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The concept of children as a separate legal group requiring was first conceived internationally in the starting leg of the nineteenth century. It emerged as an aftermath of the Industrial Revolution when a consensus emerged about the lack of legal measures to protect children against economic exploitation, mainly in the form of child labour.
In the Indian context, the history of legislation exclusively related to child rights protection goes as far back as the colonial period with the passing of the Anti-Child Marriage Act of 1929. Thereafter series legislation was passed in the course of time as a response to the wide variety of child-related issues that emerged in the post-independence Indian society. This legal framework so emerged is still evolving to meet with the changing social and cultural scenarios.
The legal definition of ‘Child’.
Indian Constitution does not provide any definition to the term child, however, subsequent child protection legislation has tried to comprehensively solve this lacuna. Which have defined a child as anyone under an age of 18 as in the case of the Juvenile Justice (Care and protection of Children Act)2016 and the Protection of Children from Sexual Offences Act, 2012. According to Article 1 of the United Nations Convention on the Rights of Child 1989,
‘a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.’
Nevertheless, there is no universally applicable definition as it tends to change with the purpose of the legislation, hence according to the Indian Majority Act, age limit is under 18 while under the Child Labour Act (Prohibitions and Regulations )1986 a child is anyone who is yet to attain the age of 14, While it is again 18 under Juvenile Justice (Care and Protection).
Children as separate legal entities.
The necessity to recognize children as a separate legal category of socially disadvantaged could be understood from the fact the level of the agency they could exercise is severely limited, they are still under the protection of a guardian and are yet to enjoy their civil and political rights in their fullest.
Therefore, it is evident that their capacity to approach the judiciary or any other enforcement body by their own is likewise restricted. Though this will not be an issue in the normal course of events when they are under the direct care and protection of parents.
Problems emerge when the protectors turn predators. And lately incidents of a similar nature had been reported from the length and breadth of the country thus inviting our attention to develop adequate formal legal framework not to leave child protection solely on the hands of guardians.
This is also accentuated by the fact that not all children will be fortunate enough to have parents as in the case of an orphan, or he/she could be a loner, a destitute, a homeless, a bonded labourer, a street child in all these cases there are chances for exacerbated exploitation of the generally defenceless child.
In the Indian context, the issues related to child protection has their origin in much darker and complex social problems like cultural norms and conventions, extreme poverty and exploitation of certain sections, historical marginalization and inhumane treatment meted out to those in the lower rungs of the society coupled with a general lack of awareness regarding children’s right.
For example, take the case of child marriage, though pronounced illegal by the law it is still practised in the guise of upholding customs and tradition. Similarly, when it comes to efforts ensuring universal education to all children, problems arise in the form long-held conventions which deny girl child a chance to got to school or from abject poverty which will compel the family to push their members into child labour.
Apart from the above-mentioned other issues relating to child rights in India are human trafficking, malnutrition, sexual abuse and child pornography and related cyber issues. Each of these issues was tackled by developing issue-specific legislation and therefore we have a large corpus of separate legislation which exclusively deal with any one of such issues or an aspect of the issue.
Education everywhere is now recognized as the single most important tool for social transformation. As is common knowledge educational formation must begin from early childhood for it to be effective .Being home to one of the largest population of children India’s responsibility to ensure primary education to this significant majority is unmistakably enormous.
This sense of obligation finds reference first in the Directive Principle of State policy which stated that “The state shall endeavour to provide within a period of 10 years from the commencement of this constitution for free and compulsory education for all children under the age of 14”.
In an effort to realize this constitutional vision the Kothari Commission was instituted which recommended for allocation of fund worth 6% of the GNP which was further carried forward in the National Policy On Education 1986.
The Right to Education Act,2009
IN a momentous judgement in the Unnikrishnan, J.P vs State of Andhra Pradesh (1) the court held that Part 3 and Part 4 of India is not only supplementing and complementing each other but also is interrelated to each other.
This judgement resulted in the Right to Free and Compulsory Education attaining the status of Fundamental rights. Subsequently, the parliament enacted the 86 the constitutional amendment in 2002, leading to the passage of the Right of Children to free and Compulsory Education Act also known as Education Act of 2009.
The Act came into force on 1st April 2010 except in the state of Jammu and Kashmir. The promulgation was aimed at universal access of elementary education for children under the age of 14 by ensuring maximum attendance at schools, a rapid increase in enrolment rates and the resultant increase in literacy. Following are the characteristic features of the RTE Act.
- Section 8 mandates free and compulsory education to all children between the age group of 6 to 14
- Children not admitted or who have not enrolled is brought under a special provision given under section 4
- Section 8 has provisions regarding school infrastructure including teaching staff and learning materials, good quality education, easy accessibility to school by increased proximity, and training facility to teachers.
- Under Section 16 no child shall be held back, expelled, or required to pass a board exam until the completion of elementary education
- Section 17 abolishes corporal punishment to children.
- Section 25 specifies the pupil-teacher ratio whereas Section 28 prevents teachers from engaging in private tuition and Section 29 delineates the curriculum and evaluation procedure for elementary education.
Child labour is a very serious issue that stems from the inherent economic inequalities which result in the marginalization of a particular section of the society. In a developing country like India where a large chunk of its population lies Below Poverty Line child labour as a persistent phenomenon attains monstrous proportion.
Apart from being illegal and unjust by itself as it subject children under the age of 14 to backbreaking and hazardous jobs, it is also totally unfair considering the fact that child labour robs the child of his/her right to enjoy the carefree childhood, deny them access to proper education thus seriously denting the future prospects of a better livelihood besides leaving them with an underdeveloped and deformed personality. Thus we can definitely say child Labour is one of the worst social evil. Thus several attempts were made to curb the problem through a legal and constitutional framework which include ;
The Factories Act of 1948 which prohibits the employment of children under the age of 14 in factories. Also, a child who belongs to the allowed age group of above 14 is protected from work during night (10 pm to 6 pm) and from working not more than four and a half hours a day.
