below 16 years is termed a minor. It
has mention that a boy below 16 years and a girls below 12 years to be treated as a minor51.

Similarly regarding care and protection of children it has explicitly mentioned that a person
(particular the man) of the family is required to maintain his wife, children, and parents,

50
'Y.R Sangraula, Juvenile Justice in Nepal, 3 Kathmandu School of Law, 2003'.
51
'L.N. Rangarajan, Kautilya, The Arthasatra, Marital Life, Pegium Books, India, 1992, 396'.

26
minor. After the family, the duty to care minor lies on the senior most person of the society.
The person who is ‘an eldest of the village’ must act as trustee to take care of minors till they
grow up and become adults.

Subsequently, the duty of taking care of children’s also lied on the shoulders of judges.
Judges were responsible for taking care of women, minor, old people, the sick and those that
are helpless (orphans) because a judge was believed to be a one who is upholder of Dharma.
Finally and ultimately the duty of protecting children rested on the king. King has obligation
to protect the children, the old and the destitute at state expense in its “traffic code” 52 it
mention that only an adult shall be responsible for driving a cart and if the minors drives the
cart without accompanying adults, the owner of the cart will be held liable for punishment.
Going further it has made a special provision that a minor, the aged and the sick should not
be tortured at all.

The Kautilya Arthasasthra stated about release of the children who were in custody that the
children, aged and helpless should be released every month on a ‘full moon day’ and on the
‘birth day’53 of the king.

The Kautilya Arthasasthra has specific and clear provisions related to best interests of child
as compared to other religious Hindu Scriptures.

2. Before Promulgation of 1990 Constitution

In the context of Nepal there were no specific and separate laws for protection and promotion
of child rights. In later phase the concept of best interest of child was included in legal
provisions.

I Kirat, Lichhavis, Early shah Period

The ancient history of Nepal begins from the Kirat Period. Neither the Kirat’s Mundhum nor
the Lichhivis had any separate provisions relating to children’s protection or best interest of
child. However, King Jayasthiti Malla enacted Manab Nyaya Shastra (socio-legal code)
which exempted children from ordeal.

52
'Ibid' 490.
53
'See supra/infra note 51 at 397.

27
King Ram Shah promulgated a Sthithi54. This code established the principle of ‘Individual
Liability’ and eliminating the collective liability of members i.e. if a member of a family
violated the law all the members of the family were collectively punished. Hence this charter
shifted the liability to the particular individual and the children/parents were held not liable.

Hence during these periods there seem to be no separate legal provisions regarding child
rights.

II Muluki Ain, 1910 B.S55

The Muluki Ain (National Legal Code) that was promulgated by Jung Bahadur Rana in
January, 1858 A.D. was Nepal’s first codified legal code. It was based upon the moral
principles of Hindu Vedas and Shastras. The issues of delivering justice to children were
entangled with the religious philosophy and have provisions related to protection of children.

In the chapter of sahutirneko (debt payments) of Muluki Ain, 1910, mentions that if any child
commits a ‘Bijai’ (wrongful act) the father of child is responsible to pay the value of fine
involved. This provision demonstrates that wrongful act of the child must be forgiven but the
guardians were held liable because it is their duty to guide and discipline their child.

The word ‘Bijai’ means ‘Wrongs done by children’ so that the other suffers, or simply
children’s who distress others. This clearly demonstrates the prevailing Nepalese notion that
a child cannot commit a crime but only wrongs and even if he has done so it cannot be
equated as offences but merely as wrongs.

Similarly the chapter Mohi Talsinko (of tenant and landlords) of Muluki Ain 1910, No. 20,
21, 22 protect the children. It state that if any person seizes land and property of children’s
who have died in war or government job or seizes the property of orphan’s children, law will
punish such a person. This provision was enacted with a vision to prevent and protect the
children by making the concerned person liable if he commits anything against the child.

In chapter Adalatko (of court procedure) No. 17 mentions that the court personnel must first
give priority and decline the cases of children below 16 years age.

The chapter of Kayelnama Lekhaunae, (recording of confessions) in its No. 12, exempt any
child under 12 years from punishment who is charged of rape. But their statements must be
54
Ram Shah, a famous Shah King promulgated a sthithi which contained 254 articles which acknowledged
individual liability against collective liability.
55
Muluki Ain, 1910 is the first codified law of Nepal by Jung Bahadur Rana after his visit to England.

28
recorded and attested by their parents/guardians. The central idea behind this provision was to
exclude a child below 12 years from all kind of punishments. Here the parent’s role to
upbringing the child and take proper care and protection thereafter has also been reflected.

Jamani Garneko (of bailment), chapter of Muluki Ain mentions that if any child who is under
16 years of age signs any document such document is considered as invalid. This shows that
the child is still presumed to be immature, and has not attained a legal age. Hence any one
below the legal age (i.e. a minor) was considered to be incompetent. There was a belief that
young children were not sufficiently advanced to participate in the legal proceedings.

The chapter Kutpitko, (of assault and battery) mention that if any child in between 12-16
years assaults any person would be liable to half that punishment is for those who is below 16
years of age. The same chapter in No. 8 mentions the demarcation not only of a minor but
also of the adults and the person above 65 years is an aged. Hence this Muluki Ain not only
described the age of minor but has also set the limit of an adult and the aged.

No. 8 of chapter of Choriko (of theft) states that if a child in between 12-16 years commits a
theft for the first and second time he is liable to pay fine equivalent to the value of property.
If third time, the child is liable to pay double amount of the values of property. For the fourth
time, the liable is same with 3 years’ imprisonment and the imprisonment is doubles for the
fifth, sixth and seventh time theft.

Chapter of ‘Balak Ko Tasbir’ (fault of children) of Muluki Ain 1910 in No. 8 and 9 deals
with liability children’s who commit a wrongful act. No. 8 exempts children below the age of
12 years in all their faults and wrongful acts including culpable homicide committed by them.
It also mentions that such children must be inquired in a pleasing manner by prohibiting,
scolding during inquiry. It also state that if any adults instigate a child to commit the crime of
culpable homicide the adult would be liable by capital punishment and child would be liable
to be imprisoned for a month.

Similarly No. 10 of the same chapter mentions that if a boy below 11 years of age and girls
below 10 years of age engage in sexual intercourse, such children were exempted from all
kinds of punishment but will be warned if necessary. Its No. 7 provides discriminatory
punishment to children on caste basis and makes then liable for Prayaschitya. Prayaschitya is
a process of purifying soul religiously with an overcome the sin.

29
The provision of ‘care and protection of children’ was mentioned in chapter Sati Jane Ko 56
(of wife sacrifices). It prohibited women below 16 years to sacrifice herself with her dead
husband. Similarly, if the women had a son who is below 16 years or daughter the age of 5
years cannot sacrifice herself with her husband.

No. 16 of the chapter, Garib Kangal Ko (of poor) states that if children below 12 years were
found to have no guardians for care and protection and has no property to survive the
government officer would be responsible to care and protection under the state’s cost. If at
all, the child’s mother could not been traced the states is responsible to protect such children
at states expenses under the philosophy of ‘Parens Patriae’.

III Past Constitutions

i. Nepal Sarkar Ko Baidhanik Kanoon, 2004 B.S (Government of Nepal Act, 1948
A.D), it was the first written constitution that Nepal had. Under part of fundamental
rights in its article 4 provided that the children had right to free primary education.
ii. Nepal ko Antarim Sasan Bidhan, 2007 B.S (Interim Constitution of Nepal 1951 A.D).
This constitution is popularly called the interim constitution. Late King Tribhuvan
enacted it after the fall of the autocratic Rana Regime. This was the first democratic
constitution that was enforced and had provided wide range of issues of children.

The concept of imparting justice to children was more widen as it covered almost
every aspect of children. It included provisions for both positive aspect of growth and
prohibited against all the negative aspect. Its article 5 provides protection of the tender
age of children from exploitation. Similarly article mentioned that the government
could make special laws in order to regulate the issues of the children and women.

The constitution had explicitly mentioned children57. It states that children below 14
years shall not be employed in factories, mines or involved in hazardous works.
Hence, this constitution explored all the probable aspect that were not in interest of
the child and prohibited it.

iii. Nepal Adhirajya Ko Sambidhan 2015 B.S (The constitution of Nepal 1959 A.D). This
constitution was promulgated by King Mahendra. Its preamble states that,” the

56
Sati system has been abolished by Chandra Samsher, an evil social practice.
57
The Interim Constitution of Nepal, 2007 B.S., Art. 21.

30
 citizens could attain their all-around progress and fullest development through
political, social and economic justice”.
This constitution in its Article 4 abolished discriminatory punishment on the basis of
caste and guaranteed equal treatment before law. It also prohibited exploitation from
hazardous works.
iv. Nepal Ko Sambidhan 2019 B.S (Constitution of Nepal 1962 A.D). King Mahendra
issued a new constitution called Nepal Ko Sambidhan 2019. Its preamble stated that
the aim of Panchayat system was to promote the welfare of the people by bring about
the harmony in interest of the people of different classes and profession.

The constitution provides various fundamental rights. Child is not to be exploited in

any form58. It provided protection of mental, economic and social security to orphan
child. It also abolished the system of child marriage. Further, it guaranteed that the
child had right to free and compulsory primary education.

i. Muluki Ain, 2020

The previous Muluki Ain of 1910 was based on the dogmas of Hindu Philosophy. The main
drawback of the past Muluki Ain was that it prescribed unequal punishment to children on
the basis of their caste.

The Muluki Ain abolished the Sati Jane ko Partha (sacrifice of the wife after the death of
husband) for the purpose of protecting both wife and child. It provides different provision for
care, protection and punishment of children. The provisions related to child rights are No. 11,
24, 40, 83 of Adalati Bandobasta (court procedure), No. 3 of Husband and wife and No. 1 of
Rape. In these provisions priority has been given in determination in hearing of child case,
provision made on behalf of the child, special protection of girl’s child below 16 years sexual
relation through with consent is termed rape.

Punishment regarding the children in Muluki Ain 2020:

a. A child who is below 8 years is exempted from all kinds of punishment.

b. A child who is 8-12 years if committed any offence that becomes a fine for adult
must only be warned and scolding but these age group children could be
sentenced for up to 2 months, if commits any offence that imprisons an adult.

58
The Constitution of Nepal, 2019 B.S., Art, 19.

31
 c. The age group between 12-16 years if commits any offence would be liable for
half the punishment of that of an adult offender.
3. After the Promulgation of 2047 B.S ( 1990 A.D) Constitution

Late King BirendraBirBikram Shah promulgated Nepalese Constitution 1990 on November

9th 1990 A.D. This was the first constitution that transfers sovereignty from the king to its
people. This constitution guaranteed a wide range of fundamental rights to the citizens
(including children) as follows:

 Special provisions may be made by law for the protection and advancement of the interests
of women, children, the aged or those who are physically or mentally incapacitated or those
who belong to a class which is economically, socially or educationally backward59.

No minor shall be employed to work in any factory or mine, or be engaged in any other
hazardous work60.

The State shall make necessary arrangements to safeguard the rights and interests of children
and shall ensure that they are not exploited, and shall make gradual arrangements for free
education61. Further it mentions for making necessary arrangements on health and security to
children to ensure their protection and welfare.

After the advent of democracy in Nepal the issues of child rights to get recognition properly.
As a member of international community Nepal also committed for improvement the status
through different measures adopted by the United Nations is the Child Right convention,
1989 that Nepal has ratified. By virtue of second section 9 of the Treaty Act the provision of
CRC are applicable as Nepalese law.

 Children’s Act, 2048 B.S (1992 A.D)

Children’s Act was promulgated in the form of special legislation to safeguard and protect the
child.

In Nepal international instruments result the need for the better and comprehensive act in the
field of children. Thus the concept of protection and promotion of child rights and juvenile
justice began with the enactment of the Children Act, 1992.

59
The Constitution of Kingdom of Nepal, 2047, Art 11 (3).
60
'Ibid' Art 20(2).
61
'Ibid' Art 26(8).

32
As per the preamble, the enactment of this act is for the purpose of physical, mental,
intellectual development of the children and to protect the rights and best interest of children.

Children’s Act is an act for the care, protection, treatment, development and rehabilitation of
the neglected and for the liability, adjudication of certain matters relating to and disposition
of delinquent juveniles. The main objectives of this act are62:

1. Preserve rights and interest of children

2. Provisions relating to the protection of the child and relating to guardians
3. Provision relating to welfare
4. Children and criminal liability law
5. Crime against children
6. Juvenile Bench/Court

 Interim Constitution of Nepal 2063 Article 22 provides Rights of the accused Child:

(1) Every child shall have the right to his or her identity and name.

(2) Every child shall have the right to nurture, basic health and social security.

(3) Every child shall have the right against physical, mental or any other form of
exploitation. Such exploitative act shall be punishable by law; and any child so
treated shall be given such compensation as may be determined by law.

 Constitution of Nepal (2072)

1) Every Child have the right to education, health care nurturing, appropriate
upbringing, Sports, Recreation and overall personality development from
Family and the State.63
2) Every child shall have the right to Child Friendly Justice.64
3) Children who are helpless, orphan, physically impaired, Victims of Conflict
and Vulnerable, shall have the right to special protection and Facilities from
the state.65
 Children’s Act, 2075

62
The Children’s Act, sec 9.
63
The Constitution of Nepal, 2072, Art 39 (2) .
64
'Ibid' Art 39 (8).
65
'Ibid' Art 39 (9).

33
This act came into existence for the unification and amendment of laws relating to children in
Nepal. It contains various provision for the protection and promotion of child rights. It has
stated that Children means those children who have not completed the age of eighteen. 66 It
also has various provisions like right to privacy, right to life, right to nationality and so on. It
also has the provisions regarding child Justice67. For the accused children there is provision of
establishing of observation room68 and in trial phase there is provision that no children shall
be sent to jail for trial and asked for bail amount69.

4.7 Analysis on the growth of Constitution and laws relating to rights of accused
Children in Nepal

Our Constitution and Acts seems very progressive towards the rights of accused children. As
a state party to the CRC Nepal has the obligation to formulate laws and policies for the
implementation of the CRC. For the purpose of making legal arrangements to “protect the
rights and interests of the children”, aiming at ensuring their physical, mental and intellectual
development, the Children Act 1992 was formulated (preamble of the Act). However in the
year 2075 new law relating to children came into existence which is called Children Act
2075. It dismisses the children Act 2048 and its main objectives is to unify and amend the
laws relating to children.

