LAWS RELATED TO CHILDREN- CURRENT SCENARIO IN INDIA by-Aarjav Jain
Hors d’ oeuvres have always a pathetic interest of me: they remind me of one’ childhood that one goes through, wondering what the next course is going to be like – and during the rest of the menu one wishes one had eaten, more of the Hors d’oeuvres.2
-Saki Childhood is regarded as one of the exuberance experience of one’s life. It is an epoch of blissful memories and a deluged experience, but the harsh reality is that this is not experienced by every single child. There are some parts of our country where the “Right to Life” the right guaranteed by The Constitution of India is not provided to various children. Wherein the meaning of “Right to Life” not only endeavors the existence of a person but also provides for a complacent quality of life. Right to Life means providing an eminent opportunity to develop one’s personality and to reach to the culmination of potentiality. This Right implies a reasonable standard of comfort, decency3 and contentment.
Videlicet, it means the right of a person to live reasonably as a member of a civilized society. And in case of children providing them with comfort living, their Right to Education, providing opportunities for education along with proper working conditions which includes the strict implementation of rules, regulations and laws regarding Child Labour.
KEYWORDS: Child Labour, Culmination, Deluged, Eminent, Epoch
According to World Health Organization, Child Abuse or Child Maltreatment includes any kind of Abuse and neglect which can be Physical, mental, emotional, and psychological. Which can further result in potential and indubitable harm to the health of the child, the development, progress including succumb and trust issues in context of future relationships.4 But before looking into the rules or laws for the protection of children, according to “ the prohibitions of child marriage act, 2006” the term “child” as a male who is below the age of 21 years and female who Is below the age of 18 years. Now let us look into the problem of child abuse and it’s origin.
We have seen children working in the odd jobs during strange hours and when they are asked about it, how many of them are willing to give up that job for the sake of their education and studies. Because of the increment in population and sudden escalation in poverty, the number of children in schools is in dwindling. The families who are struggling for three times meal are willing to send their children for jobs for of earning money. And the children are also willing to do the jobs because they are not captivated towards the ideas of studying. The truth is that all of these problems are somewhere connected with the increase in the economic gap. Our country has been in a constant race of developing but because of the sudden aggravations and changes in the social and economic conditions, the children are lagging behind and they may not be able to cope up with the changing conditions. According to a report around 53% of the children in India face abuse and do not report it because they are not aware of the rights that are granted to them by the Constitution of India.
Child Abuse is so common that we as citizens of India have intentionally and unintentionally ignored it. Since many years Indian Government has not only focused on the development of children but has also signed up for various treaties at international level for the progress of the nation. These points may not be the whole scenario but it might give people some idea and make them aware.
- UNCRC (CONVENTION ON RIGHTS OF CHILDREN) ADOPTED BY INDIA The United Nations Convention on the Rights of Children is a Human Right Treaty which ensures all the right of children namely, political, civil, political, economic and social health, especially to those children who are Although, India commissioned The United Nations Convention on The Rights of Children on 11th of December 1992, taking into consideration certain principles and regulations because, in India Child Labor is although banned but there is no strict application and implementation of such rules, and it’s application is only done by those industries which is said to be “Hazardous” and because of the constant efforts of organisation ‘Save The Children’ regarding amendment of the certain parts of the laws under the Child Labour Prohibition and Regulation Act (CLPRA) to establish it parallel to The Right to Education for the betterment of the children.
1.2 MID-DAY MEAL SCHEME
One of the such step towards the development of these children was the introduction of The Mid-Day Meal Scheme by the Ministry of Human Resource Development and by the Department of The School Education and Literacy (Government of India) for the children who were in the age group of 6-14years because these children are in the peak of growth and adolescence. One of the major impacts it had was the evident increase in the attendance of children, keeping up with the basic nutritional requirements and participation of children. By the Data provided by the Government around 11.9 crore students are enrolled and about 25.95 lakh cook-cum-helpers are working under this scheme and along with that 8.45 kitchen-cum-stores are also opened under this scheme. So it is fair to say that, this scheme has not only herculean in attracting students but also proved beneficial in providing employment to people.
