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SEMINAR
COURSE
R
Rights of the
EPORT - I
Submitted to :-
Submitted By :-
Sanveer Luthra
BBA-LLB Ist yr
2nd Term"
2013003531
ACKNOWLEDGEMENT
The project work titled " Seminar Course Report-I" could not have been developed
without the guidance and support of Ms.
who not only helped in designing a framework for the study but also guided at each
step during data collection and analysis.
The project work has been supported by various research studies conducted by
various experts and authors for which I am deeply thankful.
Sanveer Luthra
(Name and Signature of Student)
CERTIFICATE
This is to certify that the project work "Seminar Course Report-I" is the bonafide
work of
Sanveer Luthra (Name of the Student) who carried out the work
under my Supervision.
Ms.
Smita
Tyagi
(Name of
Teacher)
the
The traditional Indian view of welfare is based on daya, dana, dakshina, bhiksha,
ahimsa, samya-bhava, swadharma and tyaga, the essence of which were selfdiscipline, self-sacrifice and consideration for others. It was believed that the
wellbeing of children depended on these values. Children were recipients of welfare
measures. It was only during the 20th century that the concept of childrens rights
emerged. This shift in focus from the welfare to the rights approach is
significant. Rights are entitlements. They also imply obligations and goals. The rights
approach is primarily concerned with issues of social justice, non-discrimination,
equity and empowerment. The rights perspective is embodied in the United Nations
Convention on the Rights of the Child (CRC), 1989, which is a landmark in
international human rights legislation. India ratified the Convention on the Rights of
4
According to Article 1 of the CRC, a child means every human being below
the age of 18 years unless, under the law applicable to the child, majority is
attained earlier. The Article thus grants individual countries the discretion to
determine by law whether childhood ceases at 12, 14, 16 or whatever age is found
appropriate.
Today, nearly all cultures share the view that the younger the child the more
vulnerable she/he is physically and psychologically and the less able to fend for
herself/himself. Age limits are a formal reflection of societys judgement about the
evolution of childrens capacities and responsibilities. Almost everywhere, age
limits formally regulate childrens activities: when they can leave school; when they
can marry; when they can vote; when they can be treated as adults by the criminal
justice system; when they can join the armed forces; and when they can work. But age
limits differ from activity to activity, and from country to country.
INDIAN LAW
Several provisions in the Constitution of India impose on the State the primary
responsibility of ensuring that all the needs of children are met and that their basic
human rights are fully protected. Article 21 A of the Constitution of India says that the
State shall provide free and compulsory education to all children within the ages of 6
6
and 14 in such manner as the State may by law determine. Article 45 of the
Constitution specifies that the State shall endeavour to provide early childhood care
and education for all children until they complete the age of 6. Article 51 (k) lays
down a duty that parents or guardians provide opportunities for education to their
child/ward between the age of 6 and 14 years.
The age at which a person ceases to be a child varies under different laws in India.
Under the Child Labour Prohibition and Regulation Act, 1986, a child is a person who
has not completed 14 years of age. The Constitution of India protects children below
the age of 14 from working in factories and hazardous jobs. But below 14, they can
work in non-hazardous industries. An area of concern is that no minimum age for
child labour has been specified. But for the purposes of criminal responsibility, the
age limit is 7 and 12 under the Indian Penal Code, 1860. For purposes of protection
against kidnapping, abduction and related offences, its 16 years for boys and 18 for
girls. For special treatment under the Juvenile Justice (Care and Protection of
Children) Act 2000, the age is 18 for both boys and girls. And the Protection of
Women from Domestic Violence Act 2005 defines a child as any person below the age
of 18, and includes an adopted step- or foster child.
Under the Juvenile Justice (Care and Protection of Children) Amendment Act, 2005,
the following amendments were introduced and applicable to all cases involving
detention, prosecution or sentence on imprisonment of juveniles under any such law:
Juvenile in conflict with law means a juvenile who is alleged to have committed
an offence and has not completed his 18th year as on the date of the offence being
committed.
Whenever a claim of juvenility is raised before any court, or a court is of the opinion
that the accused person produced before it was a juvenile on the day the offence was
committed, the court shall make an inquiry, take such evidence as may be necessary
(but not an affidavit) so as to determine the age of the person, and shall record a
finding as to whether or not theperson is a juvenile or a child, stating his age as nearly
as may be
An important provision is that a claim of juvenility may be raised before any court
9
and it shall be recognised at any stage even after disposal of the case in terms of the
provisions. If the court finds a person to be a juvenile on the day the offence was
committed, it shall forward the juvenile to the Board.
It has been observed that, in many instances, if the police that takes a child into
custody finds the child well-built he is considered an adult and denied the
beneficial provisions of the juvenile justice system.
juvenile justice system and not the adult criminal justice system. Children can never
be imprisoned or given the death sentence.
competent to take major decisions affecting herself or others for the purposes of the
Indian Majority Act, Contract Act, Juvenile Justice Act, Child Marriage Restraint Act,
or Representation of Peoples Act. However, under Section 375 of the Indian Penal
Code, the girl (aged 16-18) is given the right of consent to sexual intercourse. Yet, she
cannot marry at that age even with the consent of her parents. She cannot be taken out
of the keeping of her lawful guardian, even with her consent, for lesser purposes. But
she can consent to sexual intercourse so long as she does not go out of the keeping of
her lawful guardian. The Law Commission of India did attempt, in its 84th report, to
bring the age of consent in rape to 18 years, in tune with other enactments and
consistent with refined and modern notions regarding the concern and compassion
that society should bestow on its younger members. But this was not accepted. As a
result, the age of consent in an offence of rape continues to be 16 years even today.
Raising the age of consent for sexual intercourse to 18, consistent with the stipulations
in subsequent enactments, appears to be the unavoidable imperative before the
system.