The Children’s Act 2075 is a special Act promulgated with the declared objective to unify
and amend the laws relating to children and helps to safeguard the best interest of children.
Before its enactment, there is children Act 2048 and there was no separate law dealing with
children in conflict with the law. The chapter on punishment (Danda Sajaya ko Mahal) of the
National Code (Muluki Ain) only had a provision to lessen the punishment for a child under
the age of 16. But, the punishment and court proceedings were similar to those of adult
offender's70.For the first time in Nepal, the Interim Constitution of Nepal 2007 recognized the
rights of the child as fundamental rights.

There is still no separate Act regarding juvenile justice in Nepal. The new country criminal
code 2074 and the Children’s Act 2075 thus provide the national framework for the juvenile
justice system. The Juvenile Justice Procedures Rules 2007 provides detailed procedures for
66
'See supra/infra note, 4 at Sec j.
67
'Ibid' Sec 20.
68
'Ibid' Sec 22.
69
'Ibid' Sec 24.
70
'PPR Nepal, Rehabilitation Reintegration Denied? A Critical Analysis of Juvenile Justice System in Nepal,
PPR NEPAL, Kathmandu 2007, 24'.

34
the handling of the cases of the child. The Children’s Act provides for constitution of a
Central ‘Children Welfare Board’ (CCWB) (Section 32). The CCWB has the overall
responsibility to ensure realization of the rights of the children of Nepal by the state
collaborating with civil society as well as national and international development
organizations. It works towards protection of children’s rights as per the CRC standard. The
CCWB has overall responsibility to look after children’s issues.71

Our new constitution as well as the children act also provides rights of accused children
which help to safeguard the rights of them whether they are accused or convicted. Child
Right Act aims to safeguard the right of children which contain provision regarding the rights
of every child. In trial phase there is provision that no children shall be sent to jail for trial
and asked for bail amount72in case of those children who are in conflict with law and it seems
that our constitution and Act play significant role to promote and protect children rights as
well as the rights of accused children.

71
http://www.ccwb.gov.np (accessed 20 April 2019).
72
' See supra/infra note 4 at Sec 24

35
 CHAPTER V
5. NATIONAL AND INTERNATIONAL INSTRUMENTS REGARDING
RIGHTS OF ACCUSED CHILDREN
5.1 International Legal Framework

There have been several national and international efforts to ensure comprehensive Legal
protection of children before and after their birth, their care, opportunities for Personality
development, availability of family environment, happiness, love and a favorable
environment for growth and participation of children in matters of their interest and those
Children who are in conflict with law are provided with Special privileges. The United
Nations Organization, in the 1924 Geneva Declaration on Child rights, has identified that due
respect and consistent following of the human rights values is the foundation of world
freedom, justice and peace. The Declaration on Child Rights adopted by the United Nations
on November 20, 1959 and their provisions, International Convention on inter-country child
adoption and care, Guidelines for Action on Children in the Criminal Justice System and the
Beijing Rules on Juvenile Jurisprudence adopted by the United Nations, Convention on
protection of children and women during emergencies and armed conflict are some
international instruments related with child rights. The Convention on Child Rights adopted
by the United Nations in 1989 is the most important milestone for children’s welfare. There
have been several efforts at the international level to guarantee child rights. Some of them are
as follows:

5.1.1 Universal Declaration of Human Rights, 1948

On 10 December 1948 the United Nations general convention had adopted the Declaration of
Human Rights. The Declaration consists of 30 Articles. Article 25 (2) has mentioned that
mothers and their children should get special care; support and all children should get equal
social protection73. Article 26 has guaranteed free basic education for all and has provided for
making easy access to technical and vocational education.74 Article 29 (2) has provided that
each person while enjoying the rights enshrined on him or her should duly respect others’
73
Universal Declaration of Human Rights, 1948, Article 25(2).
74
'Ibid' Art 26.

36
rights and that in democratic societies each person’s duty shall be to remain within the
boundaries of law so as to attain all matters necessary for welfare of the people such as
morality, public order and public welfare.75

5.1.2 International Covenant on Civil and political rights, 1966

This charter came into effect from 23 March 1976 after this was adopted by the United
Nations general convention on 16 December 1966. Nepal ratified this charter in May 1991.
This document has 53 articles. Article 23 has ensured proper protection of children without
any discrimination.76 Similarly, Article 6 has provided that no child under the age of 18 shall
be sentenced to capital punishment for their crime.77

5.1.3 International Covenant on Economic, Social and Cultural Rights, 1966

The UN General Assembly adopted the charter on 16 December 1966 and implemented it
from 3 January, 1976. The charter has 31 articles and Nepal ratified this without any
condition in May 1991. Article 10 (2) is related with children and it has ensured protection of
motherhood for example, provision of special care and support to mothers and children,
provision of maternity leave for the mothers before and after delivering babies etc. 78 Article
10 (3) has provided for protection and support to any child and youth irrespective of paternity
or any other causes.79 Article 11 (1) has ensured rights to food, clothing and shelter 80, Article
11 (2) has ensured right to be free from hunger81, Article 12 (1) has ensured right to health82,
Article 12 (2) has expressed commitment to reduce child death rate and child health
development83. Article 13 (1) has provided for right to education in which there is provision
for free compulsory primary education for all, inclusion of technical and vocational education
in secondary level education and making tertiary education accessible for all, inclusion of
those who have not got primary education in educational activities, development of schooling
system at all levels and adequate provision of scholarships84.

75
'Ibid' Art 29(2).
76
International Covenant on Civil and Political Rights, 1966, Art 23.
77
'Ibid' Art 6.
78
International Covenant on Economic, Social and Cultural Rights, 1966, Art 10(2).
79
'Ibid', Art 10(3).
80
'Ibid' At 11(1).
81
'Ibid' Art 11(2).
82
'Ibid' Art 12(1).
83
'Ibid' Art 12(2).
84
'Ibid' Art 13(1).

37
5.1.4 Convention on Elimination of all Forms of Discrimination against Women, 1979

The UN general assembly passed this convention on 18 December 1979 and implemented it
from 3 September 1981. Nepal ratified this convention unconditionally in 22 April 1991. The
Convention has 30 articles. Article 1 of the convention has stated that there shall be no
discrimination against anyone on the basis of gender 85. Article 11 has provided for facility of
child care system86 and Article 12 has provided for services and facilities to women during
pregnancy, delivery and after delivery of child.87

5.1.5 Convention against Torture, Cruelty, Inhumane and Insulting Conduct and
Punishment, 1984

This convention was passed by the UN general assembly on 10 December, 1984 and
implemented on 26 June 1987. Nepal ratified this convention, which has 33 Articles,
unconditionally on 14 May 1991. Article 14 of this convention has provided for appropriate
and adequate compensation to the victims of torture. It has also provided for compensation to
the members of the family if any person dies due to torture.88

5.1.6 Convention on the Rights of the Child, 1989

The convention was passed by the UN general assembly on November 20, 1989 and
implemented on 2 September 1990. Nepal ratified this convention unconditionally on 14
September 1990. The convention has 54 articles. The convention contains definition of
child89, provision against any discrimination against children90, welfare of children91,
enforcement of rights92, guidance to parents and management for capacity development of
children93. The convention also has provisions about life and development 94, name and
nationality95, protection of identity96, status of the children after divorce of parents 97, family
reunion, illegal transfer and non-return of children98. The convention protects the children’s
85
Convention on Elimination of all Forms of Discrimination against Women, 1979, Art 1.
86
'Ibid' Art 11.
87
'Ibid' Art 12.
88
Convention against Torture, Cruelty, Inhumane and Insulting Conduct and Punishment, 1984, Art 14.
89
Convention on Rights of Child, 1989, Art 1.
90
'Ibid' Art 2.
91
'Ibid' Art 3.
92
'Ibid' Art 4.
93
'Ibid' Art, 5.
94
'Ibid' Art, 6.
95
'Ibid' Art, 7.
96
'Ibid' Art 8.
97
'Ibid' Art 9.
98
'Ibid' Art 10.

38
right to expression99, ideology100, wisdom and religion101, right to association102, among
others. The convention also has provisions regarding right to privacy103, right to
information104, parents’ liabilities105, protection against misconduct and neglect106, protection
of children without families107. Similarly, the convention has outlined process for adoption
and prioritized the issues related with refugee children and disabled children and related with
health and health facilities of the children 108, periodic evaluation of nutrition109, social
security110, life standard, education and the objectives of education 111. The convention also
deals with the issues related with children of minorities and indigenous people 112, leisure, rest
and cultural activities, child labor113, drug addition, sexual exploitation, trafficking114, bargain,
kidnap, other forms of exploitation, torture, loss of freedom, armed conflict, care during
rehabilitation, juvenile jurisprudence and others.

5.1.7 Guidelines for Action on Children in the Criminal Justice System 1997

The Guidelines for Action are addressed to the Secretary-General and relevant United
Nations agencies and programmes, States parties to the Convention on the Rights of the
Child, as regards its implementation, as well as Member States as regards the use and
application of the United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (The Beijing Rules), the United Nations Guidelines for the Prevention of
Juvenile Delinquency (The Riyadh Guidelines) and the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty, hereinafter together referred to as United
Nations standards and norms in juvenile justice.

The aims of the Guidelines for Action are to provide a framework to achieve the following
objectives:
99
'Ibid' Art 11.
100
'Ibid' Art 12 .
101
'Ibid' Art 14.
102
'Ibid' Art 15.
103
'Ibid' Art 16.
104
'Ibid' Art 17.
105
'Ibid' Art 18.
106
'Ibid' Art 19.
107
'Ibid' Art 20.
108
'Ibid' Art 21.
109
'Ibid' Art 25.
110
'Ibid' Art 26.
111
'Ibid' Art 28.
112
'Ibid' Art 29.
113
'Ibid' Art 32.
114
'Ibid' Art 35.

39
 (a) To implement the Convention on the Rights of the Child and to pursue the
goals set forth in the Convention with regard to children in the context of the
administration of juvenile justice, as well as to use and apply the United
Nations standards and norms in juvenile justice and other related instruments,
such as the Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power;
(b) To facilitate the provision of assistance to States parties for the effective
implementation of the Convention on the Rights of the Child and related
instruments.

5.1.8 Optional protocol to the Convention on Child Rights against use of Children in
Armed Conflict, 2000

The optional protocol passed by the UN General assembly on 25 May, 2000 was
implemented from 12 February, 2002 which has 13 articles. The protocol has provision
barring children from taking part in armed conflict 115, age of people wanting voluntarily to be
recruited in the armed group should be 18 and that no child under this age should be recruited
and arrangements shall be made to prevent such recruitment 116. The optional protocol has
stressed on the need to free any person recruited against the provisions in the optional
protocol and should extend all types of support to rehabilitate them and bring their mental
and physical conditions in their previous state and also reintegrate them into the society. The
protocol has also stressed on the need for implementation of the document, making children
and youths aware of the provisions in the document, giving them responsibilities, and
extending technical and financial support to the parties of the protocol through consultation
of concerned international organizations through bilateral or multilateral or other efforts
through establishment of a voluntary fund.

5.1.9 Optional protocol on Convention of Child Rights against Child Trafficking and
Engagement of Children in Prostitution, 2000

The protocol adopted by the UN general assembly through proposal no 54/263 on 12

February 2000 and has 17 articles. The protocol has forbidden trafficking and engagement of
children in prostitution and has given definition of trafficking and provided for laws to

115
'Optional Protocol to the Convention on Child Rights against use of Children in Armed Conflict, 2000,
Art 1.'
116
'Ibid' Art 2.

40
criminalize the activities and include provisions of punishments to anyone violating this 117,
framing of legal and administrative provisions, social policies and programs to stop such acts
or strengthening them, spread awareness about the provisions, special care to victim children,
garnering international support for this and taking other required steps.

5.1.10 SAARC Convention on Regional arrangements for the Promotion of Child

Welfare in South Asia, 2002

Adopted on 5 January, 2002 this convention has 4 parts and 13 articles in which it has
defined child rights, its purposes and objectives, directive principles for example this
document has stressed on the provisions rights of child protection, child development and
child participation as preconditions, provided for regional priorities and provisions, regional
arrangements, bilateral and multilateral assistances and provisions118.

5.1.11 SAARC Convention on Preventing and Combating Trafficking in Women and

Children for Prostitution, 2002

This convention has provided definition of child, prostitution, trafficking, and people
involved in trafficking, trafficked people, definition of protection homes and rescue of
trafficked people119. The Convention aims at prevention and combating of prostitution, return
and rehabilitation of women and children engaged in prostitution by creating international
network. The convention provides for punishment for people perpetuating such acts,
maintaining secrecy of the victim women and children by judicial officials, provision for
appropriate legal assistance and consultation, provision for mutual legal support, extradition
and prosecution, finding ways to prevent and combat trafficking on women and children, care
of victims and their treatment, return and rehabilitation of victims and implementation of the
convention.

5.1.12 Convention on International Labor Organization, No 138 on Minimum Age for

Labor and No 182 on Elimination of Child Labor

117
Optional Protocol on Convention of Child Rights against Child Trafficking and Engagement of Children in
Prostitution, 2000, Art 2.
118
SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia,
2002.
119
SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution,
2002.

41
Article 2 of the convention adopted on 19 June 1971 has defined child. The article has also
discussed about the child labor, slavery, or treating children like in slavery situation,
trafficking of children, bonded labor, compulsory conscription or use of children in armed
conflicts, compulsory labor, prostitution 120 and others. It has also dealt with use of children in
producing pornographic literature and exhibitions and employing them for drug trafficking.

5.1.13 UN Committee on Child Rights

This committee has been established as per Article 43 of the Convention on Child Rights
1989. There are 18 experts in the committee for the tenure of four years. The first meeting of
the committee was held in 1991. The committee supervises the progress made by the parties
in terms of their liabilities of the convention through a reporting mechanism. In Article 44 of
the convention the parties have agreed to report within two years of signing the convention
about the efforts taken to implement the rights enshrined in the convention and progresses
made in this regard and to submit such a report to the committee through the secretary
general within five years.121 In this context, Nepal has submitted the preliminary report in
1996 and second periodic report in 2005. The Child Rights Committee held discussion on
Nepal’s second periodic report (CRC/C/6/Protocol30) on 20 May 2005 in its 1032nd and
1033rd meetings and in its 1052nd meeting on 3 June 2005 and has made several
recommendations.