The case of, M.C. Mehta v. State of Tamil Nadu5 was considered to be a long-awaited landmark judgment which widened the arising situation of child labour. This judgment not only spur the awakening of the people regarding the topic but also interpreted the connection of poverty with child labour along with that it specified the role of the Government in the formation of the rules, regulation and laws regarding the aforesaid topic and also laid certain guidelines:
- Compulsory education for the children who are employed in various factories, mines and other industries and organize their timings for their education either it’s secondary, vocational or higher education
- Apart from providing them with educational facilities, periodic and stable health check-ups
- Providing them with proper nourished food
- To strictly follow up with the laid down principles and all the directives
In the Indian Constitution there is a provision regarding the abolition of child labour. According to Article 24 of the Constitution, no child who is below the age of 14 years shall be employed in a factory, mine or in a “Hazardous” place. This Article is also supported by the Directive Principles of State Policy, mentioned in Article 39(e) and Article 39(f), safeguarding the development, health and strength of children who are below the age of Fourteen years. There are various cases which incessantly altered and widened the scope of Article 24, one of which is People’s Union for Democratic Rights v. Union of India,6 the Supreme Court held that Construction of a building is also a hazardous employment where the children below the age of 14 years should not be allowed to work so the constraints specified in Article 24 could be undoubtedly enforced whether it’s against government or a private individual. Accordingly, Parliament on 26th December, 1986 enacted the Child labour (Prohibition and Regulation) Act, 1986 after which various other enactment were promulgated, e.g., the Employment of Children Act,1938; the Children (Pledging of Labour) Act, 1933; the Indian Factories Act, 1948; the Mines Act , 1952; the Merchant Shipping Act, 1958; the Motor Transport Workers Act , 1951; the Plantation Labour Act, 1951; the Bidi and Cigar Workers ( Conditions of Employment) Act, 1966.
The number of child labour cases is rapidly increasing in India like in the state of Odissa the number of violations is approximately 4,517 which is actually 42% of the total number of violations in India, odissa is followed by the state of Uttar Pradesh with nearly 1,416 cases, after which is Telangana with 747 number of violations and the state of Punjab and Gujarat with 898 and 422 number of violations respectively7.
3. RIGHT TO EDUCATION
Another important legislation for children is the Article 21 A of the Indian Constitution which is Right to Education; it has a very long and a chequered history because of the subsequent alterations and amendments that were done in it. According to Article 21(A) the state shall provide free and compulsory education to children who are between 6-14 years of age along with that the state may make other laws in order to determine it. However, this fundamental right was proposed under the Constitution 86th (Amendment) Act, 2002, this amendment also proposed for a follow-up legislation which further resulted in Right to Education Bill of 2008 and finally Right to Education Act of 2009. In the case of Bandhua Mukti Mohan v. Union of India,8 and in Mohini Jain v. State of Karnataka,9 while analyzing the scope of “Right to Life” guaranteed by the Constitution also included right for “Educational Facilities” in it.10 Right to Education Act has played a crucial role in reducing the Number of Out of School Children aged between 6 to 14 years and also beefed up the infrastructure of the Government schools in India. It has also been instrumental in increasing the Number of Girls in school from 6% to 9% according to the surveys. After analyzing the statistical data, the conclusion is, even after the implementation of various policies and rules the number of population of girls in the schools in contrast to the population of boys in school is very less. There are number of reasons for the less number of literacy rate in girls specifically in rural areas than in the urban areas because the people are not interested in educating girls after their primary education, according to them they have limited resources to spend on the education on all the children so they prefer spending them on the education of boys and prefer their girls to stay at home and learn the household chores. The another reason for dropping of schools by the girls are the less awareness of menstrual health in India and specifically in the rural and the backward areas. Menstruation is considered as a disease and because of the less awareness and lack of products like menstrual cups and menstrual pads and using of old clothes, so the girls are forced to drop out of the schools. The number of girls who have completed higher education in India is comparatively very less because the schools for the higher education are far away from their own villages and residential areas, the families do not allow the girls to go far just to complete their higher education. The Government should also plan in constructing and establishing higher education schools in the backward areas so the girls do not have to leave in terms of completing their education. 11
4.CHILD TRAFFICKING ( FORM OF A CHILD LABOUR)
In the year 2018, the Indian Government made quite a few changes which advanced the efforts to eliminate the worst forms of Child Labour under which a new bill was drafted which is Trafficking of Persons (Prevent, Protection and Rehabilitation) Bill, which formulates law for the well-being of the victims of the Trafficking and other worst activities. This bill further provides for the establishment of different bodies for the investigation at various state and national level for the acts like trafficking and to setup various centers for the victims. Although there are several bills and laws which deal with such activities such as the Immoral Traffic (Prevention) Act, 1986.
