What Are Children's Rights in India?

Children constitute over 400 million of the one billion plus population of India. It has the highest number of children in the world. More than one third of the country’s population is below 18 years. Approximately 40% of the total population i.e. around 440 million is children. India shows some of the dazzling realities of children. India has the highest rate of neo-natal deaths (around 35%) in the world. It constitutes 40% of child malnutrition in developing world. It has 50% of the child mortality. It has Reducing number of girls in 0-6 age group- for every 1000 boys 927 girls. It has 46% children from ST and 38% SC out of school. It has high number of school dropout particularly among girls. It has high rate of child marriage. Its 37% of literate & 51% of illiterate girls are married below 18 years of age. Its 10% of literate and 15% of illiterate boys are married below 18. It has large number of child laborers. It has large number of sexually abused children. [1]

The word ‘Child’ has been used in various legislation as a term denoting relationship, as a term indicating capacity, and a term of special protection. The legal conception of a child has thus tended to vary depending upon the purpose. According to Article 1 of the United Nations

Convention on the Rights of the Child 1989, ‘a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier’.

Childhood is universal transcend all nationalities and know no artificial boundaries. It is indeed an important factor in shaping the future of the nation if childhood can be endowed with the minimum requisite for healthy growth and development. 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. [2] These inalienable rights are guaranteed to all human beings including children. Children should be afforded the necessary protection and assistance for the harmonious development of their personality. [3]

Thus it is imperative to have a focus on the special protections offered to children.

International Legal Framework and Rights of the Child

Law in the form of international conventions can contribute significantly. International instruments stress ‘participation’ as a core value along with survival, protection and development. Laws and legal strategies must be devised to encourage these values. Since the beginning of the twentieth century, the development of international law on the rights of the child has paralleled, in part, the development of general body of international human rights law.

The ‘Declaration of the Rights of the Child, 1924’, adopted by the fifth Assembly of the League of Nation, can be seen as the first International Instrument dealing with children’s rights. [4] The Declaration establishes the claim that ‘mankind owes to the child the best it has to give’. This Declaration basically highlights the social and economic entitlements of children and establishes internationally the concept of the right of the child, and lays the foundation for setting the future international standards in the field of children’s rights.

Another International instrument is ‘Declaration of the Rights of the Child, 1959’. Its preamble describes the principle as enunciating rights and freedom, which governments should observe by legislative and other measures progressively taken. Its preamble also makes reference to both the United Nation Charter and the Universal Declaration of Human Rights. This further reiterates the pledge that, ‘mankind owes to the child the best it has to give’. In accordance with the Declaration, a child is entitled to a name and nationality [5] , to adequate nutrition, housing, recreation, and medical services [6] , special needs of physically, mentally and ‘socially handicapped’ children [7] , children who are without family [8] etc. A noticeable departure from the principles of the 1924 Declaration is that the earlier Declaration Specified that ‘Children must be the first to receive relief, whereas the 1959 Declaration lays down that children shall be ‘among the first’ to receive protection and relief is a good realistic approach undertaken. [9]

In 1978, on the eve of the United Nations-sponsored International Year of the Child, a draft text was proposed for the Convention on the Rights of the Child. Drawing heavily from the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights, a working group within the United Nations then collaborated and revised the draft, finally agreeing what became the articles of the Convention on the Rights of the Child. [10] . The ‘Convention on the Rights of the Child, 1989’, [11] brings together the children’s human rights articulated in other international instruments. This Convention articulates the rights more completely and provides a set of guiding principles that fundamentally shapes the way in which we view children. The Convention on the Rights of the Child was the first instrument to incorporate the complete range of international human rights— including civil, cultural, economic, political and social rights as well as aspects of humanitarian law. [12]

Article 4, 42 and 44 of CRC provides for General measures of implementation. This highlights the need to constantly review relevance of reservations and the importance of bringing national legislation in conformity with the convention.

Article 1 gives the definition of the age of the child. No minimum age is defined. Article 2, 3, 6 and 12 of CRC give the four general principles of the convention i.e. non-discrimination, best interest of the child, right to survival and development, and respect for the views of the child. Whereas, Articles 7, 8, 13-17 and 37(a) specify the civil rights and freedoms which include the right to name and nationality, freedom of expression and peaceful assembly, right not to be subjected to torture, etc.