5.2 National Legal Provisions:

Nepal ratify the UN Convention on Rights of the Child, 1989 (CRC) ON 14 September 1990
and subsequently enacted the Children’s Act, 2048. The Act has provisioned the
establishment of special Juvenile Court, Juvenile Bench, Child Reform Home and special
service for Juveniles /Children in conflict with laws. In 2063, the Government of Nepal
enacted the Juvenile Justice (Procedure) Rules to ensure the protection of children in conflict
with law, to simplify the procedures and to strengthen the administration of juvenile justice.
After the historical struggle and people’s movement for democracy, peace and progress, the
Interim Constitution of Nepal was promulgated in the year 2063 that replace the Constitution
of Kingdom of Nepal, 2047. The Interim Constitution of Nepal, 2063 for the first time,
recognized rights of children as fundamental rights.

120
Convention on International Labor Organization, No 138 on Minimum Age for Labor and No 182 on
Elimination of Child Labor.
121
UN Committee on Child Rights, Art 44.

42
There have been several constitutional and legal provisions to protect and promote child
rights in Nepal. Some of the provisions include:

5.2.1 The Constitution of Nepal (2072)

Although six constitutions have already been implemented in Nepal, they could not
specifically address the issue of child rights especially the rights of accused children. Nepal’s
1990 constitution Article 20 (2) had prohibited employment of children in industries,
factories, mines and other dangerous jobs122. The Interim Constitution of Nepal has provided
for Fundamental Rights in part four. Article 13 has provided for right to equality and
provision for special arrangements through laws for development of disabled children. Article
17 has provided for rights to education and culture123. Article 22 has provided that every child
has the right to name and identity, upbringing, basic health facilities and social security,
rights against physical, mental and all other forms of exploitation and has made it punishable
by law and perpetuators of such acts should compensate the victims for their crime as per
provisions in laws. The constitution has also provided for special support from the state to
orphans, helpless, mentally retarded, conflict victims, displaced and the street children who
are at risk. It has also prohibited employing of children in industries or mines or any other
risky jobs and in army, police or in conflicts124.

Constitution of Nepal (2072) Article 39 provides Rights of the child:

(1) Every child shall have the right to his or her identity and name.

(2) Every child shall have the right to education, health, nurture, appropriate care, sports,
entertainment and personality development.

(3) Every child shall have the right to preliminary child development and child
participation.

(4) No child shall be employed to work in any factory, mine or engaged in any similar
other hazardous work.

(5) Child marriage, illegal transportation, abduction or kidnapping of any child shall not
be allowed.

122
Constitution of Nepal, 1990, Art.20 (2).
123
The Interim Constitution of Nepal, 2007, Art 17.
124
'Ibid' Art 22.

43
(6) No child shall be admitted or used in army, police or armed groups or mistreated or
neglected in any way in the name of cultural or religious tradition or exploited
physically, mentally, sexually or used in any inappropriate way.

(7) No child can be tortured physically, mentally or in any other way in home, school, or
any other places and conditions.

(8) Every child shall have right to child-favored justice.

(9) The helpless, orphan, disabled, conflict victim, displaced, and vulnerable children
shall have the right to get special protection and facilities from the State.

(11) Any act contrary to sub-articles (4), (5), (6) and (7) shall be punishable by law and the
victim shall be entitled to compensation from the perpetrator as determined by law.

5.2.2 National Criminal Code, 2074

This new criminal codes who came into from the Bhadra 1, 2075 recognized children as those
who have not completed the age of 18. Regarding the legal provisions of accused children, in
sec 13 there is provision of if a Child below the age of 10 years commits an act which is an
offence under a law, he shall not be liable to any type of punishment. 125 In sec 39 there is
provision regarding the reducing the seriousness of crime if the crime is done by the children
who have not completed the age of 18. Likewise in Sec 45 of the criminal code there is a
provision regarding the punishment for the children and they are:

1) If a Child below the age of 10 years commits an act which is an offence under a law,
he shall not be liable for any type of Punishment.

(2) If the age of the Child committing an offence which is punishable with fine under law,
is 10 years or above and below 14 years, he shall be admonished and convinced and if
the offence committed is punishable with imprisonment, he shall be punished with
imprisonment for a term which may extend to six months or without giving
punishment of imprisonment child may sent to Children Rehabilitation Home not
more than one year.

125
National Criminal Code, 2075, Sec 13.

44
(3) If a Child committing an offence is 14 years or above and below 16 years, he shall be
punished with half of the penalty to be imposed under law on a person who has
attained the ae of majority.

(4) If a Child committing an offence is 16 years or above and below 18 years, he shall be

punished with 2/3rd penalty to be imposed under law on a person who has attained the
age of majority.

5.2.3 Muluki Ain, (National Code), 2020

The Muluki Ain has also provided few provisions concerning to juvenile justice, although in
a very scattered form. The case of child is given priority for hearing under No. 11(2) 126 of the
Chapter on ‘Court Management’. No. 24 of the same chapter has provisioned that in
obtaining a document from or causing a document to be executed by a minor, who has not
attained the age of sixteen years, the appearance of his or her guardian or heir is mandatory 127.
No. 40 has arranged extension of limitation to file suit for minor from the date of attaining the
age of sixteen. No. 83 permits to the guardians to file suit obtaining permission on behalf of
minor. No. 118(4) and (10) prescribe the court to take into account the age of accused person
in deciding on the bail application. Likewise no 26 of the Chapter on ‘Punishment’ prohibits
confiscation of the property of a minor, consideration to failure to pay a fine, the term of
imprisonment should not exceed half the imprisonment that would have been imposed on
adults. No. 2 of the Chapter on ‘Theft’ has defined that the taking of property of another with
the consent of a minor as theft. Likewise, No. 16 provides that an adult and prudent person
who sells a property stolen by a minor is liable to a fine equivalent to the stolen amount. The
double punishment is prescribed for the detainer in case of child detention under the No. 4 of
the Chapter on ‘Illegal Detention’. Chapter on ‘Abduction and Hostage Taking’ has
criminalized taking a minor from one place to another without the consent of his/her father or
mother or guardians. No. 9 impose additional two years imprisonment in case of child victim.
No. 18 of the Chapter on ‘Homicide’ has made punishable abandonment of child. No. 2 of
the Chapter on ‘Medical Treatment’ has made mandatory to take consent of guardians before
conducting an operation on a child.

5.2.4. Children Act, 2075

126
Muluki Ain, (National Code) 2020, Court Management, No. 11(2).
127
'Ibid' Sec 24.

45
This Act came into existence for the protection of the rights of children. The main objectives
of this Act are to unified and amend the laws relating to children. This Act also recognized
children as those who have not completed the age of 18. 128 Many rights of the children are
prescribed in this Act. Some of the rights of accused children as per this Act are:

- Right to privacy129

Juvenile Court, police office, Guardian, Relatives or other institution who are working for
the children shall keep the records of children who are apprehended on the charge of any
offence or Victims of Crime in confidential manner having stated his name, address, age, sex,
family background, economic conditions, offence committed by him and these particulars
shall use only for legal purposes.
-Responsibility towards children
Every institutions or organization who are working for the children shall perform the work
for the best interest of the child.130
- Relating to Child Justice131
For the execution of justice to child those who are involve in executing the justice shall keep
in mind of following things,
 Before taking decision against children, first know their opinion toward it.
 Before taking decision against welfare and interest of child, shall provide chance to
children's parents to give their statement or opinion.
 Must keep child friendly Environment.
 Use child Friendly language and if they need translation shall have to provide
Translator.

- Investigation officer shall have to inform guardian of children who are arrested
in offences.132

- While taking control of accused child investigation authority shall not use forces.

- Observation room shall be established to investigate accused child.133

128
Children Act, Supra Note 4, Sec (j).
129
'Ibid' Sec 11 (3).
130
'Ibid' Sec 16 .
131
'Ibid' Sec 20.
132
'Ibid' Sec 21 (3).
133
'Ibid' Sec 22.

46
In case of not available of observation room every police office shall have to make different
room.

- Provision regarding Trial134

 No accused child shall be sent for jail nor shall be asked for fine or bail amount
during the Trial.

- Rights of children in process of Hearing135

 Accused children shall have right to get information relating to the case which is filed
against them.136
 Accused children shall be provided free legal aid and other related help for their
defense.137
 Hearing shall be in child friendly environment138

- Time duration for the decision of the case139

Case shall be decided not more than 120 days.

- Prohibition on imposing rigorous punishment140

Notwithstanding anything contained in the existing laws, no Child shall be subjected to

handcuffs and fetters, solitary confinement or be committed to live together in prison with
prisoners having attained the age of majority in case a Child is convicted for any offence.

5.2.5 Children Act, 2048

The Children Act 1992, framed as per the Child Rights Convention is considered to be an
important document related with protection and promotion of child rights. The Act has
defined any child under the age of 16 is consider child141. The Act has prevented employment
of any child under the age of 14 and has provided for special protection measures while
employing any child above that age. The Act has also made provisions for upbringing of

134
'Ibid' Sec 24.
135
'Ibid' Sec 26.
136
'Ibid' Sec 24(a).
137
'Ibid' Sec 24(b).
138
'Ibid' Sec 24(h).
139
'Ibid' Sec 37.
140
'Ibid' Sec 42.
141
Children Act, Supra Note 9, Sec 2.

47
children, facilities for health care, provisions for discrimination against son and daughter,
provision against torture and employment in hazardous jobs, forcing to beg and offering to
the gods. The Act has also included provisions like preventing punishment to children unless
for acts categorized as crimes in criminal laws, discount of crimes committed during
childhood for making the person unfit in the future, not including crimes committed while
being child as number of crime committed by that person when counting such for the purpose
of sentencing, provision for punishment for making any child commit a crime but not for the
child for carrying out the orders and other positive provisions. The Regulations related with
the Child Act came into effect from 1995 January 17 has provided for Central Child Welfare
Committee and District Child Welfare Committees and has provisions on child welfare and
child correction homes. The Central Child Welfare Committee is empowered to provide
directives to the District Child Welfare Committees to collect data from child homes, child
correction homes, those in district prisons, unclaimed, labors, mentally retarded and
physically disabled children in the districts and keep records accordingly. The District Child
Welfare Committee is empowered to draft policies, update records, encourage and support
social activists and non-government organizations to work for the welfare of the children,
among others. The Central Child Welfare Committee and the District Child Welfare
Committees have played important roles as mechanisms to protect of the welfare of the
children, their development and update the data related with children.

5.2.6 Child Labor (Prevention and Control) Act, 1999

The Act has forbidden anyone from employing a child of below 14 years of age and has
provided for a punishment of up to three months in jail or Rs 10,000 fine or both for
employing a child of below 14 years of age. If someone is found to be employing a child of
below 16 years of age in risky job then such a person may be sentenced one year in jail or
fined Rs 50,000 or both142. If anyone is employed without the consent of the guardian then
such person may be sentenced two years in jail or fined Rs 5,000 or both the Anyone can be
employed. Concerned police office, child’s guardian or parents, concerned village
development committee or municipality office, labor organization or any non-government
organization can file complaint against anyone employing child within one year of such
employment in competent Labor Office. Anyone dissatisfied with the verdict of such a Labor
Office can file a case in the Labor Court within 35 days of such verdict but if any punishment
has been sentenced then such a case should be filed at the Appellate Court.
142
Child Labor (Prevention and control) Act, 1999.

48
5.2.7 Prison Act, 1962 and Rules, 1963

Article 8 (1) of the Prison Act has provided that any woman prisoner giving birth to a baby
while imprisoned and wanting to care her child under the age of two can do so in the prison
itself and after the baby reaches two years of age, the child will have to be taken away by his
or her custodian for further care 143. Article 8 (2) has provided that the government has to take
the responsibility for care of babies, their education and upbringing if women prisoners have
no one to take care of the babies outside the prison144.

According to Prison Regulation 1963, tenth amendment, has increased the duration until
which a child can be kept in correction homes. Under the law of the land a child can be kept
in the correction homes until the age of 16 but if the correction homes recommend some more
time in the homes so that his character can be corrected, them the jailor and prolong the stay
of such child in the correction home145.

5.2.8 Disability Act, 2074

This act has given definition of disability, its determination, protection, right to equality,
education and training facilities, health and medical care, facilities and concessions,
feeding146 etc.

5.2.9 Comprehensive Peace Agreement, 2007

In Point No 6.7 of the Comprehensive Peace Agreement the parties of the agreement have
agreed not to recruit or use any child under the age of 18 as soldier and also provides for
immediate rescue of any such child soldier and rehabilitating the such a child and providing
all necessary support for such. In Point No 5.1.4, the parties of the agreement have agreed to
mark all landmines, inform about all storages and inform each other about such and de-mine
them or eliminate them within 60 days and help each other in doing this. However, these
points have not been implemented147.

5.2.10 Court Verdicts in relation to Children

143
Prison Act, 1962, Sec 8(1).
144
'Ibid' Sec 8(2).
145
Prison Regulation, 1963.
146
Disability Act, 2074.
147
Comprehensive Peace Agreement, 2007.

49
Children should not be physically abused (Devendra Ale and others Vs Prime Minister and
Office of the Council of Ministers):

The Supreme Court declared null according to Article 88 of the Constitution of the Kingdom
on Nepal 1990, the Proviso of the Article 7 of Child Act 1991, which stated that scolding or
simple beating by the teachers, guardians or parents to their children shall not be considered
violation of this Act. Devendra Ale had filed the writ petition seeking nullification of the
Proviso Article. Children should not be handcuffed (Advocate Bal Krishna Neupane Vs
Nepal Government Home Ministry):

The Supreme Court, acting on a writ petition filed by advocate Bal Krishna Neupane, issued
a mandamus order prohibiting all 75 district police offices, 71 district prisons in 75 districts,
the Home Ministry and the Police Headquarters not to handcuff children, confine them in
solitary and keep them along with adult prisoners, as provided by the Child Act
1991.Children should be kept in child correction center during judicial custody or
imprisonment (Ashish Adhikari on behalf of Babloo Godiya V His Majesty’s Government of
Nepal Ministry of Home Affairs): The Supreme Court issued a verdict in favor of Godiya by
issuing an order that as per Child Act 1991 Article 42 (2) all children serving sentence should
be kept in child correction homes during imprisonment. Related with registration of child
clubs (Tillottam Poudel of Jagriti Child Club Vs Nepal Government Ministry of Home
Affairs):

As per Article 15 (1) of the Child Rights Convention, to which Nepal is a signatory party,
children have their right to organization and peaceful gathering and the Supreme Court
ordered the Home Ministry to register the Jagriti Children Club as per existing laws.