Child witnesses
The courts have held that evidence from a child witness, if found competent to depose
facts, could be the basis for a conviction. In other words, even in the absence of an
oath, the evidence of a child witness can be considered under Section 118 of the
Evidence Act, provided such a witness is able to understand the answers thereof. The
evidence of a child witness and credibility would depend on the circumstances of each
case. The only precaution the court should bear in mind whilst assessing the evidence
of a child witness is that the witness must be reliable, his/her demeanour must be like
that of any other competent witness, and that there is no likelihood of him/her being
tutored.
Further, Section 118 of the Evidence Act envisages that all persons shall be competent
to testify, unless the court considers that they are prevented from understanding the
questions put to them, or from giving rational answers to the questions, because of
their young age, extreme old age, or disease -- whether of mind or any other similar
cause. However, a young child can be allowed to testify if he/she has the intellectual
capacity to understand questions and provide rational answers.
While the law recognises the child as a competent witness, a child who is around 6
years old, who is unable to form a proper opinion about the nature of the incident
because of immaturity of understanding, is not considered by the court as a witness
whose sole testimony can be relied on without other corroborative evidence. The
evidence of a child must be evaluated carefully because he/she is easy prey to
tutoring.
12
The word child has therefore been used in law as a term denoting relationship; as
a term indicating capacity; and as a term of special protection. Underlying these
alternative specifications are very different concepts about the child. These include
considering a child a burden, which invokes the right to maintenance and support;
regarding children as individuals with temporary disabilities, making for rights to
special treatment and special discrimination; treating children as specially vulnerable,
to ensure rights to protection; and recognising children as resources for the countrys
development, necessitating nurturing and advancement.
Thus there do not appear to be any criteria or scientific parameters for determining a
child: the age limit in some laws appear arbitrary or based on socio-cultural
perceptions. The Indian Mines Act defines children as those below 18 years, and the
various state Shops and Establishment Acts define the age as between 12-15 years.
It is necessary that the definition of child be brought in line with the Convention
on the Rights of the Child -- viz all those below 18 years of age. If the best interest of
the child is the guiding norm, one can err on the side of a higher age limit for
protective care and a lower age limit with respect to civil and cultural matters. A
review of the definition of child, in light of Article 1 of the CRC, has been
referred to the Law Commission of India as part of a comprehensive review of the
Code of Criminal Procedure, the Indian Evidence Act and the Indian Penal Code.
STATUS
13
OF A
CHILD IN INDIA
With more than a third of its population below the age of 18, India has the largest
child population in the world. This backgrounder explores the levels of health,
nutrition, education and social security of children, and government policy and action
on child rights
India has made some significant commitments towards ensuring the basic rights of
children. There has been progress in overall indicators: infant mortality rates are
down, child survival is up, literacy rates have improved and school dropout rates have
fallen. But the issue of child rights in India is still caught between legal and policy
commitments to children on the one hand, and the fallout of the process of
globalisation on the other.
Over the last decade, countries across the world have been changing their existing
economic models in favour of one driven by the free market, incorporating processes
of liberalisation, privatisation and globalisation. The direct impact of free trade on
children may not leap to the eye, but we do know that globalised India is witnessing
worsening levels of basic health, nutrition and shelter. Children are suffering as a
result of social sector cutbacks/policies and programmes and development initiatives
that deprive communities and families of access to and control over land, forest and
water resources they have traditionally depended on.
The negative fallout is visible: children are being deprived of even the scarce social
benefits once available; they are displaced by forced and economic migration,
increasing the number of children subsisting on the streets; more and more children
are being trafficked within and across borders; and rising numbers of children are
engaged in part- or full-time labour. (1)
Ground realities
o With more than one-third of its population below 18 years, India has the
largest young population in the world.
o Only 35% of births are registered, impacting name and nationality.
14
o One out of 16 children die before they attain the age of 1, and one out of 11
die before they are 5 years old.
o 35% of the developing worlds low-birth-weight babies are born in India.
o 40% of child malnutrition in the developing world is in India.
o The declining number of girls in the 0-6 age-group is cause for alarm. For
every 1,000 boys there are only 927 females -- even less in some places.
o Out of every 100 children, 19 continue to be out of school.
o Of every 100 children who enrol, 70 drop out by the time they reach the
secondary level.
o Of every 100 children who drop out of school, 66 are girls.
o 65% of girls in India are married by the age of 18 and become mothers soon
after.
15
targets for children: all children to complete five years of schooling by 2007;
reduction in gender gaps in literacy and wage rates by at least 50%, by 2007;
reduction in Infant Mortality Rate (IMR) to 45 per 1,000 live births by 2007, and 28
by 2012; reduction of Maternal Mortality Rate (MMR) to 2 per 1,000 live births by
2007 and to 1 per 1,000 live births by 2012; arresting the decline in the child sex ratio;
and universalisation of the ICDS scheme.
The draft approach paper of the Eleventh Five-Year Plan (2007-2012) prepared by the
Planning Commission emphatically stated that Development of the child is at the
centre of the Eleventh Plan. While continuing with the rights-based approach to
child development, the plan recognises the importance of a holistic approach,
focusing both on outcomes and indicators for child development as well as macroperspective trends and governance issues.
Despite these laws, policies and commitments, however, what is the actual situation
for Indias children vis--vis health, education, early childhood care and protection?
Survival
The very survival of the Indian child is a matter of concern. Around 2.5 million
children die in India every year, accounting for one in five deaths in the world, with
girls being 50% more likely to die. (2) Eighty-seven children of every 1,000 born still
have the probability of dying between birth and 5 years of age. According to a report
on the state of Indias newborns, the health challenges faced by a newborn child in
India are bigger than those experienced by any other country. (3) Although Indias
Neonatal Mortality Rate (NMR) witnessed a significant decline in the 1980s (from 69
per 1,000 live births in 1980 to 53 per 1,000 live births in 1990), it has remained static
since then (only dropping fourpoints from 48 to 44 per 1,000 live births between 1995
and 2000). (4)
17
The major cause is lack of public health services in remote and interior regions of the
country, poor access to subsidised healthcare facilities, declining State expenditure on
public health, and lack of awareness about preventive child healthcare.
