29 Legislative safeguards for child rights

Varalaxmi Moganty

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Table of contents

  1. Learning outcome
  2. Introduction
  3. Welfare legislations for the rights of the child
  4. Protective legislations for the rights of the child
  5. Summary

1. Learning outcomes

  • This chapter aims at giving an overview of legislative safeguards entrusted through Indian legislation
  • By the end of doing with this module students will aware of the protective and welfare legislations at central level that also insist the states to protect the rights of the child.

2. Introduction

The Constitution of India which came into effect from 26.1.1950 in its preamble itself held:

We, the people of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity of the nation. And true to its nature Indian constitution aimed at these goals through various legislations apart from its constitutional provisions for the rights and duties of citizens. And a child is not an exception for any legislative measures or safeguards in this way.

Apart from the constitutional measures restored in the Constitution for the rights of the child as a citizen child needs a special attention owing to its tender age and lack of enough physical and mental development to claim a right to its development. Further basing on the changing social and economic needs a nation has to introduce new legislations. Furthermore, from time to time we also need to amend the legislation and yet times we have repealed the laws that are not relevant to the present needs.

We have legislations especially enforced for the benefit of the child, such as the right of children to Free and Compulsory Education act 2009 and The Prohibition of Child Marriage Act, 2006. Sometimes legislation provides for special provisions for the child as in The Factories act 1948. For the sake of convenience, the exclusive legislations for child and legislations that have special provisions for the child are categorized here as welfare legislations and protective legislations. We shall go into the details of the legal provisions for the care and development of the child.

Child Rights: Legal Intervention

3. Welfare legislations:

Special marriage Act 1954 provides for provides for the legitimacy of children of void and voidable marriages under Section 26. Section 38 provides for custody of children, education, and maintenance consistently with the wishes of children wherever possible.

The citizenship Act 1955 provides for the citizenship of the child by birth in India under Section-3.

Protection of civil rights Act 1955 protects any person from untouchability.

Hindu marriages Act 1955 prohibits marriage of a boy whose age is below 21 years and that of a girl whose age is below 18 years under Section 5. Section 26 provides for child’s choice that which is considered in case of custody (Ramaswamy, 1996,p.12)

Hindu adoption and maintenance Act 1956 provides for the maintenance of legitimate or illegitimate children by a parent under Section 20. It defines minor as one who is below 18 years of age (Ramaswamy, 1996). Section 2 defines who are considered as Hindus under this Act. Section 9 of the Act gives the details, of persons capable of giving adoption. As per Section 8, a married man, a widow, a widower, a single woman, or a divorced or a deserted woman has the capacity to adopt if they are Hindus (Bajpai, 2000).

The Hindu minority and guardianship Act 1956 states that welfare of the minor is a paramount consideration under Section 13. And under Section 6(a) natural guardian in case of a boy or unmarried girl is a father and in case of an illegitimate boy or illegitimate unmarried girl the mother

(b). Under Section 7 natural guardians or adopted son is the father. Section 13 (2) of the act states that no person shall be entitled to guardianship of the child if his/her guardianship is not meant for the welfare of the minor (Shaw, 2000). One should also note that this law “does not derogate the Guardians and Wards Act, 1890, except where provided” states Ramaswamy (1996).

Suppression of immoral traffic in women and Girls Act 1956 protects the girl child from trafficking.

The young persons (harmful publication) Act 1956 prohibits publication of harmful material to the young minds.

The probation of offenders Act 1958 provides for release of offenders on probation under Section 6 of the Act; also provides, under Section 13 for probation officers to supervise the probationers in the state governments (Ramaswamy, 1996, p.9).

The orphanages and other charitable homes Act 1960 provides for the control of the state over orphanages under Section 13. Under this act, the child is defined as one who has not completed eighteen years. Section 9 empowers the member of the board to inspect these homes. Section 24 penalizes the person who fails to comply with the provisions of the act (RamaSwamy, 1996).

The registration of Births and Deaths Act 1969 makes the child to be registered under Section 8. This act further provides for the appointment of the registrar for each local area by the state government for the purpose of registration; also for registration of newborn child found deserted in public place by the headman or other corresponding officer of the local area.

Medical Termination of Pregnancy Act 1971 insists on the consent of the woman to carry out any abortion; also states that all abortions operated after twenty weeks are illegal (Bajpai, 2003).