5.2.11 National mechanisms established in Nepal in relation to implementation of Child

Rights:

There are several national mechanisms established to implement the child rights. Some of
them are as discussed below:

Ministry of Women, Children and Social Welfare: The Ministry of Women and Social
Welfare, which was established in 1995, was expanded in 2000 after its scope was enlarged
with inclusion of child rights and it was renamed as Women, Children and Social Welfare.
The ministry submits periodic reports according to the Convention on Child Rights and
Convention on Elimination of all forms of violence against women. It has also played an

50
important role in amendment of the Civil Code, prepared drafts of bills on domestic violence
and human trafficking. It has also prepared National Action Plan for Combating Human
Trafficking and prepared Gender Equality and Women Empowerment National Action Plan,
2005. It has also prepared National Action Plan and three-year action plans.

National Human Rights Commission:

The National Human Rights Commission was established as per the provisions of Human
Rights Act 2000 as an autonomous, national organization and an important national
mechanism to protect and promote human rights. The Interim Constitution of Nepal has given
NHRC the status of a constitutional body. The Interim Constitution of Nepal 2007 and
Article 9 of the Human Rights Commission Act 2000 has defined the function of the National
Human Rights Commission as taking complaints related with violation of human rights,
conducting investigations, studying the protective provisions of the constitution and the
existing laws and recommending the government accordingly, suggesting the government
about making necessary changes in the existing legal frameworks to make them consistent
with the international human rights instruments to which Nepal is party, conducting studies
on the overall situation of human rights, promoting human rights by organizing workshops,
seminars and other means etc. fall under the scope of the NHRC 148. The commission has been
conducting investigations into the incidents of child rights violation and suggesting to the
government about compensation and action against the perpetuators of such crimes but the
level of implementation is dismal. The NHRC has established Child Rights Desk in 2005 to
deal about child rights.

Central and District Child Welfare Committees:

Child Act has provided for Central Child Welfare Committee and District Child Welfare
Committees. The Central Child Welfare Committee is empowered to provide directives to the
District Child Welfare Committees to collect data from child homes, child correction homes,
those in district prisons, unclaimed, labors, mentally retarded and physically disabled children
in the districts and keep records accordingly. The District Child Welfare Committee is
empowered to draft policies, update records, encourage and support social activists and non-
government organizations to work for the welfare of the children, among others. The Central
Child Welfare Committee and the District Child Welfare Committees have played important

148
Human Rights Commission Act, 2000, Sec 9.

51
roles as mechanisms to protect of the welfare of the children, their development and update
the data related with children.

Establishment of Juvenile Bench in District Courts:

Courts have an important role to play in protection and promotion of human rights. The
cases related to child rights can also be linked with courts. There have been several important
orders in relation to cases filed in the Supreme Court and other courts. Among the important
orders by the Supreme Court is the order to let establish child clubs, prohibition to beat and
give physical punishment to children, order to keep children in child correction homes during
judicial custody and while serving sentences, order against keeping children and adults in
same prison and order against keeping children handcuffed. All district courts have provision
of juvenile bench unless juvenile courts as provided in the Child Act are established.
Inclusion of district judges, social workers, child specialists and child psychologists in
juvenile bench have shown signs of reforms in juvenile justice administration. Juvenile
benches have been established in several district courts.

Mechanisms established by the Government:

Other mechanisms established by the government include National Women Commission,

National Dalit Commission, Indigenous and Nationalities Uplift National Academy, Poverty
Alleviation Fund, Disabled Protection National Committee and others. These agencies work
for protection of rights of women, Dalits, indigenous and nationalities, their welfare and
development. Protection of rights of these communities supports a lot in protection of the
rights of their children. Similarly, human rights branches established in several ministries,
human rights cells established in security organs, separate cell for women and children in the
Nepal Police, establishment of women and children section in the National Planning
Commission and establishment of child labor section in the Labor Ministry and establishment
of National Women and Child Council in 1994 are important steps taken for the welfare of
children. Apart from these, the SAARC summit has passed an agreement for establishment of
regional mechanism to fight against women and child trafficking. The SAARC has declared
2001 to 2010 as SAARC Child Rights Decade. SAARC convention on preventing and
combating trafficking in women and children for prostitution 2002 and SAARC convention
on regional arrangements for the promotion of child welfare in South Asia 2002 have been
adopted.

52
53
 CHAPTER VI
6. ANALYSIS OF RIGHTS OF CRIMINALLY ACCUSED CHILDREN
IN NEPAL

6.1 Legal Status of the Rights of Criminally Accused Children in Nepal

Convention on Child Rights 1989 Article 1 has defined child as anyone under the age of 18
unless otherwise stated in already existing legal provisions and the Optional protocol of the
Convention of Child Rights and other documents has defined anyone of age of 18 as child.
International Labor Organization Convention on Child Labor No 182 Article 2 had defined
anyone under the age of 18 is child while Child Act, 2048 (1992) Article 2 (A) has defined
anyone not completing the age of 16 as child. However new criminal and civil code 2074
state Children as those who have not completed the age of 18. Similarly, Child Labor
(Prohibition and Regulation) Act, 2056 (1999) Article 2 (a) has defined anyone under the age
of 16 as child. Although there is no consistency in the age limit for child, there is increasing
practice to adopt international definition in this regard. Child rights are the special rights of
the children. Rights of accused children comprise all rights which will be enjoyed by the
children who are accused of any criminal activity. Guidelines for Action on Children in the
Criminal Justice System main objectives is to implement the Convention on the Rights of the
Child and to pursue the goals set forth in the Convention with regard to children in the
context of the administration of juvenile justice, as well as to use and apply the United
Nations standards and norms in juvenile justice and other related instruments, such as the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Child
Rights Convention has mentioned that it shall be the duty of the parents and the states to
fulfill the child rights but as per several provisions in the Child Rights Convention and other
documents protection of human rights, its fulfillment and implementation is the liability of
the state and therefore, state is responsible for child rights as well.

The Universal Declaration of Human Rights 1948 is taken as directive principle for human
rights and this paved path for identification of rights of different classes, groups, levels and
sections of people. This declaration has established itself as foundation for child rights as
well. The 10-point Declaration of the UN in 1959 defined child rights and played a greater
role in child rights protection. Convention on Child Rights is taken s reference for protection,
promotion, implementation and fulfillment of child rights. This convention was adopted by

54
the UN General Assembly on 20 November 1989 and implemented on 2 September 1990.
Nepal ratified the 54- Article document on 24 September 1990 without any condition. This
convention was prepared with special aim to improve the situation of child rights in
developing states. The four main child rights which is also the rights of criminally accused
children enshrined by the Child Rights Convention 1989 are:

• Right to Life

• Right to Protection

• Right to Development

• Right to Participation

6.1.1 Right to Life:

Right to survival includes nutritious food, protected shelter, healthy environment, clean
drinking water, immunization and primary health care and other provisions.

Name, Birth Registration and Right to Nationality: Article 7 of the Convention on Child
Rights has guaranteed children’s right to name, birth registration and nationality 149 and this
has also been guaranteed by the Child Act, 2048 (1992) and the Birth, Death and other Vital
Incidents (Registration) Act 1977. After the Supreme Court verdict in December 2007 to let
children acquire citizenship on the basis of the citizenship of their mothers, the provision
related with child registration has not been effectively implemented.

Child abduction and disappearance: The Civil Code (12th Amendment) 2063, related with
abduction, has been approved. The amended provision has provided for a punishment of
seven to fifteen years of imprisonment and from Rs 50,000 to Rs 200,000 fine for abduction,
illegal detention and making captive person with an intention of murder, trafficking, rape,
prostitution, torture and extortion. Anyone abducting, causing to abduct and ordering or
giving consent for such abduction of a minor can be punished with a 17 year imprisonment.
Accomplice of abduction is liable to half the punishment of the abductor. The amendment has
also provided for punishment to anyone forcefully seeking money or those threatening of
abduction for not giving money. A Children Searching Coordinating Committee has been
established with the joint efforts of the Nepal Government Ministry of Women, Children and

149
Convention on Child Rights, 1989, Art 7.

55
Social Welfare and Central Children Welfare Committee with the support from Nepal Police,
Social Welfare Council and national and international nongovernmental organizations.

6.1.2 Right to Protection:

All children have the right to protection from discrimination, child labor, exploitation,
mistreatment, exposure to dangerous jobs, trafficking and separation from parents. Special
provisions have to be made for disabled and orphan children, legal protection of all children
and other rights are also guaranteed.

Child Labor: Child Act, 2048 (1992) Labor Act, 2048 (1992) and Child Labor (prohibition
and control) Act, 2056 (1999) have prohibited employing children under the age of 14 as
child labors. Child Act 1991, Labor Act 1991 and Child Labor (prohibition and control) Act
1999 have prohibited employing children under the age of 14 as child labors. It is the
responsibility of the state to effectively implement the provision but it has been reported that
officials of the Nepal Government have been employing children as workers. The National
Human Rights Commission therefore, recommends the government to direct the government
officials, including Nepal Army, police, civil servants and other authorities and officials of
the corporations owned by the government and those officials withdrawing salary from the
state not to do anything that infringes the child rights and direct authorities concerned to
respect and protect child rights and take departmental actions against those infringing such
rights and also make arrangements for publicizing such policy to the people.

Juvenile crime and Juvenile Justice: The Ministry of Women, Children and Social Welfare
has put in place Juvenile Justice (Procedure) regulation 2063 as per the Child Act, 2048
(1992) to establish Juvenile Bench and its effective implementation. There is provision for
juvenile bench in all 75 districts and such benches should consist of district court judge, child
specialist and child psychologist. There is only one child correction center at Thimi of
Bhaktapur and other children are kept together with adults at district police offices.

6.1.3 Right to Development:

This right emphasizes on children’s access to education in clean environment, entertainment,

sports and rest, love, respect and care from the parents, physical, mental, moral and social
development of the children as the basis for development and basis for livelihood of the
children. The research has attempted to analyze the situation of child rights on the following
subjects.

56
• Right to education:

Use of children by political parties: A monitoring conducted by the National Human Rights
Commission during the election of the Constituent Assembly found that the political parties
used children under the age of 18 for mass meetings, cultural program.

Right to Health:

6.1.4 Right to Participation:

Right to participation of children include children’s participation in drafting of policies which

affect livelihoods of children and respecting such ideas. Rights to participation includes being
able to participate in creative activities, social and cultural activities and in every aspects of
life without any obstruction and discrimination, participating in religious activities as per
beliefs, being informed about different things and right to expression of ideas, organization
and participation among others.

Child education, health, rights protection and campaign against AIDS in children are the
problems raised by the global convention. Countries across the world are centered in these
issues and Nepal has also adopted these four issues as the focus but the conflict has
overshadowed these issues.

6.2 Main Problems related to Rights of accused Children in Nepal

6.2.1 Legislation

Inadequate measures adopted to ensure that national legislation fully conforms to the
principles and provisions of the Convention. Lack of conformity of legislative provisions
concerning non-discrimination including in relation to marriage, inheritance and parental
property, torture and corporal punishment, It is also concerned about the gap between
existing legislation and its practical implementation.

6.2.2 Non-Discrimination Principle

This is particularly concerned at the insufficient measures adopted to ensure the effective
implementation of the principle of non-discrimination. It notes the persistent discriminatory
attitudes towards the children who are in conflict with laws. There are some privileges which
is provided only for the children especially to those children who are in conflict with law like
the provision regarding Camera Hearing, Closed Hearing, and submission of report from the

57
child right activist however all these in laws only they are not properly implemented and
accuse children have to face discrimination.

6.2.3 No Data Collection

This research is concerned at the insufficient attention paid to systematic and comprehensive
data collection, identification of appropriate indicators, as well as to a monitoring mechanism
for all areas covered by the Convention and in relation to all groups of children, including
children belonging to minorities, to lower castes, children of very poor families, children in
rural areas, disabled children, children placed in institutions, children victims of sale,
trafficking and prostitution and children living and/or working on the streets150.

6.2.4 Birth Registration

Insufficient steps undertaken to ensure birth registration of children, particularly those living
in remote areas, and to the adverse effects arising there from for the enjoyment of their
fundamental rights and those children who are accuse in crime get punishment as like adult
due to the lack of document which shows their real age.

6.2.5 Early Marriage and Traditional Harmful Practices

While acknowledging that the minimum age of marriage for girls is 18 years, the concern of
the State party that the custom of early marriage is widespread in practice, in particular within
certain ethnic and religious communities, and that girls, once married, are not afforded the
protection for the enjoyment of their rights as children as enshrined in the Convention,
including the right to education.

6.2.6 Disabled Children

While acknowledging the development of a national policy on persons with disabilities and
the existence of laws that provide for the rights of children with disabilities, including the
Disability Act151, Education Act152 and the 2048 (1992) Children’s Act, and the establishment
of a National Disability Service Coordination Committee in 2057 (2000) to develop and
support programs for persons with disabilities, the Committee remains concerned that:

150
CRC/C/15/Add.26121) September 2018.
151
Disability Act, 2074.
152
Education Act, 2028 (1971).

58
(a) Implementation of these legislation and programs have been ineffective and that the
necessary resources have not been allocated by the State party;

(b) There is no national system for early detection and intervention with regard to children
with disabilities;

(c) Insufficient efforts have been made to facilitate the inclusion of children with disabilities
into the educational system and society in general, including efforts to change traditional
attitudes towards persons with disabilities and improve the access to information, medical
facilities, etc.

6.2.7 Schooling

While welcoming the development of the National Plan of Action on Education for All, and
the Basic and Primary Education Master Plan (1997-2002) and the Basic and Primary
Education Master Plan II (1999-2004), it is seriously concerned that primary education has
not been made compulsory and that the target set by the State party to achieve universal
primary education by 2000 was never met and has been extended to 2015. Low public
expenditure in education, lack of resources, poor physical infrastructure, overcrowding in
schools and material shortages are responsible for the shortage of qualified teachers in school.
This is also concerned about the high dropout rate, and that significant inequality exists in
access to education, in part due to the hidden costs associated with schooling, and that a large
proportion of girls and children from disadvantaged backgrounds such as Dalit children and
children with disabilities remain deprived of educational opportunities. Due to which many
children involve in criminal activities as they are unable to differentiate between right and
wrong and the research shows that most of the children who are accused of crime have not
get proper education.

6.2.8 Mistreatments, Domestic Violence

This is concerned that corporal punishment and ill-treatment of children is prevalent in the
family, in schools and in other institutions. Main concerned about the provisions in the 1992
Children’s Act and the 1963 Muluki Ain which provide for corporal punishment in the home,
in schools and in other institutions and forms of childcare, which is in clear contravention of
article 19 of the Convention. This underlines the importance of specific legal prohibition of
traditional practices which are harmful to children by law.