5.CHILD MARRIAGES IN INDIA ( FORM OF CHILD ABUSE)
Prohibition of Child Marriage Act, 2006 focuses on preventing Child marriages with strict implementation and rigid punishments for two years and or fine of rupees 1 lakh. Under this act, there are certain provisions which are responsible for the maintenance of the girl child so if the husband is “major” he is responsible for providing maintenance and if he is a minor then his parents are responsible for the same. The most important aspect of this act is that, the status of the child marriage is voidable but with the options of the parties itself. But it is considered that any marriage which is solemnized by the contravention of clause iii of Section 7 of Hindu Marriage Act, 1955 is neither void nor voidable. The only fact here is that the persons concerned would be liable for the same under Section 18 of the Hindu Marriage Act, 1955 which consists of “the punishments for contravention of certain other conditions for Hindu Marriage”. Another important aspect of this act is that of the consent of either party is taken by fraud, misrepresentation of the fact, be deceit or under pressure and for any other illegal reasons it would be considered as void. Along with that this act also provides for the appointment of an officer to keep a check on the matter and spread awareness for the same.
5.1 MENTAL ABUSE
In India, Patriarchy has been existed since ages and there is no end to it any time soon. How under a certain influence of the Head of the Family, the children are forced to do certain acts or are made to choose between their careers. This is the reason some orthodox and rigid people are not ready to adopt children because they are not sure of transferring their own property to the adopted children, the succession and inheritance of the property has always been linked to a an individual’s own offspring’s rather than transferring it to the adopted children. Many children across India have faced abused from their families and people justify that by saying that it is for their own good, being beaten up or being rigid with the children might force them to perform the acts perfectly but this will definitely affect them mentally. However, according to Article 39 (f) says that, that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that the children and the youth of the nation are protected against any kind of exploitation and moral dereliction.12
5.2 CHILD BEGGING
In our daily routine while going out many us have seen beggars with their children roaming on the streets or persons requesting us to buy things like balloons, handmade gifts etc. the tough thing here is to understand these people, because some of these children are neither interested in joining schools or basically changing the course of their lives. These children are so unaware about their rights and the facilities they might get if they are open towards new things. One of the provision regarding the abolition of the act of begging is the Bombay Prevention of Begging Act, 1959 but after the High Court Bench that consisted the Acting Chief Justice Gita Mittal and Justice C Hari Shankar, were of the opinion that some of the provisions and its legal complexity cannot corroborate the constitutional scrutiny as it contradicts with provisions of the Article 14 that contains Equality before law and Article 21 which says Right to Life and Personal Liberty, therefore, some of the provisions of the said act were declared as unconstitutional but after the amendment of 1960 this act was extended to Delhi by the centre Government after which the act of begging in Delhi was made a Criminal offence.13
6. JUVENILE PROTECTION (AN URGENT NEED)
One of the most important act enacted by the Government of India is the Juvenile Justice (Care and Protection of Children) Act, 2015 which repealed the already existing law Juvenile justice ( Care, Protection of Children) Act, 2000 because there was a dire need to amend and to develop a better and more efficient juvenile system to control the rate of crimes in India that are being committed by the youth. However, before establishing any law for the crimes that are committed by the children the thing that should be kept in the mind is that the treatment with children should be very much different than with the adults because in the case of children it is very much important to understand them mentally and emotionally and to give them room in order to develop them and to reform them. Therefore, the juvenile system should be established for the betterment of these children and to make sure that they are not treated as a criminal but should give them hope to change for their own good. Because many of these children who commit crimes are raised up in worst situations, or raised by offenders so they might not be able to differentiate that what is right for them and what is not because they have a different childhood or were raised in worst domestic abuse houses and what they have seen in their accessed on 2 September, 2020 childhood haunts them and they feel that what they have seen is the right thing to do. We know how important is it for children to be raised in better and good families but some of these children are already in distress and are traumatized because they have been dealing with very difficult situations, it may be possible they were exploited, tortured, neglected or might not have parents to look at them and may be they were a part of trafficking or were mentally ill. These children are far more sensitive and prone to do crimes because that is exactly what they have been through in their short lifespan. An environment in which a child is being raised in very important because they adapt and grow in these environment and if they were raised in environment which was not beneficial and harm them in any way, they are more likely to do serious offences. Another important aspect is that , it is seen that if children are treated in the same manner as adult offenders are treated they are further victimized by that system, so it is really important to develop an efficient juvenile system in India.14
However, there is a constant rise in the crimes committed by the children and it is therefore, a very important issue. But, the juvenile system is also based on the degree of crime that is committed by the children so the act has further segregated the crimes in petty, serious and heinous offences. So, if a child who has committed a heinous offence and is above the age of 16 may be treated as an adult but taking into consideration its degree, mental capacity and physical capacity. 15
The rising rates of juvenile misbehavior and crime committed by children is a very important issue even today and must be given more focus. Even though the Government has formulated various juvenile laws but there is no strict and serious implementation of these laws which further hinders the growth and reformation of these children.