The family courts Act, 1984 provides for the establishment of family courts to deal with matters related to marriage and family affairs under Section 3. Andhra Pradesh is one of the states in which family courts are enforced. In A.P. this act is enforced on 2nd February 1995 (Vide Noti. No. S.O. 92 (E), dated 16.3.1995). Section 7 (g) of the act provides for suit and proceedings related to the guardianship of the person or the custody of, or access to, any minor under the jurisdiction of this Act (Shaw, 2000). Referring to the case of P. Jayalakshmi v. Ravichandran (AIR 1992 AP 190, cited Shaw, 2000), Shaw details of this act that A family court is competent enough as the civil court or district court to exercise its jurisdiction.

Infant milk substitutes, feeding bottles and infant food Act, 1992 came into force to provide for the regulation of production, supply and distribution of infant milk substitutes, feeding bottles and infant foods to promote breastfeeding and to ensure proper use of infant foods. Section 11 of the act deals with the standards for such substitute for food for infant milk, under the Prevention of Food Adulteration Act, 1954. Section 12 deals with the provision of food inspector who is appointed under Section 9 of the Prevention of Food Adulteration Act, 1954. Section 12 ascertain powers as a collection of a sample of any article of food from any person sells that article; to inspect any place or food; to seize the food that is unfit for human consumption. This Section also empowers the inspector to exercise the powers of a police officer under Section 42 of the Code of Criminal Procedure, 1973 (2 of 1974) (Shaw, 2000).

The protection of human rights Act 1993 states that the “ human rights” means the rights relating to life, liberty, equality, the dignity of the individual are guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India in its Section 2 (d). It also provides for constitution of, a National Human Rights Commission under Section 3; a State Human Rights Commission under Section 21 for protection of human rights. Section 30 provides for Human Rights Court in each district for speedy trial of offences. Apart from these provisions, infants and minors are included as subjects covered and also subjects related to adoption (List iii-concurrent List) in this act. Section 37 provides for constitution of special investigation teams in case of violation of human rights (Shaw, 2000).

Prenatal Diagnostic technique (Regulation and prevention of misuse) Act 1994 provides for the regulation of the use of prenatal diagnostic technique for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenial malformation or sex-linked disorders and for the prevention of the misuse of this technique for the purpose of prenatal sex determination leading to female foeticide (Bajpai, 2003).

Equal opportunities, protection of Right and full participation Act, 1995, in view of persons with disabilities, provides for equal treatment and social security, education, employment, development, non-discrimination (Ramaswamy, 1996).

The Right of Children to Free and Compulsory Education (RTE) Act, 2009

Child’s Right to Education:

 

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full-time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. With this, India has moved forward to a rights-based framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act.

The RTE Act provides for the:

  • Right of children to free and compulsory education till completion of elementary education in a neighbourhood school.
  • It clarifies that ‘compulsory education’ means an obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.
  • It makes provisions for a non-admitted child to be admitted to an appropriate age class.
  • It specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing free and compulsory education, and sharing of financial and other responsibilities between the Central and State Governments.
  • It lays down the norms and standards relating inter alia to Pupil-Teacher Ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours.
  • It provides for rational deployment of teachers by ensuring that the specified pupil-teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to the local authority, state legislatures and parliament, and disaster relief.
  • It provides for the appointment of appropriately trained teachers, i.e. teachers with the requisite entry and academic qualifications.
  • It prohibits (a) physical punishment and mental harassment; (b) screening procedures for admission of children; (c) capitation fee; (d) private tuition by teachers and (e) running of schools without recognition,
  • It provides for the development of curriculum in consonance with the values enshrined in the Constitution, and which would ensure the all-round development of the child, building on the child’s knowledge, potentiality and talent and making the child free of fear, trauma and anxiety through a system of child-friendly and child-centred learning.
  • As per amendment in 2012 RTE provides for “Subject to the provisions of articles 29 and 30 of the Constitution, the provisions of this Act shall apply to conferment of rights of children to free and compulsory education.”

Amendment in 2017 to RTE

In the Right of Children to Free and Compulsory Education Act, 2009, in section 23, in sub-section (2), after the proviso, the following proviso shall be inserted, namely:— “Provided further that every teacher appointed or in position as on the 31st March 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.”.