59
6.2.9 Children in Street Situations

In view of the increasing number of children living and working on the street and the State
party’s recognition that they are among the major victims of abuse, neglect and exploitation
and more involve in criminal activities.

6.2.10 Child Labor

This is also notes with satisfaction the various efforts taken by the State party to eliminate the
worst forms of child labor, in cooperation with the civil society actors, the donor community,
and most notably, the International Labor Organization, including ratification of relevant ILO
Conventions and national laws.

Nevertheless, this remains gravely concerned about the significant proportion of children in
the State party who engage in labor, which is often full-time, and extremely hazardous. This
is also concerned that the enforcement of domestic legislation in this area remains weak. This
is concerned about the shortage of labor inspectors due to the State party’s lack of financial
resources.

6.2.11 Sale, Prostitution and Trafficking

The various efforts undertaken by the State party to combat child trafficking and welcomes
the information that police officers are being trained in issues relating to sexual exploitation
and trafficking of women and children. However, it is deeply concerned about the perversity
of the phenomenon of trafficking and sale of children within Nepal and across the border for
the purposes of sexual exploitation and bonded labor. This notes with grave concern that
certain groups of children are at a particularly higher risk of being sold and trafficked,
including girls, internally displaced children, street children, orphans, children from rural
areas, refugee children and children belonging to more vulnerable castes. The further
expresses concern that the existing legal protection for victims of trafficking, most notably
the Human Trafficking Control Act, is inadequate, and that its implementation is seriously
inadequate. This is also concerned that the child victims of sexual exploitation do not receive
adequate protection and recovery assistance.

6.2.12 Juvenile Justice

While welcoming the establishment of Juvenile Benches in all the district courts to deal with
cases relating to children in conflict with the law, and that training programs have been

60
 organized for law enforcement officials, including the Police Academy, the legislation and
policies of the State party are not in conformity with international juvenile justice standards.
The main concern that the minimum age of criminal responsibility is set as young as 10, and
that there is no official system of age verification in place. Also concerned about conditions
of detention, and that persons under 18 are in most cases not separated from adults while in
detention due to lack of juvenile detention facilities. This is also alarmed that children are
often brought to trial without any proper investigation‖ and that a large proportion of juvenile
cases are dealt by District Administration Offices which are quasi-judicial. Further, there is
lack of educational facilities available in prison.

6.3 Gap between the laws relating to accused children and Real Practices

There are vast differences between the laws relating to accused children and in real practices.
In recent days more laws are coming for the welfare of the child however they are not
implemented in practices. In practices those children who are in conflict with law does not
get full rights which is provided to them by Laws. The CRC requires state parties to develop
and implement a comprehensive juvenile justice policy. The Committee on the Rights of the
Child has stated that “the comprehensive approach should not be limited to the
implementation of specific provisions contained in Article 37 and 40 of the CRC, but should
also take into account the general principles enshrined in article 2, 3, 6 and 12 and all other
relevant articles of the CRC”.153 Rule 1(4) of the Beijing Rules states that “juvenile justice
shall be conceived as an integral part of the national development process of each country
within a comprehensive frame work of social justice for all juveniles.’ Juvenile justice
systems should also be developed systematically and in a coordinated way so as “to improve
and sustain the competence of personnel involved in the system, including their methods,
approaches and attitudes” (The Beijing Rules, Rule 1(6)). Following are the important aspects
of establishing and proper functioning of comprehensive and separate juvenile justice
systems, seen from a CRBA and directed at serving the best interest of child.

As a state party to the CRC Nepal has the obligation to formulate laws and policies for the
implementation of the CRC. For the purpose of making legal arrangements to “protect the
rights and interests of the children”, aiming at ensuring their physical, mental and intellectual
development, the Children Act 2075 was formulated (preamble of the Act). The Children’s

153
CRC, General Comment No. 10: Children’s Rights in Juvenile Justice 3, 2007 (Publication no. CRC/C/
GC/10). Retrieved 20 March 2018, http://www2.ohchr .org/English/bodies/crc/docs/AdvanceVersions /
GeneralComment10-02feb07.pdf (accessed 20 September 2018)

61
Act 2075 which dismiss Children Act 2048 is a special Act promulgated with the declared
objective of the well-being of children. Before the Children Act 2048 enactment, there was
no separate law dealing with children in conflict with the law. The chapter on punishment
(Danda Sajaya ko Mahal) of the National Code (Muluki Ain) only had a provision to lessen
the punishment for a child under the age of 16. But, the punishment and court proceedings
were similar to those of adult offenders.154

The Children’s Act provides some important safeguards for children who have been
subjected to arrest. Section 7 prohibits torture or cruel treatment of the child and the Police
may not use handcuffs and fetters while arresting a child. A child should not be kept together
with adults in prison or in solitary confinement (Section 15). Rule 4 of the Juvenile Justice
Procedure Rules, 2007 provides the following as regards arrest and detention of a child:

 While investigating children’s case the Police should wear plain clothes, not a
uniform,
 Before arresting a child the police should show their identity card and mention the
cause of arrest,
 At the time of arrest the child should be informed about his/her constitutional and
legal rights,
 If possible, both the parents of the child and if not possible at least one of them or
his/her guardian, should be informed about the alleged offence of the child,
 The physical and mental health of the child should be checked immediately in a
nearby government hospital or by a doctor, and
 While conducting a Sarjamin, if possible both the parents, or if not possible one of
them or his/her guardian, should be present.

Section 22 of the Children’s Act 2075 provides that a child who is detained during
investigations prior to trial and during case proceedings must be kept in the observation
room. Section 24 of the Act provides discretionary power to the court to allow for the
accused child to be placed in the custody of parents, relatives, guardian or any social
organization engaged in the protection of the rights and interests of the child. This is to
ensure appropriate action to meet the special needs of the child, but always subject to the
condition that these persons will make sure that the juvenile will be presented before the

154
PPR Nepal, Rehabilitation Reintegration Denied? A Critical Analysis of Juvenile System in Nepal, PPR
Nepal, Kathmandu, 2007, 24 .

62
court on the date of hearing. In practice, the safeguards provided by the laws and rules are not
fully respected and the investigation system is not a child friendly. It was reported that in
Rukum district, a 13-year-old boy was arrested on the charge of being a Maoist rebel and
then was held for 6 months with 54 adults in a cell having the capacity of 15 persons. 155In
Sindhupalchok district school students including Durga Sapkota of 9years, Uddhav of 10
years, Khil Nepal of 11 years, Samunder of 15 years, Gopal of 9 years and Bir Bahadur of 13
years old children were arrested and detained by the Police along with adults in a case of
murder of a Policeman. During their detention they were tortured and inhumanely treated in
police custody. In 2012 a 15 year boy was arrested by Police from outskirt of Kathmandu and
charged on public offence and CDO released the boy on bail but the Police did not released
boy and put him in custody in Hanuman Dhoka and charged on theft and submitted in the
Kathmandu District Court after 40 days of detention. This is an extreme case of illegal
detention of a juvenile and legal process is continued to take appropriate action against the
wrongdoer.156

PPR Nepal survey in 2011 shows that the interviews held with children showed that, 86%
children did not get an arrest warrant during arrest. In Nepal not only for children but also for
adults an arrest warrant should be served before his/her arrest. Likewise, the survey showed
that 66 percent children were detained with adults and only 34 percent were detained separate
from adult detainees. In most of the cases the cause of detaining together was cited as there
was no separate space for detaining children separately. Contrary to the constitutional
guarantee against torture and clear legal provisions it is revealed that 1 in 4 arrested juveniles
were tortured by the police, in comparison to 1 in 6 adults. The widespread practice of
arbitrary detention, torture and other ill treatment of juveniles in custody is a major concern.
It is also found that juveniles are held for long periods in pre-trial detention in often
inadequate conditions, in clear breach of national legislation, international human rights
standards and Supreme Court rulings.

This shows that there is a big gap between Nepal’s international obligations and
commitments regarding juvenile justice and the national policy, law and their implementation
in the arrest and detention phase in Nepal.

155
Yubraj Sangraula, The Roles Opportunity and Challenges of the Juvenile Justice System in Nepal: Need of
Diversion from the Criminal Justice System 4, (electronic version) 2004, 5 .
156
Case of Mr. X Kumar, case file accessed at PPR Nepal on October 8.

63
  Juvenile Courts and Trial Procedures

Section 30 of the Children’s Act 2075 requires that a juvenile be tried in a juvenile court or
by a juvenile bench and that the court proceedings protect the privacy of the juvenileby only
allowing the presence of the legal representative, the parents and relatives of the juvenile or
the legal guardian as well as any other social representative, considering the best interests of
the child. Since a juvenile court has not yet been formed in Nepal, some of the cases of
children are being dealt with by the juvenile benches. The majority of cases are being dealt
with by the regular courts. Section 30(4) of the Children’s Act provides for the incorporation
of social workers, child specialists or child psychologists along with the district judge in a
juvenile bench. Similarly, the presence of a legal practitioner to defend the juvenile is
required during case proceedings. The government shall appoint a lawyer if the juvenile is
not represented (section 26, Children’s Act 2075). The court hearing starts after the
Government Attorney decides that the case should proceed and files the charge-sheet in the
court. The court then decides whether to grant bail or to send the child to a Juvenile Reform
Home during the court proceedings on the factual basis of the case and the judge should
verify the age of the child if the charge-sheet differs from the statement of the child.157

For a closed hearing, legal professionals, a government lawyer, child specialists, the suspect,
victims, the guardians of the juvenile and police, if permitted by court, as well as court
personnel may be present158. The documents of closed hearings shall not be disclosed to
anyone, except the plaintiff, the defendant and the victim(s). Facts of the closed hearing shall
not be published in any news media. The Government of Nepal has promulgated Juvenile
Justice (Procedure) Rules, 2007 (the 2007 Rules) under the power conferred by Section 58 of
the Children’s Act. The tasks of adjudication, disposition and determining punishment are
performed by the same legal body, the juvenile court. Special procedures are required to be
followed in cases where juveniles are either as plaintiffs or defendants. Any case involving
juveniles shall get priority for hearing and deciding. The 2007 Rules provides for a separate
police unit or police personnel to conduct the investigation of a case of a child in conflict
with the law (Rule 3). In each district a juvenile bench shall be formed.

In the bench, there will be a District Judge, a social worker and a child specialist or a child
psychologist (Rule 6). The court should provide a copy of the charge-sheet and other related

157
KSL, Juvenile Justice System in Nepal: A Glance View of International Standards, Kathmandu School of
Law, Bhaktapur 2003, 12.
158
'See supra/infra note 4 at 35.'

64
documents to the parents or guardian of the juvenile immediately. If they refuse to take the
documents it can be handed over to the lawyer of the child(Rule 7). The 2007 Rules provides
that the following procedures should be followed during the hearing of the cases of children:

 The hearing in the juvenile court or juvenile bench should be conducted in a child
friendly environment (Rule 12(1)).
 The language used in the hearing process should be clear and understandable for the
child, taking into consideration his or her age, physical and mental state (Rule 12(2)).
 The examination process may take place in a separate room in-camera for the
protection of the juvenile (Rule 12(3)).
 While examining the child, his/her parents, guardian or lawyer can stay with the child
(Rule 12(5)).
 The juvenile bench or juvenile court should decide the case within 120 days from the
date of filing of the case (Rule 16).
 In the decision on the child’s case the court should include a summary ofthe charge-
sheet, the evidence, proof of the offence, the opinion of the childexpert, and
arguments of the lawyer. Also, the reasoning of the decision aswell as an estimation
of the causes and the measures of reformation of the juvenile must be included (Rule
17).
 A copy of the decision shall be provided to the juvenile without charging anycost
(Rule 19).

Determining age of children is crucial but the complications are there in many cases in Nepal.
Since the age determines whether the suspect is a child or an adult, which in turn determines
the criminal responsibility of the suspect and the nature of procedures to be followed, the
suspect may try to forge or decrease his or her actual age in order to get privileges and
protection as a child. On the other hand, the other side will often intend to establish the age of
the suspect as highly as possible to follow the normal process in the proceedings.159

Section 83 of Children’s Act, 2075 states that, age of the suspect shall be determined by the
registered medical doctor. The 2007 Rules provides that the age of the child shall be
determined through the date of birth established according to the birth certificate issued at a
hospital (Rule 15(a)). In case the certificate is not available, the date of birth may be

159

'See supra/infra note 33 at 34.

65
established according to the certificate issued by the office of the local registrar. In case such
a certificate is also not available, the date of birth may be established by the character
certificate issued by the school of attendance.

In case such certificate is not available either, the age shall be certified by a government
hospital (Rule 15(b, c and d)).The Committee on the Rights of Child has repeatedly raised its
concern about the “lack of a proper official system of age verification in place” in Nepal.160

The Public Offence and Punishment Act, 1970 provides for the District Administration
Office (DAO), a quasi-judicial body, with the power to conduct investigation of a case, try it
and impose sanctions including imprisonment in relation to the offence under the Act.
Basically, DAO is an administrative body and it looks after the administration and
maintenance of peace and security in the district. A baseline survey conducted by Kathmandu
School of Law revealed that during five years period between 1998 and 2002, 1522 cases
involving children were recorded in Kathmandu. Out of these 1522 cases, 1276 cases were
tried by the DAO and the remaining ones went to court. 161 The DAO is basically a
government administrative body. It does not have formal justice delivery settings. Therefore,
the decisions are taken without following the principles, due process of law and the
recognized principles of justice.162The Committee on the Rights of Child has also raised this
issue and stated that it ‘is alarmed that children are often brought to trial without any proper
investigation’ and that a large proportion of juvenile cases are dealt with by the District
Administration Offices which are quasi-judicial body.163 Recently, the Supreme of Court of
Nepal has directed Ministry of Home Affairs, Nepal Government to send a formal letter to
the CDO to send all the juvenile cases (not including adult) in proceeding to the concerned
District Court for the remaining proceedings and the Court has spelt out that the CDO does
not have authority to hear the cases of juveniles.164Section 55(2) of the Children’s Act
provides that the Juvenile Court shall not have jurisdiction to hear and decide the case of a
child in conflict with the law when the child has been involved in the case along with a
person who has attained the age of majority. It seems, this provision curtails the rights of a
child enshrined in international and national instruments including the CRC and the

160
CRC, Concluding Observations of the CRC for Nepal's Seconds and Third Combined Report, 24
(Publication no CRC/C/15/ Add.261), (Retrieved 13 June 2008: http://www.crin.org/
resources/find.asp) (Accessed 10 July 2019).
161
'See supra/infra note 33 at 13.'
162
'See supra/infra note 33 at 86'.
163
'See supra/infra note 33 at 24.'
164
Saroj Rai v Government of Nepal, Writ No. WH-0025 of the year 2066.

