SASI K.G.
Child is a word which has no uniform
meaning in the numerous enactments under the constitution of India. Children of
different age groups are identified for different purposes in the Indian legal
system. Let us consider the legal concept of child in detail.
01. Who is a Child under Indian Legal System?
Generally
the term child is equated with the term of minor under Indian legal system. Until
the Indian Majority Act (Amendment) Act, 1999 came into existence the
attainment of majority according to Indian Majority Act, 1875 was of two kinds,
namely at eighteen years normally and at twenty one years in the case of a
minor on whose behalf a court has appointed a guardian. However, Indian
Majority Act (Amendment) Act, 1999 fixed the age of majority as uniform at the
age of eighteen. But Section 2 of the Indian Majority Act, 1875 states,
(a) The
capacity of any person to act in the following matters (namely), marriage,
dower, divorce and adoption;
(b) The religion or religious rites and usages of any class of
citizens of India; or
(c) The capacity of any person who before this Act comes into
force has attained majority under the law applicable to him.”
Section
2 (a) of The Child Marriage Restraint Act, 1929 defines a child as,
“"Child" means a person who, if a male, has not completed twenty one
year of age, and if a female, has not completed eighteen years of age ;” Section 2 (a) of The Prohibition of Child
Marriage Act, 2006 which repealed The Child Marriage Restraint
Act, 1929 also follows the same definition.
Indian Succession Act, 1925 protects the
succession rights of posthumous children. In
addition to that Section 7 of Indian Succession Act, 1925 states, “7.
Domicile of origin of person of legitimate birth.-The domicile of origin of every person of legitimate
birth is in the country in which at the time of his birth his father was domiciled;
or, if he is a posthumous child, in the country in which his father was
domiciled at the time of the father's death.”
Thus the definition of child varies
from an unborn child to an individual of the age of twenty one. However some
definitions of child according to certain legislations do not include all
minors. Some examples in this regard are given below.
Section 22 (ii) of the Kerala
Education Act, 1958 defines, ““child” means a boy or girl between the ages of
six and fourteen at the beginning of the academic year;”
Section
2(d) of Kerala Children Act, 1972 defines, “ "child" means a boy who
has not attained the age of sixteen years or a girl who has not attained the
age of eighteen years and when used with reference to a child sent to a children's
home or special school applies to that child during the whole period of the
stay, notwithstanding that during the period of such stay, the child may have
attained the above age limit;”
Section 2 (ii) of
The Child Labour (Prohibition and Regulation) Act, 1986 (Act No. 61 of 1986)
defines child as, “child" means a person who has not completed his
fourteenth year of age.”
The concept of child in Indian Penal
Code, 1860 is not strictly in tune with minority but varies largely and is
classified into groups such as unborn child as in Section 316 Causing death of quick unborn child by act amounting
to culpable homicide,
child under seven years as in Section 82
Act of a child under seven years of age, child between seven to twelve as in Section 83 Act of a child above seven and under twelve of
immature understanding,
child below thirteen and fourteen as under Manipur State Amendment Act 30 of
1950 of Section 375 Rape of Indian Penal Code, child below fifteen as per
Section 375 Rape of Indian Penal Code, , child below sixteen as per Sections
375 Rape, 361 Kidnapping from lawful guardianship, 363A
Kidnapping or maiming a minor for purposes of begging, and 375 Rape, child under eighteen years
as in Sections 305 Abetment of
suicide of child or insane person, 361 Kidnapping from lawful guardianship,
363A Kidnapping or maiming a minor for purposes of begging, 366A Procuration of
minor girl, 372 Selling minor for purposes of prostitution, etc, 373 Buying minor
for purposes of prostitution, etc. In Constitution
of India the provisions in regard to children are largely for those who are
under fourteen years as in Articles 21A, 24, 45, and 51A(k).
02. Rights of Children under Constitution of India
Among the numerous rights entrusted to the
children the most express few which are having a direct bearing on the topic
are quoted below.
Article
15 (3)
of the constitution provides for making special legislation for children. It
runs, “(3) Nothing in this article shall prevent the State from making any special
provision for women and children.”
Article
21A of the constitution provides for making special legislation for free and
compulsory education to all children of the age of six to fourteen years.
Article 21 A runs as, “21A. The State shall provide free and compulsory
education to all children of the age of six to fourteen years in such manner as
the State may, by law, determine.”
Article
24 of the constitution provides for the prohibition of employment
of children in hazardous employment in factories, mines etc.. Article
24 runs as, “24. No child below the age of fourteen years
shall be employed to work in any factory or mine or engaged in any other
hazardous employment.”
Article
28 (3)
of the constitution provides for prohibition of compulsory religious instruction
in educational institutions without the consent of the guardian of a child.
Article 28(3) runs as, “(3) No person attending any educational institution
recognised by the State or receiving aid out of State funds shall be required
to take part in any religious instruction that may be imparted in such
institution or to attend any religious worship that may be conducted in such
institution or in any premises attached thereto unless such person or, if such
person is a minor, his guardian has given his consent thereto.”
Article
39 (e) and 39 (f) of the constitution directs the State to secure the interests
of the children and for their protection against abuse and exploitation and to
uphold their dignity. Article 39 (e) and 39 (f)
runs as, “39. The State shall, in particular, direct
its policy towards securing—
………………………………………………………………………………………
(e)
that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity
to enter avocations unsuited to their age or strength;
(f)
that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth
are protected against exploitation and against moral and material abandonment.”
Article
45 of
the constitution directs the State to provide free and
compulsory education for children. Article 45 runs as, “45. The
State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all
children until they complete the age of fourteen years.
Article
51A of the constitution casts a fundamental duty on every parent
or guardian to provide opportunities for education to his child or ward between
the age of six and fourteen years. Article 51 A runs as, “51A.
It shall be the duty of every citizen of India—
(k)
who is a parent or guardian to provide opportunities for education to his child
or, as the case may be, ward between the age of six and fourteen years.”
Article
350A of the constitution directs every State and every
local authority within the State to provide adequate facilities for instruction
in the mother-tongue at the primary stage of education to children belonging to
linguistic minority groups. Article 350A runs as, “350A. It
shall be the endeavour of every State and of every local authority within the
State to provide adequate facilities for instruction in the mother-tongue at
the primary stage of education to children belonging to linguistic minority
groups; and the President may issue such directions to any State as he
considers necessary or proper for securing the provision of such facilities.”
The
topic ‘infants and minors’ comes under item 5 of List III—Concurrent List of the Seventh
Schedule of the Constitution of India. Hence both the Central and State
Governments can make legislation for the protection of infants and minors i.e.
children.
Thus the Union and States are at
liberty and duty bound to ensure the welfare of the children through
legislation. Such legislations range from the state of a child from foetus to
the attainment of majority. Some of the important classes of such rights and
the legislation in that regard are described below.
03. Laws Protecting the Rights of Unborn Children
A few laws protecting the rights of
unborn children are briefed hereunder.
01. Medical Termination of Pregnancy Act, 1971 [Act, No. 34 of 1971]
This Act was enacted with an intention to provide for the
termination of certain pregnancies by registered medical practitioners and for
matters connected therewith or incidental thereto. Even though the Act allowed
medical termination of pregnancy, it made all termination of pregnancies except
made under supervision of registered medical practitioners as punishable.
Section 3 (2) of the Act runs as follows,
“(2) Subject to the provisions of sub‐ section
(4), a pregnancy may be terminated by a registered medical practitioner,‐‐
(a) where the length of the pregnancy does not exceed twelve weeks, if such
medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not
exceed twenty weeks, if not less than two registered medical practitioners are,
of opinion formed in good faith, that‐‐
(i) the continuance of the pregnancy would involve a risk to the life of
the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would be
suffering from such physical or mental abnormalities as to be seriously
handicapped.