4. Protective legislations:

The factories Act 1948, states in its Section 23 no young person shall be employed on dangerous machines unless he has been fully instructed of the dangers and precautions in connection with the machine. Section 2 (CB) defines “hazardous process” means any process or activity in relation to industry specified in the First Schedule where unless special care is taken, raw materials used therein or the intermediate or finished products, by-products, wastes or effluent thereof would i) cause material impairment of health of the person engaged in or ii) result in pollution of the general environment. Section 2 (a) defines “adult” as a person who has completed his eighteenth year of age; 2 (b) defines “adolescent” as a person who has completed his fifteenth year of age but not his eighteenth year; 2 (c) defines “child” as a person who has not completed his fifteenth year of age. Section 2 (d) defines “young person” as a person who is either a child or an adolescent. Under Section 67 no child who has not completed his fourteenth year shall be allowed to work in a factory. Section 69 certifying surgeon who deals with a) the certification of fitness of a young person of his completion of his fourteenth year of age and has attained the prescribed physical standards to work; (b) with fitness of adult and to see that the young person has completed his fifteenth year and is fit for full day’s work in factory. Section 68 states that a child who has completed his fourteenth year or an adolescent shall not be allowed to work unless a) a certificate of fitness of a child is granted as per Secton69 of the Act. Section 79 (ii) deals with the annual leave with wages, for every child who has worked for 240 days or more during a calendar year, at the rate of one day for every fifteen days of work. Section 71(1) of the Act states no child be employed to work (a) for more than four and a half hours in a day and (b) during night (for the purpose of this section night means interval between 10 P.M. and 6A.M.Sub section (2) of this section allows the child to for only two shifts that do not overlap or spread over more than five hours each. Section 99 deals with the penal measure to the parent or guardian, against the double employment of children in a factory “on any day on which he has already been working in another factory”. Section 48 deals with the provision of crèches for the use of children under the age of six years in a factory wherein more than thirty women workers are employed. Section 49 deals with the employment of welfare officer and Section 115 deals with the publication of rules of the Act made by the State Government. Section 87(c) provides for the State government to make a rule, in prohibiting or employment of women, adolescents or children, to any factory when it is of the opinion that it exposes any person employed to serious risk or bodily injury, poisonings a disease.

The Minimum Wages Act, 1948 provides for “open courts”. These courts are empowered to bring the employer to the court, in case of violation of provisions of the Act regarding the payment of the child. Still, further employer can also be made to “obtain a National saving certificate for the amount of difference of wages payable to the child for the past period of employment” (Reddy S, 1997).

The plantation labour Act 1951 prohibits employment of children less than 14 years.

The Mines Act 1952 prohibits the children to work who are less than 18 years.

Merchant shipping Act 1958 prohibits the child below the age of 14 years to work in any ship unless it is school training ship or a ship in which all persons employed belong to a family (Ramaswamy, 1996).

The apprentice Act 1961 prohibits the child below the age of 14years.

The motor transport workers Act 1961 prohibit children below the age of 15 years from work.

Beedi and Cigar works (conditions of employment) Act 1966 prohibits, employment of, a child who is below 14 years; of a young person between 14 to 18 years to work from 7 pm to 6 am under Section 24 of the Act (Ramaswamy, 1996).

Shops and commercial establishment Act, 1969 defines the minimum age for the child to enter shops as 14 years.

The bonded labour system (Abolition) Act 1976 deals with the penal measure of three years imprisonment and Rs. 2000 for anyone advancing bonded debt under Section 17. Section 18 deals with the penal measure of three years imprisonment and Rs. 2000 for anyone extracting bonded labour. It empowers Mandal Revenue officer and RDO to deal with the offences.

The child labour (prohibition and regulation Act, 1986) prohibits children below the age of 14 years to work in any occupation as per Section 3 of the act. Section 5 provides for the appointment of Child Labour Technical Advisory Committee by Central Government to process the schedule of the act. Under Section 7 (4) of the act, no child is allowed to work between 7 p.m. and eight a. m. Section 14 deals with the penal measure, to the employer, that amounts for imprisonment for three months that may be extendable per one year or a fine by less than ten thousand rupees or both (Shaw, 2000).