66
Children’s Act which provide special care, protection and privileges such as, the children in
conflict with the law to be heard with special protection in Juvenile Courts. Even if a minor
has allegedly committed a crime with adults (s) he is still a child with equal rights as other
children and should be treated as a child. Just an allegation or even conviction with an adult
cannot be a valid reason for treating him/her as an adult. Thus this provision is discriminatory
against the minor and against the principle of the best interests of the child. Among the
children interviewed, contrary to the legal provision of compulsory legal assistance during
the proceedings of the case, 17 percent of them did not get any lawyer’s assistance and 83
percent got the service of lawyers during the court proceedings.165

From the above discussion it is clear that Nepal has still a long way to go in order to fill the
gaps with its international obligations in the implementation of comprehensive juvenile
justice system. The gaps between international standards and the Nepali system are big. The
gaps between Nepali law and policy and their implementation are also big. If we compare the
international standards with the current practice in Nepal, then the gap becomes ‘very big’. In
conclusion, the Government of Nepal has taken some steps in promulgating law and rules to
make the juvenile justice system serve the best interests of the child, but it needs to do much
more in order to achieve proper implementation of these laws and rules. More steps have to
be taken to make the Nepali juvenile justice system serve the best interests of the child.

Children represent both the present and future of the nation. Without making a delay by
waiting for their turn to come tomorrow, it has become essential to protect and promote
children from today itself by properly using the resources and the means available in the
country. Child Rights sector represents the important dimension of the Human Rights
Campaign. The extensive objectives of the Human Rights Campaign cannot be achieved
without protection and promotion of the Child Rights. In this context, the Child Rights are
matter of concerning to all. Underlining the need, the General Assembly of United Nations
Organization adopted the Convention on the Child Rights (CRC) in 1989. The Convention
has defined and ensured the Child Rights related to the Right to Life, Right to Protection,
Right to Development and Right to Participation. The provisions related to responsibilities of
the family, the society and the State to implement the Right of the Child are defined in the
Convention. Nepal has ratified the CRC on September 14, 1990. Activities of the
Governmental and the non-governmental agencies are focused on ensuring the Child Rights

165
KSL & CeLRRD, Baseline Study on Juvenile Justice System in Nepal, Kathmandu, 8 (2010).

67
by formulating the laws, regulations, policies, work plans and programs based on the
commitment.

Since nearly two decades, Nepal is continuously going ahead towards the respect, protection
and promotion of the Child Rights. During the period, the State has made constitutional
provisions by recognizing the issues related to the Child Rights and protection of the Child
and also by formulating laws, regulations, national policy and national work plan in order to
protect their rights. Different agencies in national and local level have been constituted to
transform the declared policies and programs related to the Child Rights into practice. The
UN Agencies, INGOs and NGOs stationed in Nepal have made contributions to support these
activities. Nepal has gained remarkable achievements during last decade in the field of child
education, child health and the child participation. However, we should not forget that the
reality that these achievements are yet to meet the National Target Goal. Therefore, it is
necessary to review the reasons for failure to achieve the goals by institutionalizing our
achievements in protection and promotion of the Child Rights so that our achievement would
be strong enough to protect children from violence, abuses and exploitations.

 Nepal’s current Constitution of Nepal 2072 B.S. as well as new Children Act 2075
recognizes special rights of children, including the right to education, basic health,
social security, Justice and protection Concerned ministries and departments,
particularly the Ministry of Women, Children and Social Welfare and the Child
Welfare Board at center and district are not adequately resourced to carry out
programs.

 National Human Rights Commission does not have sufficient legislative mandate nor
does it have resources to act on complaints and to ensure redresses.

 The juvenile justice system in Nepal is not fully implemented, a separate and distinct
juvenile justice system which embraces the direction provided by CRC and ensures
that children in conflict with the law are treated substantially different than adults at
all stages of the proceeding and thus ensures best interests of the child.
 Most of the children who come into conflict with law in Nepal end up deprived of
their liberty either in police lock-ups, prisons, or Juvenile Reform Homes since there
is no provision for diversion and alternative sentences.

68
  At all stages of handling cases of children, the formal justice mechanism is used. But
the actor of the formal juvenile mechanisms (Police, Judges, Government Attorneys,
defense Lawyer) are not trained at all or inadequately trained.
 The handling of cases of children is often not as per their best interests and not as per
the letter and spirit of the international binding and non-binding instruments to which
Nepal has shown its commitment.
 There is a lack of specialized agencies for handling cases of children in conflict with
the law. No Juvenile Court has been established in the country as required by Section
55 of the Children’s Act. No separate Police or Government Attorney Units for the
cases of children in conflict with the law have been established.
 Majority of the children in conflict with the law feel that the attitude of judges is not
friendly towards them. Most of the children who go through the process of juvenile
justice are not able to become a ‘normal’ child again and are not rehabilitated in their
society. There are some provisions for the protection of the best interests of the child,
the implementation of those provisions are very weak.

6. 4 Role of Judiciary Regarding Rights of accused Children

It is not necessary to reiterate about the provisions of child rights in the convention and
national laws since they have been analyzed in the respective chapters. The jurisprudential
vision developed by the Nepalese judiciary in the context of the national and international
legal provisions, standards and practices relating to child rights will be discussed in theses
section.

The right to organization is one of the significant rights of a child. The full bench of the
Supreme Court has rendered significant interpretation of this right, in the Writ Appeal No.
147 of the Year 2057 filed against the decision of the Ministry of Home that refused an
application to register an organization named Jagriti Children Club by children of
Pragatinagar of Nawalparasi District. The Ministry of Home had disqualified children, as
minors of below 16 and thus not competent pursuant to the existing law, to establish an
organization. In this case, the Supreme Court established a progressive principle in favor of
children opining that the right to organization has been ensured by article 15(1) of the
Convention on the Rights of the Child, 1989 ratified by Nepal, which was not restricted by
the Children’s Act, 2048, therefore, it was not appropriate to deprive children from the

69
fundamental right to organization only because they are minors. 166 This interpretation is a
burning example of a best practice, which has recognized the right of a child to organization
and institution by making a positive analysis of the convention and constitution, even though
the Act had no clear provision.

Children’s right to be free from cruel, inhuman behavior and torture has been protected by the
convention and other provisions including section 7 of the Children’s Act, 2048. But, the
proviso of the same section 7 had mentioned that admonishing and general assault against
the children by his/her father, mother, family members, guardian or teacher in favor of
children shall not be deemed as the violation of the same section. The part relating to the
general assault in the proviso was challenged in the Supreme Court and the Court was
requested to declare it ultra vires contending that the provision encouraged torture of children
and thus was against article 19, 28(2) and 37 of the Convention on the Rights of the Child,
and article 14(4) and 25(8) of the constitution. The Special Bench of Supreme Court,
responding to the Writ No. 121 of the Year 2060, declared the provision ultra vires after
finding the provision as against the spirit of article 14(4) and 25(8) of the constitution, and
issued directive order in the name of the Government to develop appropriate and effective
means to prevent the existing and possible future physical punishment and other cruel,
inhuman and degrading behavior against children.167

The issue of torture was again raised in the Writ No. 063-WS-0031. In this writ the
petitioner had challenged the constitutionality of NO. 6(3) of the Chapter of Homicide of
National Code (Muluki Ain, 2020), which had provided that any accidental loss of life of a
child due to an assault by a teacher or guardians in the name of protection and education will
be excused. The petitioner challenged the provision on the ground that it encouraged assault
against children and was against article 12(1), 13 and 22 of the Constitution and article 19(1),
28(2) and 37(a) of the Convention on the Rights of the Child. The Supreme Court also agreed
to the petitioner’s application and declared the provision ultra vires from the date of the
decision by holding the provision as provocative towards torture against children. 168 Along
with this, a directive order was also issued in the name of the respondents to establish an
effective mechanism to enact laws, to develop legal instrument and implement them in order
to prevent physical or mental torture or misbehavior against children and to include the
provision of disciplinary action against the teachers conducting such offences.
166
NKP (2058), No. 7/8 Decision No. 423.
167
Writ No. 121 of the year 2060 B.S. decided on 2061.
168
NKP (2065), No. 8, Decision No. 567.

70
Every child has right to name and identity. Since article 7 of the Convention on the Rights
of the Child has ensured the birth registration and right to citizenship without discrimination,
the Special Bench of the Supreme Court in the Writ NO. 121 of the Year 2060, where the
issue of difficulties relating to registering of the birth of the children of Badi community was
raised due to the un identification of the paternity, issued an order of mandamus in the name
of the respondents to provide citizenship to all children whose paternity has not been
identified, along with the children of the Badi community, pursuant to article 9(2) of the
Constitution of Kingdom of Nepal, 2047 and section 3(4) of Nepal Citizenship Act, 2020.169

Likewise, in the Writ No. 43 of the Year 2061, where the issue was raised regarding section
3(1) of the Children’s Act, 2048 which had provided that every child must be named as per
his/her religion, culture and rituals by his/her father, or if father is not present, by mother or
in the absence of both parents by any other member of the family. The petitioner argued that
the provision must be declared ultra vires pursuant to article 11 of the Constitution, since it
discriminated women and that the provision ranked women as second class citizen. The
Supreme Court quashed the writ on the ground that the issue of section 3(1) of Children’s
Act, 2048 raised by the petitioner was just a procedural matter which could be amended
timely and thus was not necessary to declare the provision ultra vires.170

It is also responsibility of the state to protect children from the war or military activities.
However, the provisions in the Boys Recruitment Regulations of the Military and the Police
permitting recruitment of children in the military and the police had violated the child right
ensured by article 38 of the Convention on the Rights of the Child which has restricted the
recruitment of children in the armed military and deployment in the war. In the Writ No. 71
of the Year 2062, where the same provisions were challenged, the Special Bench of the
Supreme Court declared such provisions of the Military Boys (Recruitment and Terms of
Service) Rules, 2028 and the Police Boys (Recruitment and Terms of Service) Rules, 1942
ultra vires from the date of the decision by analyzing the Convention on the Rights of the
Child and its Optional Protocol, 2000 in addition to the constitution and the existing Nepalese
laws.171 With this decision, the provision of the recruitment of children in the military
and the police has been eliminated.

169
NKP (2062), No. 11, Decision no.76.
170
NKP (2063) No.15, Decision No.324.
171
NKP (2063) No.11, Decision No. 5436.

71
In the matter of guardianship of children, when the issue of priority was raised in the case
of habeas corpus was issued in context of clause 2 of No. 3 of the Chapter on Husband and
Wife of National Code and the Children’s Act, 2048 holding that the mother is the natural
and legal guardian, thus, no one is entitled to claim the guardianship until the mother is
present.172 In the case No. MS-0015 of habeas corpus of the Year 2066, where the similar
issue was involved, the requested order was issued by the Court stating that the children have
right to be nurtured with maternal care and that lactation is an inherent right of any child,
which is related to the right to life, and thus, clause 1 of No. 3 of the Chapter on Husband and
Wife of the National Code (Muluki Ain) could not be undermined, in case father and mother
of such child has to be separated because of any reasons.173

A writ petition, Writ No. 3215 of the Year 2061, was lodged with a request of an order of
mandamus to declare every domestic child labor below the age of 14 years free. The
petitioners argued that child labor in general and the Kamalahri system practiced in some
part of Nepal violated child rights. In this case, the Supreme Court, held that domestic child
labor and child labor in the name of Kamalahries were against the international human rights
law including the Convention on the Rights of the Child, and issued a directive order in the
name of the Government of Nepal to enact laws related to domestic servants, to include the
subject of child rights in the syllabus of children so as to aware children aware of child rights
and to fulfill the constitutional duty by formulating policies and launching programs for the
protection of interests and social security of the children freed from the slavery like Kamlahri
practice.174

Writ No. 3391 of the Year 2057 was filed with a request of an order of mandamus to
establish Child Welfare Homes, Orphan Homes and Mentally Incapacitated Center,
Child Reform Homes as prescribed by the Children’s Act, 2048. In this case, the Supreme
Court issued a directive order in the name of the government to “establish necessary Child
Welfare Homes and Child Reform Homes for the homeless, incapacitated, and children in
conflict with law….” Further holding “the necessary management have to be arranged as per
the age and legal capacity of the children to keep the juvenile delinquents separately from the
adults pursuant to Article 10(3) of the International Covenant on Civil and Political Rights
(ICCPR), 1966” and the Court also directed the Government “to proceed immediately with
the necessary management for the protection and promotion for the optimum benefits of
172
NKP (2061) No.14, Decision No. 7392.
173
NKP (2067) No. 9, Decision No.1193.
174
NKP (2067) No.11, Decision No.1342.

72
children since it is an obligation of the state under the Convention on the Rights of the
Child..”175

The Supreme Court, especially, has expressed its serious concerns in the establishment and
strengthening of the institutions involved in juvenile justice, in the incorporation of children
friendly behavior in the justice process, in the retention of children in Reform Homes or in
the separation of juveniles from adult prisoners or detainees and various other issues,
including the births of child involved in the sentencing.

The provision regarding the establishment of the Juvenile Court or Bench is provided in
section 55 of the Children’s Act, 2048. Article 40(3) of the Convention on the Rights of the
Child, 1989 has also directed the state party to the very. However, after the government failed
to establish juvenile court, a writ petition No. 2982 of the Year 2058 was filed with a plea of
an order of mandamus for the establishment of such courts. The writ petition was quashed by
the Supreme Court on the only ground of the juvenile benches were already established. 176
The writ was quashed on the only ground of the rejoinder of respondent, which, in turn,
shows the inadequate sensitivity towards juvenile justice.

Later through the notification in Nepal Gazette dated 28-12-2056, juvenile bench was
established, however, only with the provision of a District Judge, although according to the
prevailing laws such juvenile bench had to be constituted of, in addition to the district judge,
a juvenile expert, a child psychologist, a social activist. Therefore, a special petition of Writ
No. 60 of the Year 2061, was filed with a plea that the establishment of the juvenile bench
with only a District Judge was against the international norms and the existing Act, While
deciding the case, the order which hold that the inclusion of social activist, juvenile expert
and child psychologist in a juvenile bench is a discretionary provision and persons, apart
from the district court judge, could be included as far as such human resources were
available.177 However, in the same decision, mentioning the responsibility of establishing
juvenile bench lied on the government, a directive order was issued in the name of the
Office of the Prime Minister and Council of Ministers to initiate the process of establishment
of juvenile court immediately, and to inform the progress to the Supreme Court. The Court
also ordered the Judgment Enforcement Section of the Supreme Court, to monitor such order.
Notwithstanding the reluctance of the Court to order the inclusion of social activist, juvenile

175
NKP (2058) N0. 13, Decision No. 507.
176
NKP (2057) No.7, Decision No.306.
177
NKP(2062) No.5, Decision No.4351.

73
expert and child psychologist in a juvenile bench, the decision in the instant writ should be
regarded as an example of judicial activism.