According to the Planning Commission, 50% of below the poverty line (BPL)
families are out of the purview of the targeted public distribution system. The very
method of identifying the poor using the official poverty line defined at an absolutely
low level of income corresponding to the expenditure required to purchase the bare
minimum of calories, is contentious. Therefore, in reality, many more people are
living in food insecurity.
Ironically, the Supreme Court of India has had to intervene to ensure that children in
this country get adequate and nutritious food -- the most basic of rights for all citizens
to stay alive and healthy.
While the overall female-male ratio for all ages rose slightly from the 1991 figure of
927 females per 1,000 males to 933 females per 1,000 males in 2001, the juvenile sex
ratio in the 0-6 age-group fell from 945 girls per 1,000 boys to 927 girls per 1,000
boys. (7) This is a decline of 18 points in just one decade! The Government of India,
in its report to the UN Committee on the rights of the Child (8) said: Every year, 12
million girls are born -- 3 million of whom do not survive to see their 15th birthday.
About one-third of these deaths occur in the first year of life and it is estimated that
every sixth female death is directly due to gender discrimination.
Sex-selective abortion, more commonly known as foeticide, and what appears to be a
re-emergence of infanticide, is taking a heavy toll, even as neglect of survivors of
this weeding out process persists. Unlike all the other social evils attributed to
poverty, the killing of female foetuses through sex-selective abortion cannot be
attributed to poverty and ignorance. Indeed, it is the economically affluent states of
18
Punjab, Haryana, districts of Gujarat, and Delhi that have the dubious distinction of
having more people who can pay for expensive tests to help choose male children
over females. Census figures based on 2001 data from 640 cities and towns across 26
states and union territories reveal that posh metropolitan India, with 904 girls per
1,000 boys, has a lower sex ratio for children below 6 years than overcrowded slums
where there are 919 girls per 1,000 boys. The capital city Delhi has 919
and 859 for slum and non-slum areas respectively. Clearly it is those who can
afford to choose, who use the technology to do so. Almost all government health
policies seem to have an underlying family planning agenda. Health activists say that
with its emphasis on population control, the Rural Health Mission is no different.
Over the years it has become quite clear that if people are forced to limit the size of
their families, they shall do so at the cost of the girl baby, even it means that they have
to import brides from outside their states or communities.
Commenting on the serious decline in the 0-6 sex ratio in India, leading demographer
Ashish Bose says that the governments policies are all wrong. The two-child policy
has got mixed up with female foeticide. Government slogans like Beti ya beta,
dono ek hain (Girl or boy, both are equal) make little sense. And financial sops
for couples having a girl-child make no dent in the traditional preference for sons in
India. If India closes the gender gap between girls and boys aged 1-5 years, 1.3 lakh
lives will be saved and, overall, the child mortality rate will go down by 5%. There is
no guarantee that the girl-child who escapes foeticide, infanticide and is in the 0-6
age-group will escape the cycle of deliberate neglect that may even result in death
because she is less fed, less encouraged to explore the world, more likely to be handed
jobs to do and given less healthcare and medical attention.
Out-patient data from hospitals in northern Indian cities shows lower admissions of
girl-children, and girls who are in a more serious condition than boys when brought
for treatment. An August 2004 spot-check at one hospital showed 25,538 boy-children
and 12,645 girl-children in the OPD records, 3,822 boy-babies as against 3,160 girlbabies born in hospital, and 1,954 boy-children admitted to a paediatric ward as
compared to 1,091 girls. (9)
19
Elementary education
While enrolment levels propelled by the flagship Sarva Shiksha Abhiyan show an
increase, levels of retention in schools remain a matter of concern. There has been a
marginal improvement in the percentage of students who stay in school until Class 5
-- from 61.2% to 62% -- but this is way below the global average of 83.3% (10).
There is a sharp decline in the enrolment ratio at the upper primary level. Also, the
dropout rate increases cumulatively as it proceeds towards higher levels. Although
showing improvement, the enrolment of girls is still below that of boys. The dropout
rate for girls too is higher. Children belonging to scheduled castes and scheduled
tribes continue to face discrimination in schools and have lower enrolment and higher
dropout rates. Despite the promise of education for all, 46% of children from
scheduled tribes and 38% from scheduled castes continue to be out of school, as
against 34% in the case of others. (11) This is not surprising considering the
discrimination that these
children face at school. The same can be said of the discrimination faced by disabled
children.
20
The Constitution of India fails to even recognise education as a right for those
aged 15-18 years. Many children drop out after the elementary level. Indeed, the
system is designed to push children out of education -- there is a lack of adequate
school infrastructure, the quality of education is poor, the educational system is
gender-unfriendly, disabled-unfriendly, caste-discriminatory and violent because of a
high degree of corporal punishment.
A Model Education Bill has been developed and circulated to the states for adoption
into state law. There will thus be no central legislation on education, only state
legislation since education is a state subject. If states decide to adopt the Model
Education Bill as it is, they will be eligible for 75% assistance from the Centre for
education programmes. But if they modify the Model Bill in their formulation of the
state education law, they will only be eligible for 50% of central government
assistance. The Model Education Bill is not available for public scrutiny, posing
serious questions about the governments accountability and transparency.
not part of the schedule of occupations that are considered harmful to children
contradicts the right of every child to free and compulsory education. And yet no
attempt is made to resolve this contradiction. How can children be at work and at
school at the same time? Surely this means
that any attempt to give them access to education will be second-rate, parallel nonformal education?
The Social Jurist, HAQ: Centre for Child Rights and M V Foundation have filed a
joint PIL with the Supreme Court of India challenging the validity of the Child
Labour Act in the wake of the constitutional guarantee to right to education for
children in the 6-14 age-group. In the meantime, vide a notification in the official
gazette dated October 10, 2006, the Centre has expanded the list of hazardous
occupations banning employment of children under 14 years as domestic help or in
restaurants and the entertainment industry.