Explanation 1.‐‐Where any pregnancy is alleged by the pregnant woman to
have been caused by rape, the anguish caused by such pregnancy shall be
presumed to constitute a grave injury to the mental health of the pregnant
woman.
Explanation 2.‐‐ Where any pregnancy occurs as a result of failure of any
device or method used by any married woman or her husband for the purpose of
limiting the number of children, the anguish caused by such unwanted pregnancy
may be presumed to constitute a grave injury to the mental health of the
pregnant woman.”
This Act also insisted that no termination of pregnancy shall be made in
accordance with this Act at any place other than (a) a hospital established or
maintained by Government, or (b) a place for the time being approved for the
purpose of this Act by Government or a District Level Committee constituted by
that Government.
The person who is not a registered medical practitioner and terminates
pregnancy, a person who terminates any pregnancy in a place other than
prescribed by this Act, and the owner of such unapproved place shall be
punishable under Section
5 of this Act.
02. The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (Act No. 57 of 1994)
This Act was amended in 2002 (Act No.
14 of 2003). The intention of this Act
was to provide for the prohibition of sex selection, before or after conception,
and for regulation of prenatal diagnostic techniques for the purposes of
detecting genetic abnormalities or metabolic disorders or chromosomal
abnormalities or certain congenital malformations or sex-linked disorders and
for the prevention of their misuse for sex determination leading to female
foeticide; and, for matters connected therewith or incidental thereto.
Section 4(3) of the Act proved for,
“3. no pre-natal diagnostic techniques shall be used or conducted unless the
person qualified to do so is satisfied for reasons to be recorded in writing
that any of the following conditions are
fulfilled, namely:—
(i) age of the pregnant woman is above
thirty-five years;
(ii) the pregnant woman has undergone of
two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed
to potentially teratogenic agents such as drugs, radiation, infection or
chemicals;
(iv) the pregnant woman or her spouse has a
family history of mental retardation or physical deformities such as, spasticity
or any other genetic disease;
(v) any other condition as may be specified
by the Central Supervisory Board;”
Provided that the person conducting
ultrasonography on a pregnant woman shall keep complete record thereof in the
clinic in such manner, as may be prescribed, and any deficiency or inaccuracy
found therein shall amount to contravention of provisions of section 5 or
section 6 unless contrary is proved by the person conducting such
ultrasonography.
Thus this Act also prohibited the unhealthy
practice of subjecting all pregnant women for ultrasonography and other
scanning technology.
This Act provided for the constitution of a
Central Supervisory Board and State Supervisory Boards, Appropriate Authorities
and Advisory Committees and also made the registration of institutions doing ultrasonography,
genetic clinics, etc compulsory. The Act ordained punishments to those who
contravened the provisions of this Act by revealing the sex of the foetus, by
functioning without registering under this act, not keeping proper records etc.
There was also provision for the removal of the delinquent doctor’s name from
the register of the State Medical Council, for five years for the first offence
and permanently in case of repetition of the same offence.
03. Section 312 of the Indian Penal Code, 1860
Section 312 of the Indian Penal Code, 1860 treats causing
miscarriage is an offence punishable under law. The section runs as, “312.
Causing miscarriage — Whoever voluntarily
causes a woman with child to miscarry, shall, if such miscarriage be not caused
in good faith for the purpose of saving the life of the woman, be punished with
imprisonment of either description for a term which may extend to three years,
or with fine, or with both; and, if the woman be quick with child, shall be
punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
Explanation —A woman
who causes herself to miscarry, is within the meaning of this section.”
04. Laws Protecting Children at the time of their Birth
When a child is born its care is dependent
upon the care given by its mother and father. It is the duty of the parents to
look after the children and the society has a duty to provide for the facilities
necessary to the parents for the proper care of their children. Hence the Maternity Benefit Act, 1961 (No. 53 of 1961) and similar
laws are important in this respect.
01. Maternity Benefit Act, 1961
Maternity Benefit Act, 1961 (No. 53 of 1961) was enacted to regulate the employment of women in
certain establishment for certain period before and after child-birth and to
provide for maternity benefit and certain other benefits. According to Section
5 (3) this Act, “The maximum period for
which any woman shall be entitled to maternity benefit shall be twelve weeks,
that is to say, six weeks up to and including the day of her delivery and six
weeks immediately following that day.” During this leave she will get full wages. But no woman shall be entitled to
maternity benefit unless she has actually worked in an establishment of the
employer from whom she claims maternity benefit, for a period of not less than
eighty days in the twelve months immediately preceding the date of her expected
delivery.
Section 9 of the Maternity Benefit Act states, “9.
Leave for miscarriage. -- In
case of miscarriage, a woman shall, on production of such proof as may be
prescribed, be entitled to leave with wages at the rate of maternity benefit
for a period of six weeks immediately following the day of her miscarriage.”
Answering the starred question No.
167 of Smt. Pal Shri Jagdambika on 09.03.2015, Minister
of State (IC) for Labour and Employment, Sri. Bandaru Dattatreya had said that the present
Central Government had no proposals to bring amendments to the Maternity
Benefit Act, 1961.
However there are better provisions
already available to Government employees in this regard. Kerala Government
Employees as per Pay revision 2009 enjoys 180 days of Maternity Leave, whereas
Central Government employees enjoy only 135. Kerala Government Employees enjoy
10 days Paternity Leave whereas the Central Government employees enjoy 15 days.
The Central Government female employees enjoy Child Care Leave for 730 days in
their entire service to look after their minor children too, but Kerala
Government Employees do not enjoy that benefit. Kerala Government provides 15
days’ Special Casual Leave for the employed parents of differently abled
children. Central government Employees also get 45 days Maternity Leave for miscarriage
whereas State Government Employees get six weeks.
02. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992
This Act provides for the regulation of
production, supply and distribution of infant milk substitutes, feeding bottles
and infant foods with a view to the protection and promotion of breastfeeding
and ensuring the proper use of infant foods and for matters connected therewith
or incidental thereto.
This act upholds the importance of
feeding breast milk and bans all advertisements of infant milk substitutes. It
ensures the quality of the container and feeding bottle as well as the milk
substitute. Section 6(1) of this act provides that a container or a label
affixed to it should contain the following, namely,
“(a) a statement “mother's milk is best for your baby” in capital letters;
(b) a statement that infant milk substitute
or infant food should be used only on the advice of a health worker as to the
need for its use and the proper method of its use;
(c)a warning that infant milk substitute or
infant food is not the sole source of nourishment
of an infant;
(d)the instructions for its appropriate preparation
and a warning against the health hazards
of its inappropriate preparation;
(e)the ingredients used;
(f)the composition or analysis;
(g)the storage conditions required;
(h)the batch number, date of its
manufacture and the date before which it is to be consumed, taking into account
the climatic and storage conditions of the country;
(i)such other particulars as may be
prescribed.”
This Act provides for punishment of
imprisonment and fine for the violation of provisions in this Act.
03. Registration of Births and Deaths Act, 1969
According
to Section 2(1)(a) of the Registration of Births and Deaths Act, 1969 (Act No. 18 of 1969) ““birth” means live-birth or still-birth”
necessitating the registration of both. According to section 8 (1) of this Act,
it shall be the duty of a person to give information for registration in
respect of birth or death, if he is (a) a head of the family, (b) medical
officer in charge of a hospital, (c) the jailor in a jail, (d) the person in
charge of a choultry, chattram, hostel, dharmasala, boarding-house,
lodging-house, tavern, barrack, toddy shop or place of public resort, (e) the
village office headman or officer of the local police station in case of
new-born or dead body found in a public place, or (f) any other prescribed
person. The superintendent of a plantation and a midwife assisting a delivery
are also duty bound to report the birth as per sections 9 and 10 of the Act.