The provisions of Camera Hearing of the cases where children are plaintiffs or defendants
are expressed in section 49(1) of the Children’s Act, 2048 and Rule 67 (a) of the Supreme
Court Regulations, 2049. On the basis of these provisions, the first hearing was conducted by
the Supreme Court in a Rape case of Criminal Appellate No. 3830 of the Year 2061. 178
Similarly, in a petition of Writ No. 3561 of the Year 2063, directive order has been issued
to enact laws for the maintenance of privacy and confidentiality of the identity of children in
cases where children are defendants, victims or in any appropriate cases or such cases heard
by Juvenile Court or Bench. The Supreme Court itself then issued a guideline for
conducting the hearing in such proceedings until laws are not enacted.179

The main objective of juvenile justice is not to punish children rather to rehabilitate them
through reform. Therefore, the process of juvenile justice requires certain reform in the
traditional justice system. In this regard, there needs to be reform from the investigation to
the time of judgment enforcement. The practice of filing habeas corpus petitions on the
initiation of child rights organizations and other activists started from the year 2057 in Nepal
to challenge the detention of children in the police custody and prison during the stages of
investigation, bail plea and for the sentencing purpose. Such habeas corpus petitions drew
attention towards the fact that police custody and prison sentencing of juveniles were against
the Convention on the Rights of the Child and the Children’s Act. As a result of such
petitions, the Court has also developed a clear judicial opinion in favor of retaining children
in Child Reform Homes by issuing important orders.

Devendra Ale vs. HMG, Office of the Prime Minister and Cabinet of Singh Durbar,
Kathmandu, et.al,180

Fact in issue:

The petitioner states that the preamble of the constitution of the kingdom of Nepal, has
guaranteed the human right of every citizen of Nepal in which school level student are ipso
facto include. Article 26(8) of the constitution imposes a duty to the state to take necessary
steps for the protection of rights and interest of the children. Article 14(4) ensures that no

178
NKP (2062) No.12, Decision No. 4531
179
NKP (2064),Decision No.7880, p.1208
180
Devendra Ale v. HMG,Writ no.52, NKP 2061.

74
person shall be subjected to physical or mental torture nor shall be given any cruel, inhuman
or degrading treatment. Section 7 of the children’s act, 1992 provides for immunities to the
children along with the provision against torture and misbehaviour. Neither the education
Act, 2028 nor the education rules, 2059 prohibit for torture related inhuman or degrading
treatment to the students. Apart from this, Article 19 of the convention on the Right s of the
Child, 1989 which is in consonance with the prevailing municipal law impose a duty to the
member states to take all appropriate violence, injury or abuse, neglected treatment,
maltreatment or exploitation while in the care of parents, guardian or any other person who
has the care of the child. Article 28(2) of the convention obliges the state parties to take
appropriate measures to ensure that school discipline is in manner consistent with the child’s
human dignity. Article 37 ensures that the children should not be subjected to torture or other
cruel, inhuman or degrading treatment or punishment. Likewise, Article 7 of the ICCPR,
1966 Art 5 of the UDHR, 1948 and the CAT, 1984 also prohibit torture other cruel, inhuman
treatment or degrading treatment or punishment. While the proviso to sec 7 of the Act permits
for normal beating and threatening the child by his/her father, mother, guardian or teacher for
the interest of the child. It has violated several rights of the child such as right to education
and right against torture and misbehaviour, hence Sec 7 of the Children’s Act being
inconsistent to the provision of the Constitution of the Kingdom of Nepal, 1990: it should be
null and void.

Decision:

In observation of the spirit of article 14(4) and 25(8) of the constitution of the kingdom of
Nepal 1990, legal obligation create by international treaties which has to be fulfilled,
emerging international campaign against physical / corporal punishment and torture being
inflicted to the child, round personality development of child, the provision contradicts the
spirit of the constitution and obligation stipulated by Sec 9 of the Nepal Treaty Act, 1990
under international treaty which Nepal has ratified. The provision contradicts the Article 5 of
the UDHR, 1948, which prohibits all types of torture, inhuman or degrading punishment:
Article 7 of ICCPR, 1966: Art 19, 28(2) and 37 of CRC, 1989: Art 1 and 4 of CAT 1948. Sec
7 of children’s Act 1992 seems unreasonable and contrary to the spirit of article 14(4) and
25(8) of the constitution of the kingdom of Nepal 1990 and hence declared null and void.

Analysis:

75
Children’s Act, 1992 the special act enacted after the ratification of CRC, 1989 for the
protection and promotion of rights of the child in Nepal. But the sec 7 children’s Act, 1992
allows corporal punishment in the best interest of the children which contradicts with the
Article 5 of the UDHR, 1948, Art 7of ICCPR, 1966, Art 19, 28(2) and 37 of CRC, 1989 and
Art 1 and 4 of CAT, 1984 respectively. And, art 14(4) and 25(8) of the constitution of the
kingdom of Nepal, 1990. On the basis Supreme Court nullified the Section 7 of the children’s
Act, 1992 which is applicable of principle of Monism practiced by Apex Court.

Tillotam Poudel vs. Minister of Home Affairs et.al.181

Fact in issue:

The facts and order issued in this writ petition brought under Rules 3(1) of the Supreme Court
Rules, Art 15 of the Convention has guaranteed the children the right to form their own
association and the freedom to participate in its activities.

With the objective of protecting the basic right of children by rising public awareness against
social malpractices through various programs, some children including the petitioner applied
to Nawalparasi District Administration Office along with a recommendation letter issued by
the concerned VDC for registration of an association called “Jagriti Chid Club”.

The Home Affairs communicating its decision informed that the proposed Jagriti Club could
not be duly registered since a person blow the age of 16 has been described as a minor under
the Nepal law and such person could not be competent in the eye of law. When this decision
was challenged by the petitioner under section 4(3) of the association Registration Act, 1977,
the Home Ministry was adamant on its earlier decision.

The petitioner contended that the UN Convention on the right of the Child, 1989, after
ratification by Nepal, is binding upon all such state parties to the convention. Under sec 9 of
the Treaty Act, 1990, such convention shall be applicable as the Nepal law. Dyeing the
children’s freedom to form an association as provided by that convention shall not be only
contrary to the right guarantee by Art 12(3) (c) of the Constitution of kingdom of Nepal,
1990. There is no provision regarding the requirement of being a Nepali citizen in the
association Registration Act 1977 and the concerned Rules. The petitioner and his colleagues
have not been able to acquire citizenship only because of the age factor. But one should not
be treated as a non-citizen only because s/he does not possess a citizenship certificate.
181
NKP (2057), 12 Decision no. 174.

76
Decision:

The full bench held that is was the main contention of the petitioner that art 15 of the UN
Convention on the right of the Child, 1989 has guaranteed Children’s right to freedom of
association and freedom of peaceful assembly; and as the said Convention has already been
ratified by Nepal it has acquired legal status as a Nepal law; therefore the refusal of the
respondent to register the proposed association of the children i.e. the Jagirit Club on the sole
ground that the applicant’s age below 16 violate the rights guaranteed by Art 12 2(c) of the
constitution of Nepal. Therefore the impugned decision and the activities of the respondents
are deemed to be void regarding children’s right to freedom of association.

Prohibited by the law children cannot be deprived to the fundamental right relating to the
freedom of association guaranteed by Art 12 2(c) the constitution of the kingdom of Nepal,
1990 only for the sole reason of their minority. Article 15(1) of the convention of the rights of
the children 1989 ratified by Nepal has guaranteed the children’s right to form association
and peaceful assembly. even as in case of conflict with the prevalent Nepal law the provision
s of the above mentioned convention to which Nepal is also a party shall prevail pursuant to
sec 9(1) of the Nepal treaty Act 1990. It does not tend to impose restriction on the children’s
right to for association and peaceful assembly. The state parties to the convention also seem
to be specially obliged to respect such a right.

in this context under Art 15(2) of the aforesaid convention the authority empowered to
registered association s may discharge its duty in accordance with the law by taking into
consideration on factor as to what type of provision are there in the Jagriti Child club
statute,1997 and whether or not those provisions are I tune with the prevalent Nepal Law and
which of those provisions need to be subjected to necessary restrictions for the protection of
national security or for safeguarding the rights and freedoms of others. The decision of the
Home Ministry refusing permission for account of being of an association of minor children
was quashed.

Analysis:

Convention of Right of the Child, 1989 was ratified on 14 th September, 1990. Children’s Act,
2048 (1992) is the example where State showed its commitment toward fulfilment of
protection and promotion of rights of child in the best interest of child in Nepal. Supreme

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Court is the guardian of protection of fundamental rights of Nepalese citizen. Its role is very
important in protection and promotion of human rights.

Sapana Pradhan Malla vs. office of Prime Minister and the Office of Council of Minister,
Government of Nepal182

Fact in issue:

The petitioner has made claims that right of the equality and self-dignity have been accorded
protection at the international level through various legal provision relating to human rights
including the UDHR. These rights of Quality and self-dignity are guaranteed by Article 11
and 12 of the Constitution of kingdom of Nepal 1990. The preamble of the charter of the
United Nations has reaffirmed the basic human rights and the right to self-dignity of all men
and women. Whereas Art 13 of The UDHR has guaranteed dignity and respect for the
individual and the right to privacy of their residence, family and correspondence.

Likewise Rule 46(b) of the District Court rules, 2052, Rules 60 (a) of the appellate Court
Rules, 1992 and Rules 67(a) of the supreme court rules 2049 have provided for in camera
hearing and the formulation of procedures for conducting the trial of cases relating to minors,
rape, human trafficking in human beings establishing relation, divorce and also any other
case which the court deems fit for the trial in camera court.

Santosh Mahato vs. Office of the Prime Minister and the Cabinet, Singha Durbar et. al. 183
special writ no. 60 of the year 2004

Facts in issue:

The petitioner contented that Section 55 of the Children’s Act lays down procedures related
to hearing of cases and the authorities to which children are plaintiff and defendants. Clause
(1) of the Section 55 stipulates the formation of Juvenile Court through a notification in
Nepal gazette by His Majesty’s Government, Clause (2) provides for original Jurisdiction of
Juvenile Court is constituted. Likewise, Clause (4) contains for Juvenile Bench in each
District Court for trial and disposal of cases to be heard by the Juvenile Court, Clause (5)
provides for composition of Juvenile Bench comprising social worker/activists, child
specialist or child psychologist in addition to District judge and such a composition has to be
done by His Majesty’s Government in consultation with Supreme Court. Clause (6)
182
Sapana Pradhan Malla v. Office of Prime Minister, Writ no. 3561 of the year (2007).
183
Santosh Mahato v. office of Prime Minister, Writ no. 60 of the year (2004).

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determines the procedures for trial and disposal of cases to be heard by Juvenile Court or
District Court as prescribed in the Summary Proceeding Act, 2028 (1961) until such
procedure are prescribed.

In context of non-composition of Juvenile Court, under Section 55 (1), Ministry of Women,

Children and Social Welfare constituted a Juvenile Bench in each District Court consisting of
the District Judge through a notification published in Nepal gazette dated April 10, 2000 that
came effect from April 13, 2000 pursuant to clause (4) and (5) of the Children’s Act. The
petitioner being a citizen of Nepal, having a meaningful relation with right and interest of
child, claimed for composition of Juvenile Court pursuant to Section 55 (1) of the Children’s
Act, 2048 (1992) and also contended to declare the notice null and void being in consistent
with Article 11 of the Constitution of Kingdom of Nepal 2047 (1990), Section 55 (5) of the
Children’s Act, 2048 (1992) and Article 12 and 40 of the Convention on the Right of the
Child, 1989.

The proviso to Article 11 (3) for the constitution stipulated that special provision may be
made by law for the protection and promotion of right and interest of the child. While
constituting the Juvenile Bench pursuant to Section 55 (5) of the Children’s Act. The Bench
shall comprise the child specialist or child psychologist and social worker/activist in addition
to the District Judge. But, the notification of April 10, 2000 comprised only the District Judge
in the Juvenile Bench which is contrary to the proviso to Article 11 (3) of the Constitution
and Section 55 (5) of the Children’s Act,2048 (1992). It is also contravening guarantees that
opportunity shall be provided to the child in any judicial and administrative proceeding
affecting then either directly or through representative or an appropriate body in the manner
consistent with the procedural rules of national laws. Article 40 (3) of the Convention obliges
state party to promote the establishment of laws, procedures, authorities and institutions
specially applicable to children alleged as, accused of or recognised as breaking the penal
law. Thus the notification contravenes the provision of the convention to which Nepal has
ratified on September 1990 and is equally enforceable as Nepal law by virtue of Section 9 (1)
of the Nepal Treaty Act, 1990. Therefore, the notice should be declared as null and void
pursuant to Article 88 (1) of the Constitution of Nepal 2047 (1990).

Decision

As the petitioner has contended the notification of April 10, 2000 issued by HMG, Ministry
of Women, Children and Social Welfare in Nepal gazette containing, it is hereby notified that

79
HMG has decided to constitute a Juvenile Bench comprising the District Judge in each
district for the Kingdom of Nepal effective from April 14, 1990 pursuant to Section 55 of
Children’s Act, 2048 (1992), is consistent with the Proviso to Article 11 (3) of the
Constitution of the Kingdom of Nepal 2047 (1990), clause (5) of the Section 55 of the
Children’s Act 2048 (1992) and Article 12 (2) and 40 (3) (b) of the CRC, 1989. Therefore, it
should be declared as null and void pursuant to Article 88 (1) of the Constitution of Nepal
2047.

The Proviso to Article 11 (3) of the Constitution of Kingdom of Nepal, 2047 (1990) stipulates
the special provision may be made by law for the protection and advancement of the interest
of women, children, and the aged or those who are physically or mentally incapacitated or
those who belong to a class which is economically, socially or educationally backward.
Children’s Act, 2048 (1992) was enacted and came into force for the advancement of ever
growing physical, mental and intellectual capacities of the child and protection of their rights
and interest as stipulated in the Preamble of the Act. Likewise, the CRC, 1989 to which
Nepal has ratified on September 1990 also contains the provision for special protection of
rights and interest of the child. There is no debate and dilemma in fact that ratification and
accession of the CRC, 1989 was for the special protection and advancement of the child
mandated by the constitution.