7. WELFARE SERVICES IN INDIA AND ITS IMPACT:
Even in the early times the welfare of the children was considered as an early issue therefore, in the west the welfare services for children have been established for quite a long time now. However, this concept of welfare services and adoption agencies is at an initial stage in India. The development of a child depends upon the family he or she is raised in, institutions like school and family plays a crucial role in the Child’s’ very existence. So one of the most important centrally sponsored scheme by the Government of India is The Integrated Child Development Scheme (ICDS). That primarily focuses on the development and care of the Children. The main aim of this scheme is to focus on the psychological, physical and social development of a child and along with that providing them with proper nutritious food to take care of the health of the children who are below the age of six years and further to reduce the mortality rate among the infants, malnutrition, dropping out of the children from the schools and guiding the mothers so that they can take care of their children. This scheme is also supported by the many foreign agencies such as United Nations Children’s Fund (UNICEF), The United States Agency for International Development (USAID), Department for International Development (DFID)and NGO’s like CARE India which are providing services such as technical supports, effectiveness, implementations and other supports as the development partners of the associations. Due to which there is a major change in the effective implementation of the ICDS scheme among the various parts of India by increasing the growth of the other projects such as Anganwadi Workers and CDPO’s which are organized at various district and State levels.16Apart from the formulation of laws the Government should also focus on reforming the education system for the development of all children. Special programs should be set up for especially abled children and various courses should be established for them too. The schools should make provisions and provide facilities for specially abled children as well. The children should not only focus on the education but also the co-curricular activities for their all-round development. The government should start the scholarship programs for children with weak financial background or the government can also set up easy employment opportunities for those children whose parents cannot afford education for them. So we can say that there are many laws which are being taken by the Indian Government for the all round development and protection of children.
8. CONCLUSION AND SUGGESTIONS:
- The Indian Government has formed various laws for the protection as well as development of the children; the only thing that is to be reformed now, is the strict implementations of these legislations by the other Institutions of the society. The schools and families should focus on making children aware of the rights which are essential for their better up-bringing and development so that they can build themselves a better
- Apart from making laws and implementing them the Government should also focus on reforming the Education Policies and inserting of the subjects which will educate the children regarding the other laws, right and regulations which are in their
- On the other hand, the Government or non-profit organizations and the NGO’s should focus on making aware those sections of the society which are underprivileged and require more information regarding the matter.
- Another important factor the Government of India, should focus here is giving employment opportunities for those children whose parents cannot afford the education of their children such as, evening classes should be organized by various institutions but those jobs should be for children above the age of 14 years and should not be
- Moreover, scholarship policies or free education policies should also be formulated and implemented strictly. Though it is an important issue for today, but we have to accept the fact, that changes don’t occur overnight and should give our bit for the development of our country. Presently India is a developing country and many steps are also being taken for the Development of children but we really need to accept the fact that the social and economic conditions of India is very different from those of the other countries so we cannot expect to see major developments in this regard but gradually there will be no complaints and issues for the children and soon the country will be a safe place for every child who wants
1 Student of Himachal Pradesh National Law University, Shimla
2 Meera Malhotra Orient Book of Quotations, (2003)
3 Narendra Kumar, Constitutional Law of India, Kumar (See. K.T. Shah’s “Notes on Fundamental Rights”, B. Shiva Rao, “The Framing of India’s Constitution”, Select Documents, II, 1967,41.)
4 < www.who.int/news-room/fact-sheets/detail/child-maltreatment > accessed on 1September 2020.
5 < https://hrln.org/litigation/mc-mehta-vs-state-of-tamil-nadu-and-ors > accessed on 1 September 2020.
6 AIR (1997) SC 2218
7 < https://www.indiatoday.in/india/story/child-labour-in-india-violators-go-scot-free-as-only-25-cases-reach- conviction-1547264-2019-06-12> accessed on 1 September,2020.
8 AIR (1984) SC 802.
9 AIR (1992) SC 1858
10 Narendra Kumar Constitution Law of India, ,(8th Edition, Allahabad Law Agency, 2018)
11 < www.ukessays.com/essays/education/the-right-to-education-as-a-human-right-education-essay.php > accessed on 2 September 2020
12 Substituted by the Constitution (42nd Amendment ) Act, 1976 for the old clause (f).
14< https://lexlife.in/2020/01/16/analysis-the-juvenile-justice-care-and-protection-of-children-act-2015 > accessed on 2 September,2020.
15< https://thelawbrigade.com/criminal-law/juvenile-justice-in-india > accessed on 2 September 2020.
16< https://www.insightsonindia.com/wp-content/uploads/2013/09/child-welfare-policies-and-programs-in- india.pdf > accessed on 2 Sptember,2020.