There are four general principles enshrined in the convention. These are meant to ensure the interpretation of the Convention as a whole and thereby guide the national programmes of implementation. The four principles are Non-Discrimination (Article 2), Best interest of the Child (Article 3), The Right to life, and survival and development (Article 6), and The Views of the Child (Article 12).

Moreover, to deal with the growing abuse and exploitation of children worldwide, the United Nations General Assembly in 2000 adopted two Optional Protocols to the Convention on the Child Rights to increase the protection of children from involvement in armed conflicts and from sexual exploitation.

Optional Protocol on the involvement of children in armed conflict [13] is an effort to strengthen implementation of the Convention and increase the protection of children during armed conflicts. The Protocol requires States who ratify it to “take all feasible measures” to ensure that members of their armed forces under the age of 18 do not take a direct part in hostilities.  States must also raise the minimum age for voluntary recruitment into the armed forces from 15 years but does not require a minimum age of 18.

The other one is ‘Optional Protocol on the sale of children, child prostitution and child pornography’ [14] The Convention’s Optional Protocol on the sale of children, child prostitution and child pornography supplements the Convention by providing States with detailed requirements to end the sexual exploitation and abuse of children.  It also protects children from being sold for non-sexual purposes—such as other forms of forced labour, illegal adoption and organ donation.

The Protocol defines the offences like ‘sale of children’, ‘child prostitution’ and ‘child pornography’. It also creates obligations on governments to criminalize and punish the activities related to these offences. It requires punishment not only for those offering or delivering children for the purposes of sexual exploitation, transfer of organs or children for profit or forced labour, but also for anyone accepting the child for these activities.

Besides the above stated specific international instrument, some Articles of General Global Human Rights Instruments like the Universal Declaration of Human Rights, 1948; International Covenant on Economic, Social and Cultural Rights, 1966 and International Covenant on Civil and Political Rights (ICCPR), 1966 also deal with the Child Rights. Two Articles of UDHR expressly refer to children. Article 25(2) deal with special care and assistance and Article 26 on education. [15]

Article 10 and 12 of the International Covenant on Economic, Social and Cultural Rights specifically refers to Children. Article 10 provides that states recognize the family as the ‘natural and fundamental group unit of society and therefore accord the widest possible protection and assistance to the family. Article 10 (3) contains a wide ambit of protection.

Article 14 (3) (f) of ICCPR provides that criminal proceedings should take account of juveniles’ age and their ‘desirability of promoting their rehabilitation’. The Covenant prohibits the imposition of death penalty for crimes committed by persons below eighteen years of age. It also obliges states to separate accused juveniles from accused adults and bring tem as speedily as possible for adjudication and accord them treatment according to their age and legal status [16] .

Furthermore, one of the Regional Instrument that is ‘European Convention on Human Rights’, 1950 has been used as a valuable instrument for children. Part 1 enshrines the basic principle: ‘Children and young person have the right to special protection against the physical and moral hazards to which they are exposed.

Enforcement of International Instruments in India

On 12 November 1992, the Government of India ratified the ‘Convention on the Rights of the Child’. Article 73 of the Constitution states : ‘subject to the provisions of this Constitution, the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws; and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement’. Article 253 of the Constitution states that ‘Parliament has power to make any law for the whole or any territory or any part of the territory of India for implementing any treaty, agreement to Convention with any other country or countries or any decision made at any international conference, association or other body’.

In order to ensure child right practices and in response to India’s commitment to UN declaration to this effect, the government of India set up a National commission for Protection of Child Rights. The Commission is a statutory body notified under an Act of the Parliament on December 29, 2006. Besides the chairperson, it will have six members from the fields of child health, education, children and development, juvenile justice, children with disabilities, elimination of child labour, child psychology or sociology and laws relating to children. The Commission has the power to inquire into complaints and take suo- motu notice of matters relating to deprivation of child’s rights and non-implementation of laws providing for protection and development of children among other things. Aimed at examining and reviewing the safeguards provided by the law to protect child rights, the Commission will recommend measures for their effective implementation. It will suggest amendments, if needed, and look into complaints or take suo motu notice of cases of violation of the constitutional and legal rights of children.

In addition to this, Convention on Rights of the Child obligate the state parties to submit periodic reports stating the measures they have taken to give effect to the provisions of the Convention. [17] Governments that ratify the Convention or one of its Optional Protocols must report to the Committee on the Rights of the Child, the body of experts charged with monitoring States’ implementation of the Convention and Optional Protocols. These reports outline the situation of children in the country and explain the measures taken by the State to realize their rights. In its reviews of States’ reports, the Committee urges all levels of government to use the Convention as a guide in policymaking and implementation.

