Abstract
A cry that has been echoed by child rights activists long ago is still not heard by anyone. The violation of child rights is still happening in different parts of the country. In this paper, we analyse the precarious situation of children in India and how various factors like poverty, lack of health facilities, education etc. contribute together to make the situation even more worse. Before that, we even get to know that who is a child as the definition of a child varies from act to act. We will also come across the constitutional provisions related to the children such as article 21(a), 24 etc. In this paper, we will broadly deal with the four issues related to child – child labour, child marriage, educational aspects and juvenile delinquency. Along with that we will explore the various legislations passed by government such as Right to education act 2009, Juvenile justice (care and protection act) 2015, special marriage act of 1954 etc. to control the menace of child marriage, child labour, education system etc. In addition to that relevance of various landmark cases such as Nirbhaya case, Bandhua Mukti Morcha case, Unnikrishnan v. State of Andhra Pradesh etc. and many programmes introduced by government is also mentioned. In short, this paper broadly covers some of the issues related to the child rights.
- Introduction
Human rights are a result of democracy. They are developed as a result of long-time suppression of human beings. Denial of human rights not only leads to abrogation of personal liberty of individual but also leads to a peculiar situation in a country where situation of social unrest and violence occurs[1].
Professor H.J. Laski made very famous statements on rights “Rights are those conditions of social life without which no man can be his best self”[2] which inherently says that human beings can be at its best when they enjoy all the liberties and freedom. The movements for the rights of human nature started long back, but a country whose significant part of the population consists of children neglected the rights of the children[3]. Unfortunately, children are not getting the opportunities and platform to express their interests and various problems that they are facing in their daily lives. They are always asked to remain silent as they are not mature enough to take decisions themselves, but we can say that an era that started with no rights for children has successfully come out with robust legislation for empowerment of children[4]. According to census, 2011 children comprises of 39% of the total population of a country, and they are considered to be an asset of a nation. It is believed that childhood is golden days that are filled with happiness, excitement and joy. It is endowed with all the facilities that are necessary for growth and development of a child. However, reality turns out to be different. It is triggered by lot of issues like poverty, disease and exploitation etc.
How can they be an asset or future of nation when one in every four children is not going to school? More than half of the children population is working as labours and undernourished. It has been clear from the data that many children do not have basic facilities which are necessary for their growth and survival. They are living in miserable conditions which hamper their development as well as the growth of the nation.
According to chapter 1 of a United Nations Human Rights Declaration, all human beings are born equal in dignity and rights, which includes children also[5]Furthermore, the government has to provide support to children through legal agencies and courts etc. Even after 73 years of independence, we are still lagging in the proper enforcement of the rights of children.
- The plight of child in Indian scenario
As we all know that India is progressing at very rapid rate and all the big multinational companies are entering into the Indian market. These companies are contributing a lot in the economic growth of the country, but how can we forget these companies are exploiting the rights of children. Does this growth give any benefit to the plight of children who are underprivileged and living in a miserable condition? I do not think it provides any benefit to the children. I agree that we are progressing in terms of G.D.P. but do you think the growth of India is complete without the growth of population, which is an asset of the nation or the future of the country. We are growing in terms of G.D.P.; import-export but more than one-third of India’s population is living in poverty, which is one of the major factors for creating obstacle in the growth of the children. When a family does not have a meagre income how can they provide better education and health facilities etc. according to census 2011 there are 10.13 million child labours in India, 1 in 4 children is out of school in India and India has more than 45 lakhs girls who married under the age of 15[6]. It is evident from the data available that plight of children in India is pathetic and they are living in an intolerably miserable situation where they do not have basic facilities which are necessary for their growth and development. The data available is a symbol that India is still lagging in protecting the interests of its strength, which is the future of the nation. Although there are hundreds of legislations that have been passed in the last century but still there is a need for proper enforcement of these legislations.
We are talking about the rights of the child, they are exploiting by everyone, they are not getting legitimate facilities etc. but first thought that comes into mind is who child is? What is the legal definition of child? So let us discuss legal dimension related to child. Who is a child according to the books of law?
- Who is a child?
It is a very complicated question because the age of person to be considered as a child legally varies from an act to act. According to article 1 of the United Nations conventions on child rights, every human being below the age of 18 years is child unless, under the law applicable to the child, the majority is attained earlier[7]
In India, the definition of child varies depending upon the purpose of law. Some of the provisions related to the age of the child are as follow:
The Right of Children to Free and Compulsory Education Act 2009 specifies that person from 6 to 14 years is considered to be a child[8].