22
Of
all
persons living with disability, 35.9% are children and young adults in the 0-19 agegroup. Three out of five disabled children in the age-group 0-9 years are reported to
be visually impaired. Movement disability has the highest proportion (33.2%) in the
10-19 age-group. This is largely true of mental disability also. (15)
Barely 50% of disabled children reportedly reach adulthood, and no more than 20%
survive to cross the fourth decade of life. (16) Although there is very little information
regarding the nutritional status of children with disabilities, disabled children living in
poverty are among the most deprived in the world. Those who suffer mental disorders
are much worse off, as there is still very little recognition of the problem.
Poor enforcement of the Persons With Disabilities Act and the Mental Health Act
means that disabled people in India continue to be discriminated against in terms of
23
access to basic services and opportunities. There are few special services for disabled
children. Paediatric wards at government hospitals are incapable of dealing with
children with disabilities, particularly in terms of infrastructure and resources.
Government action
Over the last few years, the government has taken a number of measures related to
children. The most important has been the setting up of a full-fledged Ministry of
Women and Child Development as against the Department of Women and
Development that used to function as part of the Human Resource Development
Ministry. Among the policy and law initiatives that were undertaken was the
formulation of the National Charter for Children 2003, the National Plan of Action for
Children 2005, and enforcement of the National Commissions for Protection of Child
Rights Act 2006. However, the National Policy for Children 1974 has not been
repealed, nor does the charter override it. Thus, the status of the charter is not very
clear. The government announced the much-discussed and long-delayed National Plan
of Action 2005 only in August 2005. Led by the Ministry of Women and Child
Development, the government has completed a study on child abuse in India and is in
the process of drafting a law on Offences Against Children. It has also initiated the
process of amending the present law on child marriage.
Parliament has recently passed the Prohibition of Child Marriage Bill 2006, which
enhances punishment for those involved in these practices, and people abetting or
attending child marriages. It also declares all child marriages null and void. This is
also the main criticism against the legislation that will come into force as a law
applicable retrospectively ie, all child marriages that have taken place in the past
will be declared null and void and the status of children born out of such marriages
will come under question.
The Juvenile Justice (Care and Protection) Act 2000 was amended in 2006 and the
Central Model Rules in this regard are being formulated.
The Model Right to Education Bill is not available for public scrutiny/comment, as is
also the case with the Offences against Children Bill. The Offences against Children
Bill has drawn criticism based on drafts available through various sources. The first is
that it is too vast in terms of the kind of offences it seeks to address under one
umbrella legislation.
The second is that, unlike the Immoral Traffic Prevention Act (ITPA) that extends to
the whole of India, the proposed legislation keeps the State of Jammu and Kashmir
out of its scope. The third, and most important, criticism is that since many of the
offences dealt with under the proposed Bill are of a very serious nature, the
criminality of those offences should be established through
24
the main criminal law of the land, ie the Indian Penal Code and not through a social
legislation. India already has a strong juvenile justice law to deal with social and
reformatory aspects of a crime; that law could be strengthened further to ensure that
human rights standards of child protection are met whilst rehabilitating a child victim.
Moreover, both the Home Ministry and the Law Ministry are working on amendments
in the Criminal Procedure Code, and many activists feel that this is the right time to
seek appropriate amendments to ensure child-friendly legal procedures within the
CrPC and the Indian Evidence Act.
The government has set up a National Coordination Group on the Rights of the Child
for implementation of child rights in the country, and has instituted a Chair on the
theme of Protection of Child Rights as part of the 10 Rajiv Gandhi Chairs in
Contemporary Studies in central and state universities. These mechanisms, however,
are not functional.
Recognising the importance of child budget analysis, the Ministry of Women and
Child Development has institutionalised child budgeting and has included it in the
new National Plan of Action for Children, 2005.
All of the above are important measures. However, what is required is a complete reexamination of the legal framework for children as whole, identification of gaps and
reconciliation of existing anomalies within the law and the implementation of
policies, programmes and schemes meant for children.
Only a recognition of children as individuals with rights can pave the way for future
action. In the absence of this, all efforts will be sporadic, addressing only some
symptoms and not the root cause of the problems that affect the children of this
country.
25
RIGHTS
OF THE
CHILD IN INDIA
The Indian constitution accords rights to children as citizens of the country, and in
keeping with their special status the State has even enacted special laws. The
Constitution, promulgated in 1950, encompasses most rights included in the UN
Convention on the Rights of the Child as Fundamental Rights and Directive Principles
of State Policy. Over the years, many individuals and public interest groups have
approached the apex court for restitution of fundamental rights, including child rights.
The Directive Principles of State Policy articulate social and economic rights that
have been declared to be fundamental in the governance of the country and the
duty of the state to apply in making laws (Article 37).
The government has the flexibility to undertake appropriate legislative and
administrative measures to ensure childrens rights; no court can make the
government ensure them, as these are essentially directives. These directives have
enabled the judiciary to give some landmark judgements promoting childrens
rights, leading to Constitutional Amendments as is in the case of the 86th Amendment
to the Constitution that made Right to Education a fundamental right.
The trouble with child rights begins with the very definition of a child in law. A child
domiciled in India attains majority at the age of 18. But there are several grey areas in
the law here. Under the child labour regulations, for instance, a child is a person under
14 years
constitutional provisions for adequate services to children, both before and after birth
and through the period of growth to ensure their full physical, mental and social
development.
Accordingly, the government is taking action to review the national and state
legislation and bring it in line with the provisions of the Convention. It has also
developed appropriate monitoring procedures to assess progress in implementing the
Convention-involving various stake holders in the society.
India is also a signatory to the World Declaration on the Survival, Protection and
Development of Children. In pursuance of the commitment made at the World
Summit, the Department of Women and Child Development under the Ministry of
Human Resource Development has formulated a National Plan of Action for Children.