The data so collected shall be kept as permanent record and shall also be used
for the purpose of Census.
04. The National Food Security Act, 2013
The National Food Security Act, 2013 is an
Act to provide for food and nutritional security in human life cycle approach,
by ensuring access to adequate quantity of quality food at affordable prices to
people to live a life with dignity and for matters connected therewith or
incidental thereto. This Act contains many child protection provisions.
Section 2(1) of this Act, identifies the
importance of "anganwadis" as child care and development
centres. As per Section 4 of this Act, every pregnant woman and lactating mother
shall be entitled to— (a) meal, free of charge, during pregnancy
and six months after the child birth, through the local anganwadi, so as to meet the nutritional standards specified in Schedule
II; and (b) maternity benefit of not less than rupees
six thousand, in such installments as may be prescribed by the Central
Government.”
As per Sections 5 and 6 of this Act, “5. …… every child up to the age of fourteen
years shall have the following entitlements for his nutritional needs, namely:—
(a) in the case of children in
the age group of six months to six years, age appropriate meal, free of charge,
through the local anganwadi
so as to meet the nutritional
standards specified in Schedule II:
Provided that for children below the age of
six months, exclusive breast feeding shall be promoted;
(b) in the case of children, up
to class VIII or within the age group of six to fourteen years, whichever is
applicable, one mid-day meal, free of charge, everyday, except on school
holidays, in all schools run by local bodies, Government and Government aided
schools, so as to meet the nutritional standards specified in Schedule II.
(2) Every school, referred to in
clause (b) of sub-section (1), and anganwadi shall have facilities for cooking meals,
drinking water and sanitation:
Provided that in urban areas facilities of
centralised kitchens for cooking meals may be used, wherever required, as per
the guidelines issued by the Central Government.
6. The State Government shall, through the local anganwadi, identify and provide meals, free of charge, to children
who suffer from malnutrition, so as to meet the nutritional standards specified
in Schedule II.”
Schedule II of the Act prescribes the nutritional
standards for children. Thus this act plays a major role in meeting the
nutritional requirements of children.
05. Laws appointing guardians for children
Naturally parents shall act as the natural
guardians of all children if they live, or otherwise not incapacitated. There
are numerous legislations available as India has no uniform civil code. A few
of the important laws and provisions are detailed below.
01. Hindu Minority and Guardianship Act, 1956
This
Act was enacted to amend and codify certain parts of the law relating to
minority and guardianship among Hindus. According to Section 6 of this Act, the
natural guardian of a Hindu minor is as follows,
“6 . Natural guardians of a Hindu minor.- The
natural guardians of a Hindu, minor, in respect of the minor's person as well
as in respect of the minor's property (excluding his or her undivided interest
in joint family property), are-
(a) in the case
of a boy or an unmarried girl-the father, and after him, the mother: provided
that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;
(b) in the case
of an illegitimate boy or an illegitimate unmarried girl-the mother, and after
her, the father;
(c) in the case
of a married girl-the husband;
Provided that
no person shall be entitled to act as the natural guardian of a minor under the
provisions of this section-
(a) if he has
ceased to be a Hindu, or
(b) if he has
completely and finally renounced the world by becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi)
Explanation.-
In this section, the expressions 'father' and 'mother' do not include a
step-father and a step-mother.”
In Gita Hariharan v. Reserve Bank of
India[i]
and Vandana Shiva v. Jayanta Bandhopadhaya[ii],
the Supreme Court has held that under certain circumstances, even when the
father is alive mother can act as a natural guardian. The term 'after' used in
Section 6(a) has been interpreted as 'in absence of' instead 'after the
life-time'.-
The natural guardian has the
following rights in respect of minor children:
(a) Right to custody,
(a) Right to custody,
(b) Right to determine the religion
of children,
(c) Right to education,
(d) Right to control movement, and
(e) Right to reasonable chastisement
These rights are conferred on the
guardians in the interest of the minor children and therefore of each- of these
rights is subject to the welfare of the minor children. The natural guardians
have also the obligation to maintain their minor children.
According to section 9 of this Act,
a Testamentary Guardian may be appointed. Such guardians
are those appointed by the will of the minor's father or
mother or other natural guardian. The
court may appoint a guardian to the minor too.
The powers of the guardians are restricted so that the interests
of the minors are not infringed. Section 13 of the Act provides, “13 . Welfare of minor to be paramount consideration.- (1)
In the appointment of declaration of any person as guardian of a Hindu minor by
a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of
the provisions of this Act or of any law relating to guardianship in marriage
among Hindus, if the court is of opinion that his or her guardianship will not be
for the welfare of the minor.”
02. Guardian under Islamic Law
Imambandi v. Mutsaddi[iii]
upholds that according to Islamic Law, the father is recognized as guardian
which term in the context is equivalent to natural guardian and the mother in
all schools of Muslim law is not recognized as a guardian, natural or
otherwise, even after the death of the father. The father's right of
guardianship exists even when the mother, or any other female, is entitled to
the custody of the minor. The father has the right to control the education and
religion of minor children, and their upbringing and their movement. So long as
the father is alive, he is the sole and supreme guardian of his minor children.
The father's right of guardianship
extends only over his minor legitimate children. He is not entitled to
guardianship or to custody of his minor illegitimate children.
In Muslim law, the mother is not a
natural guardian even of her minor illegitimate children, but she is entitled
to their custody. This principle is stated in the case law Gohar Begum v Suggi[iv],
03. The Guardians and Wards Act, 1890
Both the Christian and General Law of
appointing Guardians are done under this Act. Appointment of Guardians by a
court is also done by the application of this Act. According to Sections 4(2)
and 4(3) of this Act the persons and properties of a ward who is a minor shall
be under the protection of a guardian. Section 5 of this Act empowers the
District court to appoint a guardian for a ward. Section 20 of this act states
that a guardian shall be in fiduciary relationship with his ward and therefore he
should not make any profit out of his office. But he can
receive remuneration as prescribed in Section 22. Section 24 of the Act states,
“24 . Duties of guardian of the person.- A guardian of the person of a
ward is charged with the custody of the ward and must look to his support,
health and education, and such other matters as the law to which the ward is
subject requires.” Section 41 specifies among others that the authority of the
guardian shall cease as soon as the ward ceases to me a minor. Section 45 of
the Act prescribes punishments for the different contumacies of the guardians.
06. Laws enabling education for children
01. Incorporation of Article 21A into the Constitution of India
Even before the incorporation of Article 21A into the Constitution
of India, in Mohini Jain v. State of Karnataka[v] case
known also as Capitation Fee Case, Supreme Court of India ruled that right to
education at all levels is a fundamental right of the citizen under Article 21
of the Constitution and charging capitation fee for admission to educational
institutions was illegal and amounted to citizen’s right to education and is
also violative of Article 14 being
arbitrary, unfair and unjust. But the Supreme Court modified the judgment in
Mohini Jain v. State of Karnataka[vi] in
Unnikrishnan J.P. v. State of Andhra Pradesh[vii]
and held that the right to free education is available only to children until
they complete the age of fourteen years, after that the obligation of the State
to provide education is subject to the limits of its economic capacity and
development. Constitution (Eighty-sixth Amendment) Act, 2002 was
then incorporated Article 21 A into the Constitution of India and Government
started to enact sufficient legislations to achieve the intentions of Article
21 A. Article 21 A guarantees free
and compulsory education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine.