The Juvenile Justice (Care and Protection of Children) Act, 2015 specifies person below the 18 years of age is considered to be child[9].
The Prohibition of Child Marriage Act 2006 specifies different age for girls and boys. According to this act, “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[10]Child means a person who if a male has not completed 21 years of age and female has not completed 18 years of age. Indian Penal Code 1860 specifies that nothing is an offence if it is done by the child below seven years of age. If person commits a crime between 7 to 12 years of age, then his ability to understand the consequences of an act are taken is taken into consideration[11].
Indian Contract Act 1872 specifies that majority age for entering into contract is 18 years[12]. The agreement with a minor is null and void.
Factories Act 1948 mentioned that person below 15 years is considered to be a child[13].
Similarly, there are many legislations in the Indian legal system where the definition of a child is mentioned, and this definition differs from act to act. Therefore, it is evident from the various legislations that the age of the child is not specific. It varies according to the purpose of the law. Along with this, we can also say that there is various legislation passed by the government for protection of rights of children which can be effectively used to compel the state to take actions for the betterment of children. These legislations reflect the commitment of the country towards the society, which is a weapon for organization.
- Constitutional provisions for children
We all know that Indian democracy is one of the largest democracies of the world and constitution of an India is an integral part of the freedom, and it ensures the rights for every section of society. So there are a lot of provisions in the Indian constitution for the protection of rights of children which is considered to be an essential instrument for raising voice against the system if there is a violation of rights.
Article 14 – 18 deals with Right to equality which says that there should be no discrimination based on caste, sex, colour and gender etc. and there should be equality before law but at the same time article 15 provides special powers to make special provisions for the welfare of children and women. So this article is indirectly related to the welfare of children. Article 21A – this article was inserted in the constitution in 2002 under the 86th amendment, which says that compulsory elementary education should be provided to children from 6 to 14 years. Article 24– This article provides a restriction on working of children under the age of 14 years in any hazardous industry or place etc.[14]
These provisions are considered under the fundamental rights under which if there is any violation of these rights, then it can be enforceable in the court.
Along with that, there are a lot of provisions under directive principles of state for the welfare of the child, but they are not enforceable in a court of law. They are instrument of instructions or welfare principles.
Article 39(f) – under this article clause (f) contains a special provision for children that every child should enjoy all basic facilities that are necessary for his or her development and he or she must be free from any exploitation. Article 45 – This article specifies that childhood care and education should be given until they complete the age of 6 years. Article 51(k) – it specifies that parents should provide education to the children lying between the 6 to 14 years age group.[15]
There are many provisions that are mentioned in the constitution for the rights of the children, but there are very fewer instances where the applicability of these provisions could be seen. They are mere instruments that can be there in books of law but still there is a need to enforce them effectively. Along with these provisions, various legislations are passed in India for the betterment of situation of children. Some of the crucial legislations are -Juvenile justice (care and protection of children) act 2015, the protection of children from sexual offences act 2012, The Right of Children to Free and Compulsory Education Act, 2009, The Child Labour Prohibition and Regulation Act 1986 etc[16].
- Child labour-Meaning
Child labour in India is an acute problem. It is not only related to India, but it is a global issue. It is a major social issue because they are hopes of a nation or we can say that they are wheels of nation. How can we think of the development and growth of the society if wheels are not working effectively? India is one of the leading countries in Asia, where children are involved in child labour. As per 2011 census, the total child population between 5 to 14 years is 259.6 million. Out of this child population, 10.1 million children are involved in child labour industry and working either as a ‘main worker’ or as ‘marginal worker’, and more than 42.7 million children are out of school[17]. The adverse impact of increasing child labour is that it affects him or her mentally or physically. It leads to the complete loss of his or her childhood. Their shoulders are burdened with
a bunch of responsibilities at an early age when they are supposed to be carefree and enjoy their childhood. The period at which their hands are filled with pens, pencils and chocolates are now a day filled with tools and weapons. Various reasons compel the child to work and ruin his or her childhood. The first and foremost reason is Poverty. We all know that Poverty is the root cause of many social evils. Here also, Poverty plays a dominant role in increasing the cases of child labour. In other ways, child labour and Poverty are interlinked. Any child coming from indigent family entered into the trap of child labour to support his or her family and plight of the children working in this child labour industry is worse off but who knows that entering into this mirage of earning money at this age creates the vicious circle of Poverty.