Most of the recommendations of the World Summit Action Plan are reflected in
India's National Plan of Action- keeping in mind the needs, rights and aspirations of
300 million children in the country.
The priority areas in the Plan are health, nutrition, education, water, sanitation and
environment. The Plan gives special consideration to children in difficult
circumstances and aims at providing a framework, for actualization of the objectives
of the Convention in the Indian context.
Status of Children in India
Recent UNICEF (2005) report on the state of the worlds children under the title
Childhood Under Threat , speaking about India, states that millions of Indian
children are equally deprived of their rights to survival, health, nutrition, education
and safe drinking water. It is reported that 63 per cent of them go to bed hungry and
53 per cent suffer from chronic malnutrition.
The report says that 147 million children live in kuchcha houses, 77 million do not
use drinking water from a tap, 85 million are not being immunized, 27 million are
severely underweight and 33 million have never been to school. It estimates that 72
million children in India between five and 14 years do not have access to basic
education. A girl child is the worst victim as she is often neglected and is
discriminated against because of the preference for a boy child.
National Commission for Protection of Child Rights
28
population of children aged 0-6 years during 2010-11. The decline in male children is
2.06 million and in female children is 2.99 millions. The share of Children (0-6 years)
in the total population has showed a decline of 2.8 points in 2011, compared to
Census 2001 and the decline was sharper for female children than male children in the
age group 0-6 years.
(Article 24)
o Right to be protected from being abused and forced by economic necessity to
enter occupations unsuited to their age or strength (Article 39(e))
o Right to equal opportunities and facilities to develop in a healthy manner and
in conditions of freedom and dignity and guaranteed protection of childhood
and youth against exploitation and against moral and material abandonment
(Article 39 (f))
o Right to early childhood care and education to all children until they complete
the age of six years (Article 45)
30
The Convention on the Rights of the Child defines basic rights of children covering
multiple needs and issues. India endorsed it on December 11, 1992.
Whose children we are talking about? Are they not our children? If yes, can we
leave them to fend for themselves- defenseless, with out care, devoid of any right and
privileges? Are not WE, the society (men and women) responsible for introducing
them to world? Then, why such apathy? Is it not a crime?
Does it not stir our conscience and provoke to safeguard our children's well beingaccording appropriate status?
Child rights and its accordance is the pillar for national construction, a brighter
tomorrow.
age is raised to twelve years (Sec 83 IPC). A girl must be of at least sixteen years in
order to give sexual consent, unless she is married, in which case the prescribed age is
no less that fifteen. With regard to protection against kidnapping, abduction and
related offenses the given age is sixteen for boys and eighteen for girls.
According to Article 21 (a) of the Indian Constitution all children between the ages of
six to fourteen should be provided with free and compulsory education. Article 45
states that the
state should provide early childhood care and education to all children below the age
of six. Lastly Article 51(k) states the parents/guardians of the children between the
ages of six and fourteen should provide them with opportunities for education.
The Child Labour (Prohibition and Regulation) Act, 1986 defines a child as a person
who has not completed fourteen years of age. The Factories Act, 1948 and Plantation
Labour Act 1951 states that a child is one that has not completed fifteen years of age
and an adolescent is one who has completed fifteen years of age but has not
completed eighteen years of age. According to the Factories Act adolescents are
allowed to work in factories as long as they are deemed medically fit but may not for
more than four and half hours a day. The Motor Transport Workers Act 1961, and The
Beedi And Cigar Workers (Conditions Of Employment) Act 1966, both define a child
as a person who has not completed fourteen years of age. The Merchant Shipping Act
1958 and Apprentices Act 1961 don't define a child, but in provisions of the act state
that a child below fourteen is not permitted to work in occupations of the act. The
Mines Act, 1952 is the only labour related act that defines adult as person who has
completed eighteen years of age (hence a child is a person who has not completed
eighteen years of age).
The Prohibition of Child Marriage Act, 2006 states that a male has not reached
majority until he is twenty-one years of age and a female has not reached majority
until she is eighteen years of age. The Indian Majority Act, 1875 was enacted to create
a blanket definition of a minor for such acts as the Guardians and Wards Act of 1890.
Under the Indian Majority Act, 1875 a person has not attainted majority until he or
she is of eighteen years of age. This definition of a minor also stands for both the
Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and
Maintenance Act, 1956. Muslim, Christian and Zoroastrian personal law also upholds
eighteen as the age of majority. The first Juvenile Justice Act, 1986 defined a boy
child as below sixteen years of age and a girl child as below eighteen years of age.
The Juvenile Justice (Care and Protection of Children) Act, 2000 has changed the
32
definition of child to any person who has not completed eighteen years of age.
Because of its umbrella clauses and because it is the latest law to be enacted regarding
child rights and protection, many are of the opinion that the definition of child found
in the Juvenile Justice Act, 2000 should be considered the legal definition for a child
in all matters.
The right to Expression: Every child has a right to express himself freely in
which ever way he likes. Majority of children however are exploited by their elders
and not allowed to express.
The right to Information: Every child has a right to know his basic rights and
his position in the society. High incidence of illiteracy and ignorance among the
deprived and underprivileged children prevents them from having access to
information about them and their society.
The right to Nutrition: More than 50% of India's children are malnourished.
While one in every five adolescent boys is malnourished, one in every two girls in
India is undernourished.
The right to Health & Care: 58% of India's children below the age of 2 years
are not fully vaccinated. And 24% of these children do not receive any form of
vaccination. Over 60% of children in India are anemic. 95 in every 1000 children born
in India, do not see their fifth birthday. 70 in every 1000 children born in India, do not
see their first birthday.
The right to protection from Abuse: There are approximately 2 million child
commercial sex workers between the age of 5 and 15 years and about 3.3 million
between 15 and 18 years. They form 40% of the total population of commercial sex
workers in India. 500,000 children are forced into this trade every year.
contractors who promise lucrative jobs in the cities and the children end up being
employed in brothels, hotels and domestic work. Many run away and find a life on the
streets.