There are also restrictions regarding the employment of children in dangerous conditions. Besides the employer is required to maintain a special register and the law mandates that rest, shelters, canteens and all such necessary infrastructure are made available to the child labourer.
The Minimum Wages Act,1948 directs the state government to fix the minimum rates of wages, minimum piece of the rate of wages, guaranteed time rates of wages for different occupations and localities of the class of work for adults, adolescents, children and apprentice. The Act was aimed primarily at bringing the unorganized sector into the garb of law.
The Child Labour (Regulation and Prohibition Act),1986
The legislation was introduced to compensate for the serious dearth of a comprehensive law which could act as single most efficient legal apparatus against child labour. It corrected several inconsistencies that existed in previous legislation relating to the minimum age of employment, working hours, medical examination, minimum wages and penalties for offences.
The Act was promulgated on 23 December 1986, Under Section 2(ii) it prohibits and regulates the child labour, it also classifies occupations into two categories; hazardous and non-hazardous.
The Act consists of 4 parts and schedule. The first part deals with preliminary definitions. The second part is about the prohibition of child labour in certain occupation and processes. The third part regulates the employment of children in those establishments where none of the above-listed occupations or processes is carried on. And the final part deals with all the related aspects including a penalty, the procedure relating to offences and appointment of inspectors to monitor the functioning of these establishments in accordance with the law.
Section 7 fixes 6 hours as the maximum time limit child labour be put to work, included within this 6 hours are the time spent for interval and in waiting for the work. Section 7(4) prohibits night work from 7 p.m to 8 p.m and Section 7(5) prevents double employment in any establishments. Section 14 deals with penalties for the violation of any of the provisions of the Act.
The contravention of the Act is punishable with imprisonment for a period not less than 3 months and may extend up to 1 year with a fine amount not less than 10,000 and may extend up to Rs 20,000 or both. In addition, those who are found to have guilty under Section 3 or commit like offence afterwards are to be awarded a jail term not less than 6 months which may also extend to 2 years.
Legislation for the Prevention of Sexual Abuse of children.
Prior to the promulgation of POCSO Act, sexual abuses against children came under the provisions Section 375,354 and 377 0f the Indian Penal Code. However, the provisions of the IPC were found inadequate in various aspects in effective prevention of sexual offences against children. It lacked provisions for the protection of the male child, fell short of providing an accurate definition of modesty and unnatural offences, besides carrying weak penalties.
Hence in order to amend such inconsistencies, the Prevention of Children against Sexual Offences Act was introduced.
Protection of Children Against Sexual Offences Act (POCSO act),2012
The Act was established to protect children from offences like sexual abuse, sexual harassment and pornography. The Act ensured the setting up of a child-friendly system for trial. The Act defines a child as anyone under the age of 18 during the time the offence is committed.
The Act contains safeguards to prevent revictimization at the hands of the judicial system. The Act was awarded presidential assent on 19 June 2012.
The Act gives Definitions of different types of sexual abuse both penetrative and non-penetrative. The Act has provisions for considering certain sexual offences as aggravated if it is committed against a mentally ill child or if it is committed by a member of the armed forces or security forces or a public servant, or a family member or any other person in a position of trust or authority of the child.
Another novel provision is that Act makes it mandatory for anyone who is aware that such an offence is committed to reporting it to the relevant authorities. And those who fail to do so can be punished with six month’s imprisonment or fine.
It further provides for the recording of the child’s statement within 30 days and also mandates that the special court proceedings should be recorded on camera. It further stipulates that the trial is to take place only in the presence of the child’s parents.
Juvenile Justice Act (Care and Protection),2000
JJ Act is the governing legislation with respect to children in conflict -with -law and in general, provides special provisions for the care and protection children in order to cater to their special requirements for development and growth. The law moots a child-friendly approach in adjudication and subsequent rehabilitation to the children-in-conflict with-law.
The Act was amended on 7 May 2015. After the amendment, it becomes possible to those in the age group of between 16-18 years, who have committed heinous crimes to be tried as adults provided the Juvenile Justice Board approves the same.
In addition, the bill also introduced foster care in India.
The historically unacceptable practice of child marriage was first made illegal by 1929, Child Marriage Restraints Act which was introduced during colonial time. The Act was replaced by the Prohibition of Child Marriage Act of 2006 which came into force a year later.
The Prohibition of Child Marriage Act,2006
The new Act has provisions to prohibit child marriage, protect and provide relief to the victim and enhance punishment for those who abet, promote and solemnize child marriage. The Act provides for the appointment of a Child Marriage Prohibition Officer. Another novel addition is that it criminalizes the act of marital rape by the husband of the minor.
The Special laws which are discussed above are deeply rooted in the peculiar character of the Indian social system and are devised as effective restraints towards the various degenerative aspects stemming from such society specific aspects.
Besides these laws, there is a range of different legislations covering a large multitude of areas such as adoption, trafficking, gender discrimination etc. which are specially designed for the protection from and prevention of crimes against children.
Thus, legislation wise the legal system is totally prepared to handle offences against children, however, it is in the sphere of proper enforcement that we seriously lag behind leading to repeated occurrence of such crimes.
Weiner, Myron (1991), The Child and State in India
Rodgers, Gerry, Standing, Guy. (1981). Child. Work. Poverty and Underdevelopment
WWW.legalservice.com (Juvenile Justice Act)
- AIR 1993 SC 2178