- Role of Judiciary
There are various instances where court acts as guardian and plays a pivotal role in giving its verdict on protecting the interests of the child. In the famous case of Bandhua Mukti Morcha v. Union of India for which P.I.L. was filed to the supreme court under article 32 revealing the fact that a large number of children below the age of 14 years were involved in carpet industry at Uttar Pradesh and some of them were kidnapped from Bihar also. The children working in this industry were victims of violence and belonged to marginalised sections where they were forced to work at this age. Supreme Court in its verdict said that it is challenging to abolish child labour immediately because of economic factors, but steps should be taken immediately to improve educational opportunities, health facilities and development opportunities[18]. Supreme Court in its judgement also made reference to relevant constitutional provisions like Article 21(the Right to life and liberty), article 24(prohibits employment of children under below age of 14 years in hazardous industries, mines), article 39(f)(describes the state duty to protect children from exploitation) etc. along with that measures to abolish child labour mentioned in earlier case of M.C. Mehta v. State of Tamil Nadu[19] was taken into consideration and implemented to the state of Uttar Pradesh and Bihar. The Child Labour (Prohibition and Regulation) Act were passed in 1986 which mentions explicitly that no child below the age of 14 years should be involved in hazardous industries but it also says that this act does not restrict the child from helping his or her family in non precarious business after school hours or during vacations[20]. This act is further amended by The Child and Adolescent Labour (Prohibition and Regulation) Act 2016.
- Child Marriage
We all know that the legal age of marriage in India is 18 year for a girl and 21 year for a boy, but an everyday lot of child marriages is happening in India. It is prevalent in India since time immemorial and firmly established in grassroots of India. Although hundred of legislations have been passed in India in which child marriage is a punishable offence with certain period of imprisonment, flouting of child marriage is still happening. There are various factors that are responsible of child labour in India such as financial aspects, traditions, customs, beliefs and rituals etc. the most common belief people have in their minds is that early marriage leads to more children and more children means more hands which in turn ultimately helps the family to overcome the vicious circle of Poverty but in reality this Poverty remains persistent.
Legal Trends
In the famous case of Smt. Sushila Gothala v. the State of Rajasthan, the plaintiff approached the court under article 226 to seek the attention of court towards the menace prevailing in the state. In-state every year on the day of ‘Akha Teej’ child marriage happens even though provisions of child marriage restraint act 1929 is applicable[21]. Therefore action should be taken immediately to stop this social evil. Similarly, there various cases in which plaintiff knocked the door of the Supreme Court for controlling the menace of child marriage. There are multiple acts that are passed related to the marriage, but marriage comes under personal law, so the age of marriage is different under various laws because personal laws are governed by the religion like marriage in Hindus is governed by Hindu Marriage Act 1955, in Muslims biological factor is taken into consideration which means parties at the time of marriage should attain puberty and for Christians it is regulated by The Christians Marriage Act 1872 but for the age of child marriage in India is regulated by Child marriage restraint act 1929 which is applicable to all Hindus, Muslims, and Christians. Another act related to provisions of child marriage is Special Marriage Act of 1954 clearly stated that marriage solemnized in contravention of the age required will be null and void[22].
- Education- an Important Tool
Every human being wants growth and development opportunities in a life. So we can say that the Right to development is one of the fundamental rights that are necessary for every child in the world. It includes Right to Education, which is the fundamental right of every child under article 21a. Education is the most crucial tool for every individual. Denial of education leads to the retardation of growth prospects not only for the individual but also for the nation. Therefore it is an urgent need of an hour to create a stable base where every child gets an education. The first time question regarding Right to education was confronted by court in famous Mohini Jain v. State of Karnataka and others[23]. In this case, the court specified in its judgement that the state must provide educational opportunities at all the levels to all the citizens but in the landmark judgement of Unnikrishnan J.P. and others v. State of Andhra Pradesh[24], the court narrowed down the scope, and it was clearly stated that Right to primary education should be considered as a fundamental right and compulsory elementary education shall be provided to every child under 86th constitutional amendment in 2002.