The right to protection from Neglect: Every child has a right to lead a well
protected and secure life away from neglect. However, children working under
exploitative and inhuman conditions get neglected badly.
The right to Development: Every child has the right to development that lets the
child explore her/his full potential. Unfavourable living conditions of underprivileged
children prevents them from growing in a free and uninhibited way.
The right to Recreation: Every child has a right to spend some time on
recreational pursuits like sports, entertainment and hobbies to explore and develop.
Majority of poor children in India do not get time to spend on recreational activities.
The right to Name & Nationality: Every child has a right to identify himself
with a nation. A vast majority of underprivileged children in India are treated like
commodities and exported to other countries as labour or prostitutes.
The right to Survival: Of the 12 million girls born in India, 3 million do not see
their fifteenth birthday, and a million of them are unable to survive even their first
birthday. Every sixth girl child's death is due to gender discrimination.
ensure that the State does not use the rhetoric of progressive realisation to
de-prioritise child rights on the basis of economic inability.
The stress must be on enabling rights rather than on policy formulations only,
with the State made accountable not only for the recognition of a particular
right but also for putting in place a non-discriminatory delivery system.
The civil and political rights of children, such as the right against abuse and
exploitation, must be connected with their economic, social and cultural rights,
such as education and work. The disjuncture exists because children are not
recognised as full citizens due to their inability to consent, which reduces them
to non-citizens.
Children should have special rights, but at the same time their rights should
not be isolated from larger rights issues. This will ensure that they are also
considered citizens and guaranteed all existing constitutional rights.
Respecting children as citizens is a step towards recognising their voices as
stakeholders and as participants, not just mute beneficiaries.
35
Rural
Urban
37
The
CHILD
LABOUR
Child labour refers to the employment of children in any work that deprives children
of their childhood, interferes with their ability to attend regular school, and that is
mentally, physically, socially or morally dangerous and harmful. This practice is
considered exploitative by many international organisations. Legislations across the
world prohibit child labour. These laws do not consider all work by children as child
labour; exceptions include work by child artists, supervised training, certain
categories of work such as those by Amish children, and others.
Child labour was employed to varying extents through most of history. Before 1940,
numerous children aged 514 worked in Europe, the United States and various
colonies of European powers. These children worked in agriculture, home-based
assembly operations, factories, mining and in services such as newsies. Some worked
night shifts lasting 12 hours. With the rise of household income, availability of
schools and passage of child labour laws, the incidence rates of child labour fell.
39
In developing countries, with high poverty and poor schooling opportunities, child
labour is still prevalent. In 2010, sub-saharan Africa had the highest incidence rates of
child labour, with several African nations witnessing over 50 percent of children aged
514 working.Worldwide agriculture is the largest employer of child labour. Vast
majority of child labour is found in rural settings and informal urban economy;
children are predominantly employed by their parents, rather than factories. Poverty
and lack of schools are considered as the primary cause of child labour.
The incidence of child labour in the world decreased from 25% to 10% between 1960
and 2003, according to the World Bank. Nevertheless, the total number of child
labourers remains high, with UNICEF and ILO acknowledging an estimated 168
million children aged 5-17 worldwide, were involved in child labour in 2013.
Children have the right to a joyful childhood. Every child has the right to grow up in a
safe and nurturing environment with protection and guidance from their guardians.
Whether in the cities or in villages, at home or in schools, a child is always a child and
deserves a childhood free from exploitation and abuse. Yet millions of children in
India are being robbed of their childhoods every day. With an officially estimated 12.6
million children engaged in hazardous occupations (2001 Census), India has the
largest number of child labourers under the age of 14 in the world. They are employed
in many industries and trades, including garments, footwear, brick kilns, stainless
steel, hotels, and textile shops. Many work in export-oriented hazardous industries
like carpet weaving, gem polishing, glass blowing, match works, brassware, electroplating, lead mining, stone quarrying, lock making and beedi rolling (indigenous
cigarette in which tobacco is rolled in a tendu leaf).There are legislations that have
been enacted to prevent child labor in India.
India has the largest number of children employed than any other country in the world
.According to the government of India , 179 million children in the 6- 14 age group
do not go to school and are engaged in some occupation or other .80% of the children
work in hazardous conditions .
40
International Labour Organisation (ILO) suggests poverty is the greatest single cause
behind child labour. For impoverished households, income from a child's work is
usually crucial for his or her own survival or for that of the household. Income from
working children, even if small, may be between 25 to 40% of these household
income. Other scholars such as Harsch on African child labour, and Edmonds and
Pavcnik on global child labour have reached the same conclusion.
Lack of meaningful alternatives, such as affordable schools and quality education,
according to ILO, is another major factor driving children to harmful labour. Children
work because they have nothing better to do. Many communities, particularly rural
areas where between 60-70% of child labour is prevalent, do not possess adequate
school facilities. Even when schools are sometimes available, they are too far away,
difficult to reach, unaffordable or the quality of education is so poor that parents
wonder if going to school is really worth it. Young girl working on a loom in At
Benhaddou, Morocco in May 2008.
In European history when child labour was common, as well as in contemporary child
labour of modern world, certain cultural beliefs have rationalised child labour and
thereby encouraged it. Some view that work is good for the character-building and
skill development of children. In many cultures, particular where informal economy
and small household businesses thrive, the cultural tradition is that children follow in
their parents' footsteps; child labour then is a means to learn and practice that trade
from a very early age. Similarly, in many cultures the education of girls is less valued
or girls are simply not expected to need formal schooling, and these girls pushed into
child labour such as providing domestic services.
42
Agriculture deploys 70% of the world's child labour. Above, child worker on a rice
farm in Vietnam. Biggeri and Mehrotra have studied the macroeconomic factors that
encourage child labour. They focus their study on five Asian nations including India,
Pakistan, Indonesia, Thailand and Philippines. They suggest that child labour is a
serious problem in all five, but it is not a new problem. Macroeconomic causes
encouraged widespread child labour across the world, over most of human history.