02. Guidelines of the Supreme Court in Ashok Kumar Thakur v. Union of India[viii]
The Supreme Court in this case has held
that “an inversion in priorities between higher and primary/secondary education
would make compliance with Article 21A extremely difficult. It is not suggested that higher education needs no encouragement
or that higher education should not receive more funds, but there has to be
much greater emphasis on primary education. Our priorities have to be changed. Nothing is really more important than to ensure total
compliance of Article 21A. Total compliance means good quality
education be imparted and all children aged six to fourteen regularly attend
schools.” In this regard Supreme Court issued the following guidelines to the
Central Government.
“(a) provides low-income parents/guardians with financial
incentives such that they may .afford to send their
children to schools;
(b) criminally penalizes those who receive
financial incentives and, despite such payment, send their children to work;
(c)
penalizes employers who preclude children from attending schools;
(d) the penalty should include imprisonment;
the aforementioned Bill would serve as an example. The
State is obligated under Article 21A to implement free and compulsory education
in toto.
(e) until we have accomplished for children
from six to fourteen years the object
of free and compulsory education, the Government should continue to increase
the education budget and make earnest efforts to ensure that children go to
schools and receive quality education;
(f) the Parliament should fix a deadline by
which time free and compulsory education will have reached every child. This must be done within six months, as the right to free
and compulsory education is perhaps the most important of all the fundamental rights.
For without education, it becomes extremely difficult to exercise other
fundamental rights.” The Central Government acted accordingly and the Right of
the Children to Free and Compulsory Education Act, 2009 was enacted.
03. Right of the Children to Free and Compulsory Education Act, 2009
The Right of Children to Free and Compulsory
Education Act provided for the following changes in the primary education
scenario.
1. Free and compulsory education to all
children of India in the 6-14 age group;
2. No child shall be held back, expelled,
or required to pass a board examination until completion of elementary education;
3. A child who completes elementary
education (upto class VIII) shall be awarded a certificate;
4. Calls for a fixed student-teacher ratio;
5. Will apply to all of India except Jammu
and Kashmir;
6. Provides for 25 per cent reservation for economically disadvantaged communities in admission
to Class One in all private schools;
7. Mandates improvement in quality of
education;
8. School teachers will need adequate
professional degree
within five years or else will lose job;
9. School infrastructure (where there is
problem) to be improved in three years, else recognition
cancelled;
10. Financial burden will be shared between
state and central government.
11. Model Rules prescribed and the
States must make rules.
07. Laws to protect the Right of the Children against Exploitation
Article 23 and 24 prohibit the
Constitution Crimes of traffic in human beings
and begar and other similar forms of forced labour and the engagement of children in
hazardous employments. There are numerous enactments protecting children from
these evils.
01. The Immoral Traffic (Prevention)] Act, 1956
The Immoral Traffic (Prevention)] Act, 1956 was enacted
in pursuance of the International Convention signed at New York on the 9th day
of May, 1950, for the prevention of immoral traffic. Section 2 (aa) of this Act
defines a child as “"child" means a person who has not completed the
age of sixteen years” and Section 2 (cb) defines a minor as “"minor"
means a person who has completed the age of sixteen years but has not completed
the age of eighteen years.”
Section 4 (1) of the Act provides that “ Any person over
the age of eighteen years who knowingly lives, wholly or in part, on the
earnings of the prostitution of (any other person) shall be punishable with imprisonment
for a term which may extend to two years, or with fine which
may extend to one thousand rupees, or with both and where
such earnings relate to the prostitution of a child or a minor, shall be
punishable with imprisonment for a term of not less than seven years and not
more than ten years.
Section 5 of the Act prescribes punishment for a person
for Procuring, inducing or taking person for the sake of prostitution and adds,
“Provided that if the person in respect of whom an
offence committed under this sub-section,-
(i) is a child, the punishment provided under this
sub-section shall extend to rigorous imprisonment for a term of not less than
seven years but may extend to life; and
(ii) is a minor, the punishment provided under this
sub-section shall extend to rigorous imprisonment for a term of not less than
seven years and not more than fourteen years.”
Section 6(2) and 6(2A) provides that, “(2) Where any
person is found with a child in a brothel, it shall be presumed, unless the
contrary is proved, that he has committed an offence under subsection (1).
(2A) Where a child or minor found in a brothel, is on
medical examination, detected to have been sexually abused, it shall be
presumed, unless the contrary is proved, that the child or minor has been
detained for purposes of prostitution or, as the case may be, has been sexually
exploited for commercial purposes.”
Under section 7(1A) of the Act, “Where prostitution is
committed within a distance of two hundred metres of any place of public
religious worship, educational institution, hostel, hospital, nursing home or
such other public place of any kind and it is in respect of a child or minor,
the person committing the offence shall be punishable with imprisonment of
either description for a term which shall not be less than seven years but which
may be for life or for a term which may extend to ten years and shall also be
liable to fine.
Under section 7(2)(c) of the Act, “if prostitution takes
place in respect of a child or minor in a hotel, such licence of the hotel
shall also be liable to be cancelled.”
Under section 17 of the Act, “where a person rescued
under section 16 is a child or minor, it
shall be open to the magistrate to place such child or
minor in any institution established or recognised under any Children Act for
the time being in force in any State for the safe custody of children.”
02. The Child Labour (Prohibition and Regulation) Act, 1986
Section 2 (ii) defines, “"child" means a person who has not completed
his fourteenth year of age.” Section 3 of the Act runs as, “3.
Prohibition of employment of children in certain occupations and processes.—No child
shall be employed or permitted to work in any of the occupations set forth in
Part A of the Schedule or in any workshop wherein any of the processes set
forth in Part B of the Schedule is carried on:” Part A and Part B of the Schedule are reproduced
below.
PART A
Occupations
Any occupation concerned with: -
(1) Transport of passengers, goods or mails by railways;
(2) Cinder picking, clearing of an ash pit or building
operation in the railway premises;
(3) Work in a catering establishment at a railway
station, involving the movement of a vendor or any other employee of the
establishment from the one platform to another or in to or out of a moving
train;
(4) Work relating to the construction of a railway
station or with any other work where such work is done in close proximity to or
between the railway lines;
(5) A port authority within the limits of any port;
(6) Work relating to selling of crackers and fireworks in
shops with temporary licenses;
(7) Abattoirs/Slaughter House;
(8) Automobile workshops and garages;
(9) Foundries;
(10) Handling of toxic or inflammable substances or
explosives;
(11) Handloom and power loom industry;
(12) Mines (underground and under water) and collieries;
(13) Plastic units and fibreglass workshops;
(14) Domestic workers or servants and
(15) Dhabas (roadside eateries), restaurants, hotels,
motels, tea shops, resorts, spas or other recreational centres.
(16) Diving
PART B
Processes
(1) Beedi-making.
(2) Carpet-weaving.
(3) Cement manufacture, including bagging of cement.
(4) Cloth printing, dyeing and weaving.
(5) Manufacture of matches, explosives and fire-works.
(6) Mica-cutting and splitting.
(7) Shellac manufacture.
(8) Soap manufacture.
(9) Tanning.
(10) Wool-cleaning.
(11) Building and construction industry.
(12) Manufacture of slate pencils (including packing).
(13) Manufacture of products from agate.
(14) Manufacturing processes using toxic metals and
substances such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides
and asbestos.
(15) “Hazardous processes” as defined in Sec. 2 (cb) and
‘dangerous operation’ as notice in rules made under section 87 of the Factories
Act, 1948 (63 of 1948)
(16) Printing as defined in Section 2(k) (iv) of the
Factories Act, 1948 (63 of 1948)
(17) Cashew and cashewnut descaling and processing.
(18) Soldering processes in electronic industries.
(19) ‘Aggarbatti’ manufacturing.