The Right to education act was also passed in 2009 by the parliament for providing compulsory and free education to the children from 6 to 14 years and implemented in 2010. Various provisions are mentioned in this act like pupil-teacher ratio, private schools should reserve 25% seats for people below poverty line and schools should not be allowed to charge capitation fee etc. and it was a notable step of the government[25]Nevertheless, specific challenges are related to this act are- this act involves children only 6 to 14 years so what about the children lying between 0 to 6 years and 14 to 18 years when U.N. charter states that free education should be given up to 18 years. We know that this act provides access to the children from poor background to take admission in private schools but do the parents of these children are ready to send them to private schools? I think most of the parents are reluctant to send their children to private schools because it leads to a sudden drastic change in the standard and background from which they come. In this act government laid down the minimum educational qualification for the government teachers, but does it happen in reality? Do all the government teachers meet the minimum educational qualification requirements? There are many challenges faced by the Right to education act, but somewhat, this act is successful in improving the literacy status in India.
Along with that, there are a lot of government schemes and programmes that were launched by the government for the welfare of children in the area of education. Operation Blackboard is one of the crucial programmes initiated by the government in 1987 whose agenda was to provide necessary educational facilities to the primary schools[26]. Another scheme that was launched in 1995 was the National Programme of Nutritional Support to Primary Education (Midday Meal Scheme). The agenda of this scheme was to encourage the children belonging to below poverty line to attend the school and improving the nutritional status of children[27]. We can say that this scheme of the government was somewhat successful in attracting the children to join the school, but the significant disadvantages of this scheme are corruption prevailing in government system, and at some places, this scheme is not working efficiently. The intermediaries sell the products in the market for their gains or the grains provided to the school are of a low quality which affects the health of the children. Similarly, there are many programmes launched by the government from time to time to improve the status of literacy level in India.
Recently the report was presented by the committee for Draft National Education Policy 2019 which was headed by Dr K. Kasturirangan. The report proposed the challenges that are present in the current education system and ways to reform it. The report presented by committee analysed the shortcomings present in the existing education system and also suggested various ways to improve the situation such as increase the focus on early childhood care and more importance should be given to vocational courses as it helps the youth to get many employment opportunities or they can start their own business which allows them to come out of vicious circle of PovertyPoverty. According to the statistics provided by the committee, there is less than 5% youth in India who are getting vocational training as compared to 52% in the U.S.A., 75% in Germany and 96% in South Korea. So there is an urgent need of an hour to take initiatives to improve the current status of education in India[28].
- Juvenile delinquency
Juvenile delinquency refers to any child who conflicts with the law, and he or she is below 18 years of age[29]. We all know that childhood is the happiest time of a person’s life which forms the base for a bright future. Every child is full of potential. They are the building blocks of the nation who lead the country to another level of heights. However, it is very shocking when we hear about the child involved in a conflict with law. What drives the child to this path? Child who is an asset of the nation suddenly becomes the liability for the country, why? There are various factors which lead child to the wrong path, such as lack of interaction with parents, emotional issues and lousy company etc.
In various cases, different courts deal with the issues related to children involved in conflict with the law but Nirbhaya gang rape of 2012[30] in which one of the accused was below 18 years of age and given the punishment of 3 years led to considerable controversy and lot of petitions were filed that he should be treated as an adult due to the heinous nature of the crime, but petitions were dismissed, and he was tried in juvenile justice court. Then the bill regarding the juvenile involved in heinous crime was introduced in parliament by Maneka Gandhi, and finally, it was passed on December 22, 2015, and enforced on January 15, 2016, and known as the Juvenile Justice (Care and Protection of Children) Act 2015. The provisions in this act mentioned that if child who has completed the age of 16 years or above 16 years is involved in heinous crime then juvenile justice board shall conduct a preliminary assessment to determine the mental or physical capacity of child to commit offence and he or she knows the nature and consequences of an act and if child knows the nature and consequences of an action then punishment will be given accordingly[31].
Conclusion
After analysing the situation of the child in India, we can say that there are various acts, legislations and provisions that are made for the welfare of children in India. The three organs of the democracy- legislative, executive and judiciary played an active role in improving the situation of the child in India and lot of N.G.O.s like Bachpan Bachao, Cry etc. are working for the protection of child rights in India. We can say that the situation improves from what it was earlier but still, there is a need for effective implementation of the laws related to the child. The government introduced many policies related to education, child marriage, child labour etc. but all these policies are not working effectively. Therefore, government has to initiate more active steps for the regulation of these policies.