They suggest that the causes for child labour include both the demand and the supply
side. While poverty and unavailability of good schools explain the child labour supply
side, they suggest that the growth of low paying informal economy rather than higher
paying formal economy is amongst the causes of the demand side. Other scholars too
suggest that inflexible labour market, sise of informal economy, inability of industries
to scale up and lack of modern manufacturing technologies are major macroeconomic
factors affecting demand and acceptability of child labour.
The
which require neither formal education nor training, but some in heavy industry such
as coal mining.
According to the International Labour Organisation (ILO), there are tremendous
economic benefits for developing nations by sending children to school instead of
work. Without education, children do not gain the necessary skills such as English
literacy and technical aptitude that will increase their productivity to enable them to
secure higher-skilled jobs in future with higher wages that will lift them out of
poverty.
Diamond industry
In the year 1999, the International Labour Organisation co-published a report with
Universal Alliance of Diamond Workers, a trade union. The ILO report claimed that
child labour is prevalent in the Indian diamond industry. International Confederation
of Free Trade Unions (ICFTU) in a separate 1997 press release observed that child
labour continued to flourish in India's diamond industry. Not everyone agreed with
these claims. The South Gujarat Diamond Workers Association, another trade union,
acknowledged child labour is present but it is not systematic, is less than 1% and
against local industry norms. Local diamond industry businessmen too downplayed
these charges. child labour should be banned.
According to the 1999 ILO paper, India annually cuts and polishes 70 per cent of the
worlds diamonds by weight, or 40 per cent by value. Additionally, India contributes
95 percent of the emeralds, 85 percent of the rubies, and 65 percent of the sapphires
worldwide. India processes these diamonds and gems using traditional labourintensive methods. About 1.5 million people are employed in the diamond industry,
mostly in the unorganized sector. The industry is fragmented into small units, each
employing a few workers.
The industry has not scaled up, organised, and big operators absent. The ILO paper
claims that this is to avoid the complex labour laws of India. The export order is split,
work is subcontracted through many middlemen, and most workers do not know the
name of enterprise with the export order. In this environment, claims the ILO report,
exact number of child labourers in India's diamond and gem industry is unknown;
they estimate that child labourers in 1997 were between 10,00 to 20,00 out of 1.5
million total workers (about 1 in 100). The ILO report claims the causes for child
labour include parents who send their children to work because they see education as
44
expensive, education quality offering no real value, while artisan work in diamond
and gem industry to be more remunerative as the child grows up.
A more recent study from 2005, conducted at 663 manufacturing units at 21 different
locations in India's diamond and gem industry, claims incidence rates of child labour
have dropped to 0.31%.
Fireworks manufacture
The town of Sivakasi in South India has been reported to employ child labour in the
production of fireworks. In 2011, Sivakasi, Tamil Nadu was home to over 9,500
firecracker factories and produced almost 100 percent of total fireworks output in
India. The fireworks industry employed about 150,000 people at an average of 15
employees per factory. Most of these were in unorganised sector, with a few
registered and organised companies.
In 1989, Shubh Bhardwaj reported that child labour is present in India's fireworks
industry, and safety practices poor. Child labour is common in small shed operation in
the unorganized sector. Only 4 companies scaled up and were in the organised sector
with over 250 employees; the larger companies did not employ children and had
superior safety practices and resources. The child labour in small, unorganised sector
operations suffered long working hours, low wages, unsafe conditions and tiring
schedules.
A more recent 2002 report by International Labour Organisation claims that child
labour is significant in Tamil Nadu's fireworks, matches or incense sticks industries.
However, these children do not work in the formal economy and corporate
establishments that produce for export. The child labourers in manufacturing typically
toil in supply chains producing for the domestic market of fireworks, matches or
incense sticks. The ILO report claims that as the demand for these products has
grown, the formal economy and corporate establishments have not expanded to meet
the demand, rather home-based production operations have mushroomed. This has
increased the potential of child labour. Such hidden operations make research and
effective action difficult, suggests ILO.
Silk manufacture
A 2003 Human Rights Watch report claims children as young as five years old are
employed and work for up to 12 hours a day and six to seven days a week in silk
industry. These children, claims, are bonded labour; even though the government of
India denies existence of bonded child labour, these silk industry child are easy to find
45
in Karnataka, and Tamil Nadu, claims Children are forced to dip their hands in
scalding water to palpate the cocoons and are often paid less than Rs 10 per day.
In 2010, a German news investigative report claimed that in states like Karnataka,
non-governmental organisations had found up to 10,000 children working in the 1,000
silk factories in 1998. In other places, thousands of bonded child labourers were
present in 1994. But today, after UNICEF and NGOs got involved, child labour figure
is drastically lower, with the total estimated to be fewer than a thousand child
labourers. The released children were back in school, claims the report.
Carpet weaving
Siddartha Kara finds about 20% of carpets manufactured in India could involve child
labour. He notes, "determining the extent to which the hand-made carpet supply chain
from India to the U.S.A. is tainted by slavery and child labor requires an additional
exercise in supply chain tracing."[68] Kara's study also finds variation in child labour
practices between ethnic and religious groups. Kara and colleagues report highest
level of child labour in Muslim community carpet operations, and the presence of debt
bonded child labourers in Muslim villages.
Domestic labour
Official estimates for child labour working as domestic labour and in restaurants is
more than 2,500,000 while NGOs estimate the figure to be around 20 million. The
Government of India expanded the coverage of The Child Labour Prohibition and
Regulation Act and banned the employment of children as domestic workers and as
workers in restaurants, dhabas, hotels, spas and resorts effective from 10 October
2006.
Coal mining
Despite laws enacted in 1952 prohibiting employment of people under the age of 18
in the mines primitive coal mines in Meghalaya using child labour were discovered
and exposed by the international media in 2013.