The Prohibition of Child Marriage Act, 2006: The basic premise of the law is:

Child Marriage is an offence under this law. To make a child go through marriage is an offence. Child or minor is a person up to 18 years in the case of girls and 21 years in the case of boys. Courts can issue injunctions prohibiting solemnisation of child marriages (Section 13, PCMA 2006). Offences under the Act are cognisable and non-bailable (Section 15, PCMA 2006). Child marriage is an offence punishable with rigorous imprisonment, which may extend to 2 years, or with fine up to Rs.1 Lakh, or both. Courts can issue injunctions prohibiting solemnisation of child marriages (Section 13, PCMA 2006). Offences under the Act are cognisable and non-bailable (Section 15, PCMA 2006). Child Marriage Prohibition Officers (CMPOs) are to be appointed in every state to prevent child marriages, ensure the protection of the victims as well as prosecution of the offenders.

Stakeholders Identified by the Law:

  • Child marriage prohibition officer
  • Police
  • District Magistrate
  • Panchayat members
  • Teachers

Any person can report an incidence of child marriage before or after it has been solemnised. An immediate report needs to be made to The Police or The Child Marriage Prohibition Officer or such persons as may be appointed to assist him/her-

  • First Class Judicial Magistrate or Metropolitan Magistrate
  • Child Welfare Committee or a member of the Child Welfare Committee set up under the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006
  • ChildLine
  • District Magistrate

The Juvenile Justice (Care and Protection of Children) Act, 2015

This act has come into force from today and repealed the earlier Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice (Care and Protection of Children) Bill, 2015 was passed by Lok Sabha on 7th May 2015; was passed by Rajya Sabha on 22nd December 2015 and received Presidential assent on 31st December 2015.

The Juvenile Justice (Care and Protection of Children) Act, 2015 provides for strengthened provisions for both children in need of care and protection and children in conflict with the law. Some of the key provisions include: change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”; inclusion of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children; clarity in powers, function and responsibilities of Juvenile Justice Board (JJB) and Child Welfare Committee (CWC); clear timelines for inquiry by Juvenile Justice Board (JJB); special provisions for heinous offences committed by children above the age of sixteen year; separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children; inclusion of new offences committed against children; and mandatory registration of Child Care Institutions.

Under Section 15, special provisions have been made to tackle child offenders committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous offences by such children to a Children’s Court (Court of Session) after conducting a preliminary assessment. The provisions provide for placing children in a ‘place of safety’ both during and after the trial till they attain the age of 21 years after which an evaluation of the child shall be conducted by the Children’s Court. After the evaluation, the child is either released on probation, and if the child is not reformed, then the child will be sent to a jail for remaining term. The law will act as a deterrent for child offenders committing heinous offences such as rape and murder and will protect the rights of victim.

To streamline adoption procedures for the orphan, abandoned and surrendered children, the existing Central Adoption Resource Authority (CARA) is given the status of a statutory body to enable it to perform its function more effectively. A separate chapter (VIII) on Adoption provides for detailed provisions relating to adoption and punishments for not complying with the laid down procedure. Processes have been streamlined with timelines for both in-country and inter-country adoption including declaring a child legally free for adoption.

Several rehabilitation and social reintegration measures have been provided for children in conflict with the law and those in need of care and protection. Under the institutional care, children are provided with various services including education, health, nutrition, de-addiction, treatment of diseases, vocational training, skill development, life skills education, counselling, etc. to help them assume a constructive role in the society. The variety of non-institutional options include sponsorship and foster care including group foster care for placing children in a family environment which is other than child’s biological family, which is to be selected, qualified, approved and supervised for providing care to children.

Several new offences committed against children who are so far not adequately covered under any other law are included in the Act. These include sale and procurement of children for any purpose including illegal adoption, corporal punishment in child care institutions, use of a child by militant groups, offences against disabled children and, kidnapping and abduction of children.

All childcare institutions, whether run by State Government or by voluntary or non-governmental organisations, which are meant, either wholly or partially for housing children, regardless of whether they receive grants from the Government, are to be mandatorily registered under the Act within six months from the date of commencement of the Act. The stringent penalty is provided in the law in case of non-compliance.

Recent changes in earlier legislations for child’s welfare and protection:

India’s law on child labour has been amended to ensure that (i) education of children between the age group of 6 – 14 years is not compromised and (ii) the law is brought in line with the Right to Free and Compulsory Education Act, 2009 (“Right to Education Act”). As a result of the enactment of the Child Labour (Prohibition and Regulation) Amendment Act, 2016 (“2016 Amendment Act”)

The Child Labour (Prohibition and Regulation) Act, 1986 is now re-titled as the ‘Child and Adolescent Labour (Prohibition and Regulation) Act, 1986’ (“Child Labour Act”), in order to reflect its expanded scope and coverage.