(20) Automobile repairs and maintenance including processes
incidental thereto namely, welding, lathe work, dent beating and painting.
(21) Brick kilns and Roof tiles units.
(22) Cotton ginning and processing and production of
hosiery goods.
(23) Detergent manufacturing.
(24) Fabrication workshops (ferrous and non ferrous)
(25) Gem cutting and polishing.
(26) Handling of chromite and manganese ores.
(27) Jute textile manufacture and coir making.
(28) Lime Kilns and Manufacture of Lime.
(29) Lock Making.
(30) Manufacturing processes having exposure to lead such
as primary and secondary smelting, welding and cutting of lead-painted metal constructions,
welding of galvanized or zinc silicate, polyvinyl chloride, mixing (by hand) of
crystal glass mass, sanding or scraping of lead paint,
burning of lead in enameling workshops, lead mining,
plumbing, cable making, wiring patenting, lead casting, type founding in
printing shops. Store type setting, assembling of cars, shot making and lead
glass blowing.
(31) Manufacture of cement pipes, cement products and
other related work.
(32) Manufacture of glass, glass ware including bangles,
florescent tubes, bulbs and other similar glass products.
(33) Manufacture of dyes and dye stuff.
(34) Manufacturing or handling of pesticides and
insecticides.
(35) Manufacturing or processing and handling of
corrosive and toxic substances, metal cleaning and photo engraving and
soldering processes in electronic industry.
(36) Manufacturing of burning coal and coal briquettes.
(37) Manufacturing of sports goods involving exposure to
synthetic materials, chemicals and leather.
(38) Moulding and processing of fiberglass and plastic.
(39) Oil expelling and refinery.
(40) Paper making.
(41) Potteries and ceramic industry.
(42) Polishing, moulding, cutting, welding and
manufacturing of brass goods in all forms.
(43) Processes in agriculture where tractors, threshing
and harvesting machines are used and chaff cutting.
(44) Saw mill – all processes.
(45) Sericulture processing.
(46) Skinning, dyeing and processes for manufacturing of
leather and leather products.
(47) Stone breaking and stone crushing.
(48) Tobacco processing including manufacturing of
tobacco, tobacco paste and handling of tobacco in any form.
(49) Tyre making, repairing, re-treading and graphite
beneficiation.
(50) Utensils making, polishing and metal buffing.
(51) ‘Zari’ making (all processes)’.
(52) Electroplating;
(53) Graphite powdering and incidental processing;
(54) Grinding or glazing of metals;
(55) Diamond cutting and polishing;
(56) Extraction of slate from mines;
(57) Rag picking and scavenging.
(58) Processes involving exposure to excessive heat (e.g.
working near furnace) and cold;
(59) Mechanised fishing;
(60) Food Processing;
(61) Beverage Industry;
(62) Timber handling and loading;
(63) Mechanical Lumbering;
(64) Warehousing;
(65) Processes involving exposure to free silica such as
slate, pencil industry, stone grinding, slate stone mining, stone quarries,
agate industry.”
The Child Labour (Prohibition and Regulation) Act, 1986 also
provides for the constitution of a Child Labour Technical Advisory Committee
(Section 5), no period of work shall exceed three hours without a rest for one
hour, no overtime work and no work between 7 p.m. and 8 a.m. (Section 7),
weekly one full day holiday (Section 8), maintenance of register for engagement of
children for labour (Section 11), rules for ensuring health and safety of
children (Section 13), and Punishments for violation of provisions (Section 14)
are some important provisions of this Act.
03. The Factories Act, 1948 (Act No. 63 of 1948)
The Factories Act, 1948 (Act No. 63 of 1948) includes
many provisions to curtail exploitation of children in factories. Section 2 (c)
of this Act defines child as, “"child" means a person who has not
completed his fifteenth year of age.” “ "Adolescent" means a person
who has completed his fifteen year of age but has not completed his eighteenth
year”(Section 2(b)) and “"young person" means a person who is either
a child or an adolescent” (Section 2(d)). No woman or child shall be employed
in any part of a factory for pressing cotton in which a cotton-opener is at
work (Section 27), State Government to fix maximum weight to be lifted by
adolescent, child etc. (Section 34(2), Creches / suitable rooms for children
under six years of the women employees with facility to feed them under
suitable intervals (Section 48), no child below fourteen allowed to work in
factories (Section 67), non-adult workers to carry tokens certifying fitness
issued by competent officer (Section 68), child not allowed to work for more
than four and a half hours in any day and not to work during night (Section
71), notice of working hours of children to be displayed (Section 72), Register
of child workers to be kept (Section 73), one day leave for every fifteen days
of work performed by a child during the previous calendar year (Section 79),
Penalty for permitting double employment of child (Section 99) etc. are some
important provisions protecting the interests of children in the Factories Act,
1948
04. The Protection of Children from Sexual Offences Act, 2012
The Protection of Children from Sexual Offences Act, 2012
(Act No. 32 of 2012) is an Act to protect children from offences of sexual
assault, sexual harassment and pornography and provide for establishment of
Special Courts for trial of such offences and for matters connected therewith
or incidental thereto. It also addresses (a) the inducement or coercion
of a child to engage in any unlawful sexual activity; (b) the
exploitative use of children in prostitution or other unlawful sexual practices; and (c) the
exploitative use of children in pornographic performances and materials;
According to section 2(d) of this Act child is a person
below eighteen years. As per Section 3 of the Act, penetration of penis, any
object or part of the body, or any application of mouth into the vagina, mouth,
urethra or anus of a child amounts to penetrative sexual assault. Under Section
4, “Whoever commits penetrative sexual assault shall be punished with
imprisonment of either description for a term which shall not be less than
seven years but which may extend to imprisonment for life, and shall also be
liable to fine.”
Section 5(a) to 5(u) of the Act defines the term
‘aggravated penetrative sexual offence’ as committed by a responsible officer
such as a police officer, a public officer etc. or committed at a sensitive
time, method, or the result of the offence is grievous etc. Section 6
prescribes punishment for offences under Section 5 as, “Whoever commits aggravated
penetrative sexual assault, shall be punished with rigorous imprisonment for a
term which shall not be less than ten years but which may extend to
imprisonment for life and shall also be liable to fine.”
The punishment for sexual assaults or sexual activities
without penetration as defined in Section 7 is prescribed in Section 8 as, “Whoever,
commits sexual assault, shall be punished with imprisonment of either description
for a term which shall not be less than three years but which may extend to
five years, and shall also be liable to fine.” In case of aggravated sexual
assault as mentioned in Section 9, the punishment as per Section 10 shall be, “Imprisonment
of either description for a term which shall not be less than five years but
which may extend to seven years, and shall also be liable to fine.” Section 11
and 12 of the Act defines the offence of sexual harassment and the punishment
thereof.
Sections 13, 14 and 15 of the Act deal with the offence
of using a child for pornographic purposes and its punishments. Sections 16, 17
and 18 of the Act deal with abetment and attempt to commit the offences under
this Act and their punishments.
Sections 19 to 27 deals with the procedural provisions and
Sections 28 to 38 provide for the Special Courts under this Act and their
procedure. Sections 39 to 46 are miscellaneous provisions.
The specialty of this Act is that it does not
discriminate between the offenders in the name of sex. Any sexual offence
against a child, be it a girl or a boy, is dealt with severely.
08. Laws Relating to Adoption and Maintenance of Children
For the purpose of adoption, Indian
nationals who are Muslims, Parsis, Christians or Jews are subject to the
Guardians and Wards Act, 1890. Adoptive parent under this act is only the
guardian of the child until it reaches 18 years of age. Indian citizens who are
Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child under
the Hindu Adoption and Maintenance Act, 1956.