46
PREVENTION
OF
CHILD LABOUR
IN INDIA
47
concerns should be explicitly addressed and integrated into such a policy. A holistic
approach to education is necessary. In addition, quality education must not stop at
primary level if young people are to be adequately prepared for the labour market and
for decent work within it, rather than being confined to low-skilled, unprotected jobs
in the informal economy.
Experience has shown that providing basic literacy and numeric skills through nonformal education does not guarantee that children will be permanently withdrawn
from work, which is why mainstreaming these children into formal education systems
is vital. Furthermore, investments in basic education normally only reach the more
privileged social groups, whereas efforts should be spread more evenly, focusing
more on children at risk. Social exclusion mechanisms are another strong factor that
keep children out of school and push them into work.
48
The formal and non-formal education systems need to be linked in a more systematic
manner to allow for easier transitions from the non-formal to the formal sector, and
both systems need to be improved and upgraded in many countries.
School admission and retention policies should facilitate the entry or re-entry of
children into schools by providing alternative placement options and independent
learning approaches with adequate guidance and support for over-aged children or
children who re-enter school.
A substantial increase in the availability of public education in rural areas at the preprimary, primary and secondary levels will diminish the pressure and existing
congestion in schools in the urban centres where poor families migrate in search of
both jobs and educational opportunities for their children.
In many cases, children in the worst forms of child labour belong to the lowest strata
of society in terms of ethnicity and culture. In this regard, IPEC is working in
collaboration with the ILO's INDISCO programme and ILO PRO 169 in order to
understand better how these exclusion mechanisms affect the education of indigenous
and tribal peoples and to develop models to counteract them. These models can then
be adapted and replicated in various countries. ILO PRO 169 is the Project to Promote
ILO Policy on Indigenous and Tribal Peoples which operates at the policy level. It
aims to promote the rights of indigenous and tribal peoples, encourage dialogue on the
issues affecting them and to build the capacity of these peoples to promote and protect
their own rights. IPEC is working with PRO 169 to establish the close links between
indigenous children, child labour and education.
Child labor and hunger is one of the principal social illnesses in the country. There are
many institutes, organizations, public departments and international organizations like
UNICEF whose main objective is to prevent child labor. They have many steps to
49
Another option could be to build homes for those children that are living in the streets.
They will be sent to these homes and they would not have to live outside. In this way
we can help prevent children from any abuse that they can suffer in the streets. In
these homes, children are not supposed to work; they can study and learn a career, and
they will get a better job and a future.
Child labor is a very serious problem. Politicians should make laws to prevent child
labor and find solutions. Children are our future and we have to take care of them if
A large number of children work in cottage industries and houses .Poverty has often
50
51
The Child Labour (Prohibition and Regulation) Act, 1986 is one the most debated acts
regarding children in India. It outlines where and how children can work and where
they can not. The provisions of the act are meant to be acted upon immediately after
the publication of the act, except for part III that discusses the conditions in which a
child may work. Part III can only come into effect as per a date appointed by the
Central Government (which was decided as 26th of May, 1993).
The act defines a child as any person who has not completed his fourteenth year of
age. Part II of the act prohibits children from working in any occupation listed in Part
A of the Schedule; for example: Catering at railway establishments, construction work
on the railway or anywhere near the tracks, plastics factories, automobile garages, etc.
The act also prohibits children from working in places where certain processes are
being undertaken, as listed in Part B of the Schedule; for example: beedi making,
tanning, soap manufacture, brick kilns and roof tiles units, etc. These provisions do
not apply to a workshop where the occupier is working with the help of his family or
in a government recognised or aided school.
The act calls for the establishment of a Child Labour Technical Advisory Committee
(CLTAC) who is responsible for advising the government about additions to the
Schedule lists.
Part III of the act outlines the conditions in which children may work in
occupations/processes not listed in the schedule. The number of hours of a particular
kind of establishment of class of establishments is to be set and no child can work for
more than those many hours in that particular establishment. Children are not
permitted to work for more than three hour stretches and must receive an hour break
after the three hours. Children are not permitted to work for more than six hour
stretches including their break interval and can not work between the hours of 7 p.m.
and 8 a.m. No child is allowed to work overtime or work in more than one place in a
given day. A child must receive a holiday from work every week. The employer of the
child is required to send a notification to an inspector about a child working in their
establishment and keep a register of all children being employed for inspection.
If there is a dispute as to the age of the child, the inspector can submit the child for a
medical exam to determine his/her age when a birth certificate is not available.
Notices about prohibition of certain child labour and penalties should be posted in
every railway station, port authority and workshop/establishment.
The health conditions of work being undertaken by children shall be set for each
particular kind of establishment of class of establishments by the appropriate
government. The rules may cover topics such as cleanliness, light, disposal of waste
and effluents, drinking water, bathrooms, protection of eyes, maintenance and safety
of buildings, etc.
52
Section IV of the act outlines various remaining aspects such as Penalties. The penalty
of allowing a child to work in occupations/ processes outlined in the schedule which
are prohibited is a minimum of 3 months prison time and/or a minimum of Rs. 10,000
in fines. Second time offenders are subject to jail time of minimum six months.
Failure to notify an inspector, keep a register, post a sign or any other requirement is
punishable by simple imprisonment and/or a fine up to Rs. 10,000. Offenders can only
be tried in courts higher than a magistrate or metropolitan magistrate of the first class.
Courts also have the authority to appoint people to be inspectors under this act.
Rules of this act must be passed by the respective parliaments (state or central). Any
changes or added provisions must be passed by the parliament. The establishment of
this act also calls for a change in a number of other acts. The Employment of Children
Act of 1938 is repealed. The enactment of this act changes the definition of child to
one who has not completed his fourteenth year of age. Hence under provisions of this
act the age of a child is also changed in the Minimum Wages Age 1948, the
Plantations Labour Act 1951, the Merchant Shipping Act 1958, and the Motor
Transport Workers Act 1961.
53