Section 55 of the Children’s Act provides procedures are case hearing authorities falling
under the Act. Clause (1) of the Section 55 empowers HMG shall constitute the Juvenile
Court through a notification in Nepal gazette as per the necessity. Such a notification also
specifies the territorial area and location of the Court. Clause (3) determines the jurisdiction
of the District Court until the Juvenile Court is constituted in cases where children are
plaintiff and defendants. Clause (4) specifies for transfer of cases from the District Court to
Juvenile Court and Clauses (5) gives discretion to HMG in composition of Juvenile Bench
comprising social worker/activists, child specialist or child psychologists in addition to
District Judge for the purpose of trial and disposal of child related cases. While constituting
the Juvenile Bench, consultation with the Supreme Court is mandatory. Clause (6) of the
same Section provides procedures for hearing and disposal of cases. Procedures shall be
determined as specified and till such procedures are specified, the procedures of the Summary
Proceeding Act 2028 (1971) shall be applicable.

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Article 12 (2) of the Convention on the Right of the Child, 1989 provides opportunity for the
child to be heard in any judicial and administrative proceedings affecting them in a manner
consistent with the procedures of national law. Likewise, Article 40(3) of the Convention
obliges state parties to promote the establishment of laws, procedures, authorities and
institutions especially applicable to children alleged as, accused off, or recognized as having
infringed the penal law.

Section 55 (1) of the Children’s Act, 2048 (1992) stipulates that His Majesty’s Government
shall as per the necessity, constitute a Juvenile Court through a notification in Nepal gazette.
Main objective of the Act is to establish a Juvenile Court. Implementing the legal provision
relating to composition of Juvenile Court, petition no. 2982 of the year 1997 petitioner
advocate Bal Krishna Mainali filed a writ petition against the Ministry of Women, Children
and Social Welfare and others. The writ petition was dismissed by the Division Bench of the
Court on May 16, 2000 on the ground that the Juvenile Bench was constituted recently and
the written response submitted by the respondent Cabinet Secretariat and Ministry of
Women, Children and Social Welfare as per the availability of human and physical
infrastructure gradually. But the commitment expressed by the government in the writ
petition did not materialized.

Therefore, as mentioned earlier, it seems that to constitute the Juvenile Court pursuant to
Section 55 (1) of the Children’s Act, 2048 (1992) is an obligation of the Government. Hence,
a directory order in the name of respondent Office of Prime Minister and the Cabinet is,
hereby issued to gear up the function of establishment of Juvenile Court pursuant to the legal
provision and let the notice of the progress be given to the Judgement Execution Section
subordinate to the Monitoring and Inspection Division of this Court. Likewise, a directory
order in the name of Monitoring and Inspection Division of this Court is, hereby issued for
effective monitoring of establishment of Juvenile Court.

Analysis

Supreme Court verdict to constitute the Juvenile Court pursuant to Section 55 (1) of the
Children’s Act, 2048 (1992) and issuance of a directory order to gear up the function of
establishment of Juvenile Court is a parental approach of Supreme Court towards fulfilment
of the obligation created on ratification of CRC and enactment of Children’s Act. Supreme
Court as the guardian of Nepalese citizen has taken proactive role in this case to guarantee
children rights or to institute ‘Juvenile Justice System’ in Nepal.

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The Nepali Judiciary has played a significant role for the protection of the rights of children
in conflict with the law. The Supreme Court of Nepal issued an order of habeas corpus and
directed the government authorities to keep the petitioner (14 year old child) in the juvenile
reform home instead of sending him in prison for remand purposes (Bablu Godia vs. Banke
District Court , Writ no. 3390 of 2000). The Supreme Court, citing ICCPR article 10(3) and
CRC article 37(a), issued an orderin the name of prison authorities not to keep a minor in
custody or prison together with adult prisoners and to shift the petitioner (a convicted child)
who was kept in a prison with adults to the Juvenile Reform Home (Keshav Khadka vs.
Dhanakuta District Court, Writ no. 3685 of 2000). In another case, the SC directed the prison

authority to release the petitioner (a child) as she was not sent to a reform home. (Sarita
Tamang vs. Illam District Court, Writ no. 21 of 2001). In 2005 the SC issued a Directive
Order to the Nepali Government to establish a juvenile bench in each of the 75 districts to
hear the cases of children (Santosh Kumar Mahato vs. the Cabinet, writ no 2004).184The
above mentioned decisions shows that the court had a positive attitude towards the reform of
the juvenile justice system in Nepal.

CHAPTER VII

CONCLUSION AND RECOMMENDATION

7.1 Conclusion

184
'Ibid' 35-36.

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Children are among the most vulnerable members of society. The law of the state protects
children until they are deemed to be able to interact in society as adults. For this reason
children are treated differently from adults by the criminal justice system. . Most children in
conflict with the law have committed petty crimes or such minor offences as vagrancy,
truancy, begging or alcohol use. Some of these are known as ‘statusoffences’ and are not
considered criminal when committed by adults. In addition, some children who engage in
criminal behavior have been used or coerced by adults. too often, prejudice related to race,
ethnicity or social and economic status may bring a child into conflict with the law even
when no crime has been committed, or result in harsh treatment by law enforcement officials.

According to Articles 37 and 40 of the convention on the rights of the child (1989), Children
in conflict with the law have the right to treatment that promotes their sense of dignity and
worth, takes into account their age and aims at their reintegration into society. Also, placing
children in conflict with the law in a closed facility should be a measure of last resort, to be
avoided whenever possible. The convention prohibits the imposition of the death penalty and
sentences of life imprisonment for offences committed by persons under the age of 18.

The CRC and the UN Resolutions and Declarations such as the Beijing Rules, the Riyadh
Guidelines and the JDLs provide for an international framework and standards for the
juvenile justice system. Nepal has ratified CRC and shown commitment to these instruments
therefore, it is under the ‘obligation’ of establishing a comprehensive and separate juvenile
justice system to serve ‘child rights’ and ‘the best interests of the child’.

In Nepal, the juvenile justice system was long considered as part of the criminal justice
system. Reforms of the juvenile justice system started after the restoration of multiparty
democracy in 1990. The concept of a separate juvenile justice system was further developed
by the promulgation of the Children’s Act 1992. Likewise, the promulgation of the Juvenile
Justice Procedures Rules 2007 further strengthened the juvenile justice system in Nepal. Even
after these developments the juvenile justice system in Nepal is not fully implemented. New
children Act 2075 also strengthen the concept of juvenile court. The Nepali juvenile justice
system is more punitive and retributive than restorative, which is much in contrast with the
purpose of a juvenile justice system. The Nepali juvenile justice system is suffering from
many gaps such as, the non-existence of a national action plan for juvenile justice,
diversionary and alternative sentencing provisions and delinquency prevention and
reintegration program of the child.

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In the last 20 years Nepal has made good efforts to establish a separate juvenile justice
system. These efforts include ratification of the CRC, promulgation of the Children’s Act
containing provisions regarding juvenile justice, promulgation of the Juvenile Justice
Procedures Rule 2007, establishment of Juvenile Justice Coordination Committee,
establishment of two Juvenile Reform Homes (Bhaktapur and Pokhara) and infrastructures
have been built Juvenile Benches in 40 districts. Awareness about the need for a separate,
well implemented juvenile justice system has been raised among the stakeholders. On the
other hand, we can see the lack of strong political will to establish a comprehensive and
separate juvenile justice system as per Nepal’s international commitment.

There is only one Juvenile Reform Home in Kathmandu to cover the whole of Nepal. No
separate Police or Government Attorney Units for the cases of children in conflict with the
law have been established. The Nepali juvenile justice system is, at present, not fully
separated from the adult criminal justice system and most of the proceedings are identical.
Misbehavior, abuse, torture, cruel and inhuman behavior is widespread and children are often
handcuffed and detained with adults.

In conclusion, we can draw that in spite of some good efforts taken by the government of
Nepal, the Nepali juvenile justice system needs significant reforms in order to comply with
the CRC framework and other international human rights instruments. The reforms are
necessary to make the Nepali juvenile justice system in compliance with the international
standards and to serve the best interests of the child in conflict with the law.

7.2 Recommendations

 The government should ensure basic right to education, basic health, protection and
justice to criminally accused children for this they have to work to implement the
laws which are guaranteed by Constitution and other Codes.

 Establish specialized institutions for juvenile justice such as Juvenile Courts or

Benches, separate units in Police and Government Attorney offices.

 Ensure proper implementation of existing provisions such as, prohibition on torture,

no use of handcuffs, arrest by plain clothed Police, separation from adult detainees,
compulsory legal representation,

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 Introduce diversion mechanisms such as victim offender dialogue, community
mediation, community conference,
 Pay attention to infrastructure development, build at least a Juvenile reform Home in
each five regions, provide separate detention places,
 Provide special training and education to the actors of the juvenile justice system,
 Formulate effective and practical rehabilitation and reintegration policy so that the
children in conflict with the law become a good citizen,
 Establish a data bank compiling data related to juvenile justice

 The government should either set up a separate commission for child rights or a
special commissioner for child rights within National Human Rights Commission.

 The government should continue consultations with civil society on policy reform
and expedite endorsement of the Child Rights Act, Education Regulation, Child
Protection Policy, minimum standards for child care homes and child policy
immediately.

 The government should increase its efforts to ensure implementation of existing laws
guaranteeing the right to non-discrimination as stipulated in article 2 of the
Convention of the Rights of the Child by adopting appropriate legislation and
enforcement measures to end discrimination against girls, Dalits, children with
disabilities and children with HIV and AIDS, and strengthen monitoring mechanisms.

 The government should take immediate measures, including legislation, to protect all
children, whether girls or boys, from sexual abuse until the age of 18, including
lengthening the period for reporting abuse; ensure child molestation cases are
represented by the state, ban corporal punishment; establish child friendly
administrative and judicial procedures for child victims and witnesses of crimes to
ensure they receive adequate protection, rehabilitation and compensation including
right to confidentiality.

 The government should implement the Child Act 2075 and Juvenile Justice
Procedure Regulation 2006; establish a Juvenile Court and there should be special
units within the police, public prosecutor’s office and judiciary to deal with children.
Legislative reform must include restorative practices, diversion and child friendly
procedures in juvenile justice system.

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 The government should ban all kinds of violence in school including corporal
punishment and set up monitoring mechanisms for violations, implementation of
policies and code of conduct.

Bibliography

International Instruments
 Convention on Child Rights, 1989 A.D.

86
  International Covenant on Civil and Political Rights 1966 A.D.
 Universal Declaration of Human Rights, 1948 A.D.
 Convention against Torture, cruelty, Inhumane and Insulting conduct and
Punishment,1984
 Guidelines for Action on children in the Criminal Justice System 1997
 Optional Protocol to the convention on Child Rights against use of Children in
Armed Conflict,2000
 Optional Protocol to the convention on Child Rights against Child Trafficking
Engagement of Children in Prostitution ,2000
 UN committee on Child Rights

Constitutions
 The Constitution of Nepal 2072 B.S. (2015)
 The Interim Constitution, 2063 B.S. (2006)
 The Constitution of Kingdom of Nepal 2047 B.S. (1990)

Acts and Rules

 Children Act, 2075 B.S. (2018)
 Children Act, 2048 B.S. (1992)
 Children’s Rules, 2051 B.S. (1994)
 Country Criminal Code 2074 (2018)
 Juvenile Justice (Procedure) Regulations, 2063 B.S. (2006)
 Mukluk Ain, 2020 B.S. (1910)

Dictionaries
 The Black Law Dictionary
 The Oxford Advanced Learner’s Dictionary

Books
 Dyane, S. N. Fundamentals of Jurisprudence. Allahabad: Central Law
Agency, 2004.
 Mainsail, Lama Prasad. Juvenile Delinquency: Concept and Theory.
Kathmandu: Pairavi Prakashan, 2012.

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  National Judicial Academy, Research on Functioning of Juvenile Bench in
Nepal. Kathmandu: Formal Printing Press, 2012.

Research Reports
 Reports on Implementation Status of National human rights commission and
universal periodic review Recommendations on Child Rights, 2013.
 Khatiwada, Ishwor. Juvenile Justice and the Supreme Court. N. d.
 UNICEF. Juveniles in Detention: Police Custody Monitoring Report. 2004/05.
 Report on Child Rights in Nepal: Towards a Brighter Future for Children
(2015)
 State of Rights of Child in Nepal ANNUAL REPORT National Resource and
Information Centre CWIN-Nepal (2015)

Articles
 Adhikari, Ashish and Subedi, Narayan Prasad. “Judicial Trends, Some leading
cases and Best practices on child rights and juvenile justice in Nepal.” Child
Rights and Justice in Nepal 2012.
 Magar, Chandra Bahadur Saru. “Bal Nyayako Sandharva ma Sarvochha
Adalat bata Writ chettra ma aayeko Aadesh haru” Nyaya Chautari 6, 2069.
 Mainali, Laxmi Prasad. “Right to Juvenile Justice as Fundamental Right in
New Constitution of Nepal.” Nepal law Review 21, 2009.
 Pradhananga, Prof. Rajit Bhakta and Raut, Balram Prasad. “Theory and
Causative factors of Juvenile Delinquency.” Child rights and justice in Nepal
2012.
 Yonjan, Ajit. “State of Children in Nepal” Child Rights and Justice in Nepal
2012.

Websites
 <http://www.nhrcnepal.org/nhssssssssrc_new/doc/newsletter/Reprots-
Implementation%20Status%20of%20UPR%20on%20Child%20Rights
%202013.pdf>
 <http://lib.ohchr.org/HRBodies/UPR/Documents/Session10/NP/SCN_Savethe
ChildrenNepal_eng.pdf >

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 <http://www.unicef.org/nepal/NPA_English_Version_Final.pdf>
 <http://www.trivandrumdonbosco.org/partnerwithus.html?
gclid=CMn10qSgx70CFQlcpQodCToAUQ>
 <http://gyawalisagar.blogspot.com/2011/09/laws-and-treaties-on-child-rights-
in.html>
 <http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo
kathmandu/documents/publication/wcms_182988.pdf>
 <http://www.unicef-irc.org/portfolios/documents/486_nepal.htm>
 <http://en.wikipedia.org/wiki/Reform_school>

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