01. The Hindu Adoptions and Maintenance Act, 1956
Section 9 of the Hindu Adoptions and Maintenance Act,
1956 provides that no person except the father or mother or the guardian of a
child shall have the capacity to give the child in adoption. Guardian here
includes (a) a guardian appointed by will of the child's father or mother; and
(b) a guardian appointed or declared by a court. Section 11 of the Act
specifies the conditions for a valid adoption as, “11. Other conditions for a
valid adoption- In every adoption, the following conditions must be complied
with:
(i) if any adoption is of a son, the adoptive father or
mother by whom the adoption is made must not have a Hindu son, son's son or
son's son's son (whether by legitimate blood relationship or by adoption)
living at the time of adoption;
(ii) if the adoption is of a daughter the adoptive father
or mother by whom the adoption is made must not have a Hindu daughter or son's
daughter (whether by legitimate blood relationship or by adoption) living at
the time of adoption;
(iii) if the adoption is by a male and the person to be
adopted is a female, the adoptive father is at least twenty-one years older
than the person to be adopted;
(iv) if the adoption is by a female and the person to be
adopted is a male, the adoptive mother is at least twenty-one years older than
the person to be adopted;
(v) the same child may not be adopted simultaneously by
two or more persons;
(vi) the child to be adopted must be actually given and
taken in adoption by the parents or guardian concerned or under their authority
with intent to transfer the child from the family of its birth or in the case
of an abandoned child or a child whose parentage is not known, from the place
or family where it has been brought up to the family of its adoption.
Provided that the performance of datta homan, shall
not be essential to the validity of an adoption.
Section 12 states that, “An adopted child shall be deemed
to be the child of his or her adoptive father or mother for all purposes with
effect from the date of the adoption and from such date all the ties of the
child in the family of his or her birth shall be deemed to be severed and
replaced by those created by the adoption in the adoptive family”
According to Section 20(2) of the Act, “ A legitimate or illegitimate child may claim maintenance
from his or her father or mother so long as the child is a minor.” Section 23
mandates that the amount of maintenance shall be decided by the court
considering the criteria laid down in that section.
02. The Muslim Women (Protection of Rights on Divorce) Act, 1986
The Muslim Women (Protection of
Rights on Divorce) Act, 1986 (Act No. 25 of 1986) provides for maintenance to a
divorced woman. Section 3 (1)(b) of the Act provides, “
(b) where she herself maintains the
children born to her before or after her divorce, a reasonable and fair
provision and maintenance to be made and paid by her former husband for a
period of two years from the respective dates of birth of such children; “
Section 3(2) of the Act empowers such
woman to file an application before a magistrate for such maintenance and the
magistrate may if he satisfies that her husband having sufficient means, has
failed or neglected to make or pay her within the iddat period a reasonable and
fair provision and maintenance for her and the children; make an order, within
one month of the date of the filing of the application, directing her former
husband to pay such reasonable and fair provision and maintenance to the
divorced woman as he may determine as it and proper.
03. Section 125 of the Criminal Procedure Code, 1973
Section 125 (1) (b) and (c) of the Criminal
Procedure Code, 1973 provide for the maintenance of children as,
“125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain herself,
or
(b) his legitimate or illegitimate minor
child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child
(not being a married daughter) who has attained majority, where such child is,
by reason of any physical or mental abnormality or injury unable to maintain
itself, or
(d) his father or mother, unable to
maintain himself or herself, a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such monthly rate
not exceeding five hundred rupees in the whole, as such Magistrate thinks fit,
and to pay the same to such person as the Magistrate may from time to time
direct: Provided that the Magistrate may order the father of a minor female
child referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means.”
Here " minor" means a person who, under the
provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have
attained his majority.
09. Laws prohibiting Child Marriage
Even though many
child marriage prohibition laws were enacted earlier, none of them were so
effective as the Prohibitionof ChildMarriageAct, 2006.
01. The Prohibitionof ChildMarriageAct, 2006
Section 2(a) to 2(c) of the Act defines, “(a) "child"
means a person who, if a male, has not completed twenty-one years of age, and
if a female, has not completed eighteen years of age;
(b) "child
marriage" means a marriage to which either of the contracting parties is a
child;
(c) "contracting
party", in relation to a marriage, means either of the parties whose
marriage is or is about to be thereby solemnised;”
Under Section 3 of this Act, every child marriage,
whether solemnised before or after the commencement of this Act, shall be
voidable at the option of the contracting party who was a child at the time of the
marriage. A petition for annulling a child marriage by a decree of nullity may
be filed in the district court only by a contracting party to the marriage who
was a child at the time of the marriage. If at the time of filing a petition,
the petitioner is a minor, the petition may be filed through his or her
guardian or next friend along with the Child Marriage Prohibition Officer. The
petition under this section may be filed at any time but before the child filing
the petition completes two years of attaining majority.
Under Section 4 of this Act, the district court may make
an interim or final order directing the male contracting party to the child
marriage, and in case he is a minor, his parent or guardian to pay maintenance to
the female contracting party to the marriage until her remarriage, the quantum
of which is decided by the Court. The amount of maintenance may be directed to
be paid monthly or in lump sum. In case the party making the petition under
section 3 is the female contracting party, the district court may also make a
suitable order as to her residence until her remarriage.
As per section 5, in case children are born out of child
marriage, the District Court may order for the custody and maintenance of such
children. According to Section 6, even if any child marriage is declared void,
the children born out of such child marriage shall be deemed as legitimate.
Sections 9, 10 and 11 prescribe the punishments for the
offences under this Act. A male adult
above eighteen years of age who contracts a child marriage shall be punishable
with rigorous imprisonment which may extend to two years or with which may
extend to one lakh rupees or with both. Whoever performs, conducts, directs or
abets any child marriage shall be punishable with rigorous imprisonment which
may extend to two years and shall be liable to fine which may extend to one
lakh rupees unless he proves that he had reasons to believe that the marriage
was not a child marriage. Where a child contracts a child marriage, any person
having charge of the child, whether as parent or guardian or any other person
or in any other capacity, lawful or unlawful, including any member of an
organisation or association of persons who does any act to promote the marriage
or permits it to be sotemnised, or negligently fails to prevent it from being
solemnised, including attending or participating in a child marriage, shall be
punishable with rigorous imprisonment which may extend to two years and shall
also be liable to fine which may extend up to one lakh rupees. However no woman
shall be punishable with imprisonment.
Section 12 of the
Prohibition of Child Marriage Act, 2006 runs as, “12. Where a child, being a
minor- (a) is taken or enticed out of the keeping of the lawful
guardian; or (b) by force compelled, or by any deceitful means induced
to go from any place; or
(c) is sold for
the purpose of marriage; and made to go through a form of marriage or if the
minor is married after which the minor is sold or trafficked or used for
immoral purposes, such marriage shall be null and void.
(2) For the purposes of this section, it shall be
presumed, unless and until the contrary is proved, that where a minor child has
contracted a marriage, the person having charge of such minor child has
negligently failed to prevent the marriage from being solemnised.”
This Act also provides for the functions of Child
Marriage Prohibition Officers, Courts competent to issue orders in this regard,
duties of District Magistrate etc.
10. Laws prohibiting Contracts by Minors
Generally all legislation, if not expressly provide for,
declare that a minor is incompetent to make any contracts. The Indian Contract
Act is the prime among such enactments.
01. Indian Contract Act, 1872
Section 11 of the Indian Contract Act, 1872 stipulates that “Every person is competent to contract who is of the age of majority
according to the law to which he is subject, and who is sound mind and is not
disqualified from contracting by any law to which he is subject.” Thus a
minor is incompetent to enter into a contract.