As we all know that despite various laws, policies in a country still the violation of child rights is taking place and children are losing their childhood. The future of nation are becoming liabilities for a nation without growth, educational and health facilities etc. so there is a dire need that more agents should be included even from outside the legal background to address this issue strategically and accountability should be set up for non-implementation of rules and regulations. Along with that growth and development of children should be given priority by the central and state government and adequate financial support for education and health facilities should be provided by the government to fewer fortune children. Moreover, it is not only the responsibility of government, but the community should also start initiatives at smaller level by creating a healthy and peaceful environment where every child should be allowed to express his or her grievances, difficulties that they are facing in their lives. Media should also actively take part in reporting all the incidents of violation of rights and creating awareness about child rights in a society. Everyone has to realise the fact that they are wheels of the nation and we cannot expect growth without the wheels.
[1] S.N. Yogis, Human rights of children, in RIGHTS OF CHILD 86 (Sub hash Chandra Singh ed., 2007)
[2] SRI PRADEEP KUMAR K, POLITICAL SCIENCE PART 1- CALICUT UNIVERSITY(2011)
[3] Sri. T.K Ramakrishnan, HUMAN RIGHTS IN INDIA, (Nov. 20, 2019, 9:30 p.m.), http://universityofcalicut.info/SDE/opencourses/Open_course_SDE_VSem_Human_Rights_in_India.pdf.
[4] S.N. Yogis, Human Rights of Children , in RIGHTS OF CHILD 86(Subhash Chandra Singh ed., 2007)
[5] Universal Declaration of Human Rights, (Nov. 20, 2019, 3:30 PM), https://www.un.org/en/universal-declaration-human-rights/index.html.
[6] Available at http://censusindia.gov.in/ ministry of home affairs, government of India
[7] Convention on the Rights of the Child, (Nov. 20, 2019, 9:00 am), https://www.ohchr.org/documents/professionalinterest/crc.pdf
[8] The Right of Children to Free and Compulsory Education Act, 2009, No. 35, Act of Parliament, 2009 (India).
[9] The Juvenile Justice (care and protection of children) Act, 2015, No. 2, Act of Parliament, 2015 (India).
[10] The Prohibition of Child Marriage Act, 2006, No. 6, Act of Parliament, 2006 (India).
[11] Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
[12] Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872 (India).
[13] Indian Factories Act 1948, No. 63, Acts of Parliament, 1948 (India).
[14] INDIAN CONST. Art. 14-18, 21A &24.
[15] INDIAN CONST. Art. 39(f), 45&51(k).
[16] Child Related Legislation, (Nov. 20, 2019, 10:30 AM), https://wcd.nic.in/act/2315
[17] FACT SHEET: Child labour in India, (Nov. 20, 2019, 10:00 AM), https://www.ilo.org/newdelhi/whatwedo/publications/WCMS_557089/lang–en/index.htm
[18] Bandhua Mukti Morcha v. Union of India, (1997) 10 S.C.C 549 (India).
[19] M.C. Mehta v. State of Tamil Nadu, (1996) 6 S.C.C 756 (India).
[20] Child Labour Prohibition and Regulation Act, 1986, No. 61, Act of Parliament, 1986 (India).
[21] Smt. Sushila Gothala v. the State of Rajasthan, A.I.R. 1995 Raj 90 (India).
[22] Asha Bajpai, Child Rights in India- law, policy and practice,220;221(2nd edition,2006).
[23] Mohini Jain v. State of Karnataka, (1992) A.I.R. 1858 (India).
[24] Unni Krishnan J.P. v. State of Andhra Pradesh, (1993) A.I.R. 2178 (India)
[25] The Right of Children to Free and Compulsory Education Act, 2009, No. 35, Act of Parliament, 2009 (India).
[26] Asha Bajpai, child rights in India law, policy, and practice, 348,(2nd edition, 2006)
[27] Joyita, The Mid Day Meal Scheme, (Nov. 20, 2019, 1:30 PM), https://www.prsindia.org/theprsblog/mid-day-meal-scheme.
[28] Draft National Education Policy 2019, (Nov. 20, 2019, 3:30 PM), https://www.prsindia.org/report-summaries/draft-national-education-policy-2019.
[29] The Juvenile Justice (care and protection of children) Act, 2015, No. 2, Act of Parliament, 2015 (India).
[30] Mukesh v. State(N.C.T. of Delhi), May 5, 2017 (India).
[31] The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2, Act of Parliament, 2015 (India).