Also, to highlight the existence of the most egregious violations of international human rights law and encourage Governments to investigate particular cases, the United Nations Commission on Human Rights has appointed a Special Rapporteur on the sale of children, child prostitution and child pornography. The Special Rapporteur, an expert in the field, works to gather and analyze facts for the Commission. [18]

The Juvenile Justice Act is one of such attempt in consonance with the CRC, for juveniles in India. The Act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. However, Juvenile Justice Act, 2000 does not take into account lessons from law reform efforts in other parts of the world or make serious efforts to incorporate the provisions of the Child Rights Convention (CRC) that India has ratified. For instance, the Board has the power to send the child to a special home for a minimum period of not less than two years for a child who is over seventeen and less than eighteen and in case of any other juvenile till he or she ceases to be a juvenile. This provision is in clear contravention of Art. 37(b) of the Convention of the Rights of the Child, which notes that arrest, detention or imprisonment of a child, shall be used only as a measure of the last resort and for the shortest appropriate period of time. [19]

The soul of the CRC is the notion that the child has the right to participate in decisions that affect her (Art 12). This fundamental principle has completely been ignored in the JJ Act 2000. If an enactment were to implement Article 12, it would mean a radical overhaul of existing ways of interacting with children. At every stage in the interface between the child and the juvenile justice system, space should be created for expression of the child’s opinion. So right from the point of arrest, to adjudication before the competent authority to assessment by the authority to placement to everyday living within the institutions set up under the juvenile justice system, the child’s opinion should not only be heard, but given due weight in accordance with the age and maturity of the child.

As far as Constitutional provision is concerned. Article 23 prevents trafficking in women and children for immoral purposes. Article 39(e) and (f) of the directive principles of State policy state that it is the duty of the state to secure that the tender age of children are not abused and forced by economic necessity to enter vocations unsuited to their age and strength and directs the state to ensure that the children are given opportunities to develop in a healthy manner and in conditions of freedom and dignity. Furthermore, in the same line specific legislations were also enacted to deal with trafficking like ‘The Suppression of Immoral Traffic in Women and Girls Act, 1956’ which was later amended in 1970 and 1986 which was result of pursuance of the UN Convention of 1950.

One very significant structure of the legal system is represented by the courts. Courts are a body that is in authority to take decisions. In the case of ‘Mayanbhai Ishwarlal Patel v. union of India’ [20] and again in the case of ‘Vishaka v. State of Rajasthan’ [21] the supreme Court laid the principle that in the absence of a domestic law the contents of international conventions and norms are relevant for the purpose of interpretation of the fundamental Rights. Thus, the courts have on several occasions responded to the needs of children through public interest litigation, especially in the areas of improvement of conditions of children in institutions, prisons, illegal confinement, treatment of physically and mentally disabled children, child labor, adoption, Juvenile Justice, prevention of trafficking of young girls, welfare of children of prostitutes, prohibition of corporal punishment I schools and sex selection tests.

There are few judicial pronouncements which need to be mentioned here. In ‘People’s Union for Democratic Rights v. Union of India’ [22] the court held: but apart from the requirement of ILO Convention No. 59, we have article 24 of the Constitution of India which even if not followed up by appropriate legislation must operate ‘proprio vigore’ and construction work being plainly and undoubtedly a hazardous employment, it is clear that by reason of constitutional prohibition no child below fourteen years can be allowed to be engaged in construction work.

In ‘Bandhua Mukti Morcha v. Union of India and others’ [23] The court emphasized that when the allegations revealed that the workers were being held in bondage without basic amenities like shelter, drinking water, or two square meals a day, it was a violation of the fundamental rights as in this country everyone has a right to live with dignity and free form exploitation.

Conclusion

The major significance of the Convention on the Rights of the Child is that it represents a commitment to improving the situation of children in India. Thus, it can be used by public advocates to force the government to take action on child issues. As the government has already agreed that these standards should be met, advocates need to bring instances of the violation of children’s rights to the attention of the government and the public, and demand change. However, the efforts have not been utterly inadequate. Although law in the form of international convention or national legislation can contribute considerably towards the child rights what matters is how laws are actually implemented, what is done to reach the ideals contained in these laws. Ways must be found, therefore, to enforce the implementation and to ensure that children experience true childhood.