Numerous cale laws including Mohori
Bibee v. Dhurmodas Ghose[ix]
and Appaswami Aiyangar vs Narayanaswami Aiyar And Ors[x].
have upheld that the contract of a minor is void.
11. Laws Protecting by Minors in Criminal Offences
S 27 of the Criminal Procedure Code,
1973 provides that, “27. Jurisdiction in the case of juveniles. Any offence not punishable with death or
imprisonment for life, committed by any person who at the date when he appears
or is brought before the Court is under the age of sixteen years, may be tried
by the Court of a Chief Judicial Magistrate, or by any Court specially
empowered under the Children Act, 1960 (60 of 1960 ), or any other law for the
time being in force providing for the treatment, training and rehabilitation of
youthful offenders.” The Children Act, 1960 and the subsequent The
Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of
2000) have now given way to The Juvenile Justice (Care and Protection of
Children) Act, 2015 which came into existence on 2016 January 15.
01. The Juvenile Justice (Care and Protection of Children) Act, 2015
The Intention of this Act is to consolidate and amend the
law relating to children alleged and found to be in conflict with law and
children in need of care and protection by catering to their basic needs
through proper care, protection, development, treatment, social re-integration,
by adopting a child-friendly approach in the adjudication and disposal of
matters in the best interest of children and for their rehabilitation through
processes provided, and institutions and bodies established, hereinunder and
for matters connected therewith or incidental thereto.
Section 2(12) defines “ “child” means a person who has not completed eighteen
years of age,” The term child and juvenile as defined in Section 2(35) are
synonyms. Other major definitions of types of children follow as in Section 2(1) ““abandoned child”
means a child deserted by his biological or adoptive parents or guardians, who
has been declared as abandoned by the Committee after due inquiry,” ”Section
2(13), ““child in conflict with law” means a child who is alleged or found to
have committed an offence and who has not completed eighteen years of age on
the date of commission of such offence; “ and according to Section 2(14), ““child
in need of care and protection” means a child—
(i) who is found without any home or settled place of abode
and without any ostensible means of subsistence; or
(ii) who is found working in contravention of labour laws
for the time being in force or is found begging, or living on the street; or
(iii) who resides with a person (whether a guardian of the
child or not) and such person—
(a) has injured, exploited, abused or neglected the child
or has violated any other law for the time being in force meant for the
protection of child; or
(b) has threatened to kill, injure, exploit or abuse the
child and there is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other
child or children and there is a reasonable likelihood of the child in question
being killed, abused, exploited or neglected by that person; or
(iv) who is mentally ill or mentally or physically
challenged or suffering from terminal or incurable disease, having no one to
support or look after or having parents or guardians unfit to take care, if
found so by the Board or the Committee; or
(v) who has a parent or guardian and such parent or
guardian is found to be unfit or incapacitated, by the Committee or the Board,
to care for and protect the safety and well-being of the child; or
(vi) who does not have parents and no one is willing to take
care of, or whose parents have abandoned or surrendered him; or
(vii) who is missing or run away child, or whose parents
cannot be found after making reasonable inquiry in such manner as may be prescribed;
or
(viii) who has been or is being or is likely to be abused,
tortured or exploited for the purpose of sexual abuse or illegal acts; or
(ix) who is found vulnerable and is likely to be inducted
into drug abuse or trafficking; or
(x) who is being or
is likely to be abused for unconscionable gains ; or
(xi) who is victim of or affected by any armed conflict,
civil unrest or natural calamity; or
(xii) who is at imminent risk of marriage before attaining
the age of marriage and whose parents, family members, guardian and any other
persons are likely to be responsible for solemnisation of such marriage,”
Section 2(42), ““orphan”
means a child—(i) who is without biological or adoptive parents or legal
guardian; or (ii) whose legal guardian is not willing to take, or capable
of taking care of the child,” and Section 2(60), ““surrendered child” means a child, who is
relinquished by the parent or guardian to the Committee, on account of
physical, emotional and social factors beyond their control, and declared as
such by the Committee.” Thus it is evident that this act considers various
states and stages of basic needs of children.
An “administrator” i.e. any district official not below the rank of
Deputy Secretary to the State, on whom magisterial powers have been conferred
(Section 2(4)), Central Adoption Resource Authority constituted under section
69, a Juvenile Justice Board constituted under section 4,
a “Central Authority” or the Government department
recognised as such under the Hague Convention on Protection of Children and
Cooperation in Intercountry Adoption (1993),
“Child Welfare Officer” attached to a Children’s Home, for carrying out
the directions given by the Committee or the Board with such responsibility as
may be prescribed (Section 2(17)), “Child Welfare Police Officer” designated as such
under sub-section (1) of section 107 (Section 2(18)),
“Children’s Home” established or maintained, in every
district or group of districts, by the State Government, either by itself, or
through a voluntary or non-governmental organisation, and is registered as such
for the purposes specified in section 51 (Section 2(19)), “Children’s
Court’’ established under the Commissions for Protection of Child Rights Act,
2005 or a Special Court under the Protection of Children from Sexual Offences
Act, 2012, wherever existing and where such courts have not been designated,
the Court of Sessions having jurisdiction to try offences under the Act
(Section 2(20)), “child
care institution” or Children Home, open shelter, observation home, special
home, place of safety, specialised Adoption Agency and a fit facility recognised
under this Act for providing care and protection to children, who are in need
of such services (Section 2(21)), “Committee” means Child Welfare Committee constituted
under section 27 (Section 2(19)), civil court, which has jurisdiction in matters of
adoption and guardianship and may include the District Court, Family Court and
City Civil Courts (Section 2(23)), “childline
services” or a twenty-four hours emergency outreach service for children in
crisis which links them to emergency or long-term care and rehabilitation service;
(Section 2(25)),
“District Child Protection Unit” or a Child Protection Unit for a District, established
by the State Government under section 106, which is the focal point to ensure
the implementation of this Act and other child protection measures in the
district (Section 2(26)), “fit facility” or a facility being run by a
governmental organisation or a registered voluntary or non-governmental
organisation, prepared to temporarily own the responsibility of a particular
child for a specific purpose, and such facility is recognised as fit for the
said purpose, by the Committee, as the case may be, or the Board, under
sub-section (1) of section 51 (Section 2(27)), “observation
home” or an observation home established and maintained in every district or
group of districts by a State Government, either by itself, or through a
voluntary or non-governmental organisation, and is registered as such, for the purposes
specified in sub-section (1) of section 47 (Section 2(40)), “open shelter” or
a facility for children, established and maintained by the State Government,
either by itself, or through a voluntary or non-governmental organisation under
sub-section (1) of section 43, and registered as such, for the purposes
specified in that section (Section 2(41)), “place of safety” which means any place or
institution, not being a police lockup or jail, established separately or
attached to an observation home or a special home, as the case may be, the
person in-charge of which is willing to receive and take care of the children
alleged or found to be in conflict with law, by an order of the Board or the Children’s
Court, both during inquiry and ongoing rehabilitation after having been found
guilty for a period and purpose as specified in the order (Section 2(46)), “probation
officer” appointed by the State Government under the Probation of Offenders
Act, 1958 or the Legal-cum- Probation Officer appointed by the State Government
under District Child Protection Unit (Section 2(48)), State Adoption
Resource Agency set up by the State Government for dealing with adoption and related
matters under section 67 (Section 2(53)),
“special juvenile police unit” of a district or city or,
as the case may be, any other police unit like railway police, dealing with children
and designated as such for handling children under section 107 (Section 2(55)), “special home” or
an institution established by a State Government or by a voluntary or
non-governmental organisation, registered under section 48, for housing and
providing rehabilitative services to children in conflict with law, who are found,
through inquiry, to have committed an offence and are sent to such institution
by an order of the Board (Section 2(56)), “Specialised Adoption Agency” established by the State
Government or by a voluntary or non-governmental organisation and recognized under
section 65, for housing orphans, abandoned and surrendered children, placed there
by order of the Committee, for the purpose of adoption (Section 2(57)) etc.