India is a signatory to the ‘United Nations Convention on the Rights of the Child’ which aims at protecting the interests and rights of children. Although the International Labor Organization has enacted Conventions such as the Minimum Age Convention, 1973 and Worst Forms of Child Labour Convention, 1999 with the objective of eliminating child labour, India has not yet ratified the aforementioned convention.

The important revisions to the Child Labour Act as a result of the 2016 Amendment Act are as follows:

  1. Definition of ‘child’: The 2016 Amended Act has brought the law in sync with the Right to Education Act by amending the definition of ‘child’ to mean a person who has not completed 14 years or such age as specified under the Right to Education Act, whichever is higher. This definition, however, continues to remain different from the definition of ‘child’ as per the Factories Act, 1948.
  2. Definition of ‘adolescent’ introduced: ‘Adolescent’ has been defined to mean a person who has completed his 14th year but not completed his 18th year. This definition is however slightly different from the definition of ‘adolescent’ as per the Factories Act, 1948.
  3. Prohibition of child labour: A complete ban has been imposed on employing children, except in the following two cases:
    1. Children are allowed to help in his/her family or family enterprise(s) provided that (i) such enterprise is not involved in hazardous processes and (ii) the work is carried out after school hours or during vacations.
    2. Children are allowed to work in the audio-visual entertainment industry including advertisement, films, television serials or any such other entertainment or sports activities except circus subject to (i) compliance with prescribed conditions and adoption of safety measures, and (ii) the work does not affect the school education of the child.
  4. Prohibition on employment of adolescents: New provision prohibiting employment of adolescents in hazardous occupations and processes introduced.
  5. Child labour made a cognizable offence: Any offence committed by an employer which is punishable under the Child Labour Act has been made a cognizable offence. Accordingly, the authorities can file a first information report and commence investigations into the offence without a court order and can arrest without a warrant.
  6. Punishments for contravention enhanced: While the punishment for employers has been significantly enhanced, the punishment for parents/guardians has been relaxed.

Summary:

We must note that a child is not defined with a uniform definition. India is a signatory to the ‘United Nations Convention on the Rights of the Child’ which aims at protecting the best interests and rights of children and defines as one who has not completed his 18th year, but the majority may be attained earlier. It is a dilemma because to provide the rights of the child is one thing through welfare legislations. And to protect the child is another aspect. But at times society needs protection even from the delinquent children who were not brought up properly based on social and economic situations. Added to these reasons, we find today even a healthy and a normal child gets influenced by peer groups and print and electronic media that affect the adolescent minds which are very vulnerable to get affected. Thus Juvenile Justice Act (care and protection) Act, 2015 came into force with its wider provisions for reintegration and rehabilitation by re-enacting the earlier legislation the Juvenile Justice (Care and Protection) Act 2000. For, recently nation witnessed a sixteen-year-old boy involved in the Delhi Gang rape case, and the public demanded a deterrent punishment to him along with adults-accused. We have legislations to prohibit child labour, but implementation needs public sensitivity and also poverty elimination steps. Positively speaking in India, there are many protective legislations and welfare legislations for child’s comprehensive development. But, the existing legal safeguards and amended laws alone would not suffice for the welfare and development of the child.

Hence, not only uniform definition but also adequate measures to protect children from becoming delinquent are essential. A child needs to grow in a healthy environment. A society which allows an adult to have whatever he wants – liquor and all sorts of negative entrainment but asks the child to keep his eyes shut cannot be called a developing society. To get good results out of the objectives of these legislations and to bring up good children as tomorrow’s good citizenry we need a holistic and a conscious approach. Parents, Civil society, Lawmakers, Lawyers, Teachers, Police, all service centres and children – we are all stakeholders to join, to provide and to protect our children.

 

We are all Stakeholders for child rights

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Reference

  1. Bajpai, Asha (2003): Child Rights In India Law, Policy, and Practice, New Delhi: Oxford university Press.
  2. Ramaswamy Gita(1996), Child and the law, Andhra Pradesh Judicial Academy, 1996.
  3. Acharya, N.K. (2014), The Constitution of India, Hyderabad: Asia Law Office
  4. Shaw, SP, (2000) Encyclopedia of laws of the child in India, Allahabad: Alia Law Agency.