The offences committed by a child in conflict with law under
this act are classified as heinous offences, serious offences and petty
offences as defined below.
1. “heinous
offences” includes the offences for which the minimum punishment under the
Indian Penal Code or any other law for the time being in force is imprisonment
for seven years or more (Section 2(33)),
2. “serious offences” includes the offences for which the
punishment under the Indian Penal Code or any other law for the time being in
force, is imprisonment between three to seven years (Section 2(54)), and
3. “petty offences” includes the offences for which the
maximum punishment under the Indian Penal Code or any other law for the time
being in force is imprisonment up to three years (Section 2(45)).
This act introduces sixteen general principles of Care
and Protection of Children as given in Section 3 of the Act, “3. The Central Government, the State Governments, the Board,
and other agencies, as the case may be, while implementing the provisions of
this Act shall be guided by the following fundamental principles, namely:––
(i) Principle
of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or
criminal intent up to the age of eighteen years.
(ii) Principle
of dignity and worth: All human beings shall be treated with equal dignity and
rights.
(iii) Principle
of participation: Every child shall have a right to be heard and to participate
in all processes and decisions affecting his interest and the child’s views shall
be taken into consideration with due regard to the age and maturity of the
child.
(iv) Principle
of best interest: All decisions regarding the child shall be based on the
primary consideration that they are in the best interest of the child and to
help the child to develop full potential.
(v) Principle
of family responsibility: The primary responsibility of care, nurture and
protection of the child shall be that of the biological family or adoptive or
foster parents, as the case may be.
(vi) Principle
of safety: All measures shall be
taken to ensure that the child is safe and is not subjected to any harm, abuse
or maltreatment while in contact with the care and protection system, and
thereafter.
(vii) Positive
measures: All resources are to be mobilised including those of family
and community, for promoting the well-being, facilitating development of
identity and providing an inclusive and enabling environment, to reduce
vulnerabilities of children and the need for intervention under this Act.
(viii) Principle
of non-stigmatising semantics: Adversarial or accusatory words are not to be used in
the processes pertaining to a child.
(ix) Principle
of non-waiver of rights: No waiver of any of the right of the child is
permissible or valid, whether sought by the child or person acting on behalf of
the child, or a Board or a Committee and any non-exercise of a fundamental
right shall not amount to waiver.
(x) Principle
of equality and non-discrimination: There shall be no discrimination against a
child on any grounds including sex, caste, ethnicity, place of birth,
disability and equality of access, opportunity and treatment shall be provided
to every child.
(xi) Principle
of right to privacy and confidentiality: Every child shall
have a right to protection of his privacy and confidentiality, by all means and
throughout the judicial process.
(xii) Principle
of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step
of last resort after making a reasonable inquiry.
(xiii) Principle
of repatriation and restoration: Every child in the juvenile justice system shall have
the right to be re-united with his family at the earliest and to be restored to
the same socio-economic and cultural status that he was in, before coming under
the purview of this Act, unless such restoration and repatriation is not in his
best interest.
(xiv) Principle
of fresh start: All past records of any child under the Juvenile Justice
system should be erased except in special circumstances.
(xv) Principle
of diversion: Measures for dealing with children in conflict with law
without resorting to judicial proceedings shall be promoted unless it is in the
best interest of the child or the society as a whole.
(xvi) Principles
of natural justice: Basic procedural standards of fairness shall be adhered
to, including the right to a fair hearing, rule against bias and the right to review,
by all persons or bodies, acting in a judicial capacity under this Act.
As per section 10 of the Act, as soon as an alleged child
in conflict with law is arrested by a police officer he shall hand over the
child to the Special Juvenile Police Unit. Section 12 provides for the
immediate bail of the child in conflict with law with or without surety or for placing
him into the custody of a fit person, as soon as he is produced before Board.
Section 14 (5) of the Act provides for the
manner of disposal of offences committed by a child in conflict with law as
given below,
“(d) cases of petty offences, shall be disposed of by the
Board through summary proceedings, as per the procedure prescribed under the
Code of Criminal Procedure, 1973;
(e) inquiry of serious offences shall be disposed of by the
Board, by following the procedure, for trial in summons cases under the Code of
Criminal Procedure, 1973;
(f) inquiry of heinous offences,—
(i) for child below the age of sixteen years as on the date
of commission of an offence shall be disposed of by the Board under clause (e);
(ii) for child above the age of sixteen years as on the date
of commission of an offence shall be dealt with in the manner prescribed under
section 15.”
Procedure prescribed under Section 15 enables the Board
to decide whether a child in conflict with law alleged to have committed a
heinous offence be tried similar to the trial of a major person. As per Section 22 of the Act, proceeding under
Chapter VIII of the Code of Criminal Procedure is not to apply against a child.
Section 23 insists that no joint proceedings of child in conflict with law and
person not a child should be done. Section 26 contains provision with respect
of runaway child in conflict with law. Sections 39 to 51 provide for the
rehabilitation and social re-integration of the child. Sections 56 to 73 deal
with adoption of children. Sections 74 to 86 prescribe punishments to various
offences against children. Sections 90 to 112 are miscellaneous provisions.
02. Indian Penal Code 1860
Some provisions of Indian penal Code 1860 protect the
interests of children. A few examples in this regard are given below.
“82. Act of a
child under seven years of age —
Nothing is an offence
which is done by a child under seven years of age.”
“83. Act of a
child above seven and under twelve of immature understanding — Nothing is an offence which is done by a child above
seven years of age and under twelve, who has not attained sufficient maturity
of understanding to judge of the nature and consequences of his conduct on that
occasion.”
Some other provisions of Indian Penal Code 1860 have
already been discussed earlier. Hence they are not repeated.
12. Conclusion
The concept ‘What is unmentioned are more than the
mentioned’ is applicable in the case child rights. It should be born in mind
that the Rights of Children mentioned here are those available to them in
addition to the Constitutional and Statutory rights available to a citizen of
India, and that too is not in a holistic manner, but shows only some
representative rights to understand how our legal system protects our children
who shall decide the future of our country.
Indian legal system springing from the source of the
Constitution has always have kept its eyes open to see the interests of
children even though justice rendering system has remained with its eyes
closed.
[i] 1991
(I) CTC 481
[ii] 1999
AIR (SC) 1149
[iii] (1918)
45 Cal 887
[iv] (1960)
1 SCR 597
[v] (1992) 3 SCC 666 : AIR 1992
SC 1858
[vi] (1992) 3 SCC 666 : AIR 1992
SC 1858
[vii] (1993) 1 SCC 645 : AIR 1993
SC 2178
[ix] (1903)
L.R. 30 I.A. 114 : I.L.R. 30 C. 539 (P.C.) T.R.
[x] (1931) 60 MLJ 117
BIBLIOGRAPHY
1. Right to Education by Dr. Krishna
Pal Malik 2010 Published by Allahabad Law Agency, Faridabad
2. Law Relating to Women and Child by
O.P. Mishra Fifth Edition 2014 Published by Central Law Agency, Allahabad
3. The Constitution of India Volume 1
by D.J. De Third Edition 2012 Reprint Published by Asia Law House, Hyderabad
4. The Constitution of India Volume 2
by D.J. De Third Edition 2012 Reprint Published by Asia Law House, Hyderabad
5. 27 Bare Acts as stated in the List
of enactments mentioned
6. Wikipedia
8. And numerous online sites
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