Human Rights of Children

Introduction

The children build the future of the nation. It is important they grow up in a positive environment so that they can take this positivity ahead in future towards the development of society. Each country has its own domestic laws that protect the rights of children. A lot of inspiration has been taken from International Law in this regard. Many children around the globe are faced from discrimination and lack privileges that are given to children of upper class. It is important to take care of children properly and implement the laws formed in their favour so that they can get an equal chance of being successful. 

Meaning of Child

The definition of child has been provided by the Article 1 of Convention on the Rights of Children. It says that a child means “Every human being below the age of eighteen years under the law applicable to child unless majority is attained earlier”.

In India various acts have been made for protection of children which specifies the definition of child differently. Such as Code of Criminal Procedure and Immoral Traffic Prevention act specifies that a child is a person whose age lies between 16 to 18 years and a person who has not reached the age of 16 years respectively. Child labour act denotes age less than 14 years whereas Factories Act denotes less than 15 years.

Child is generally denoted by the term “minor”.

Need for Human Rights of Children

There is a need for special laws to be made for children because they lack proper understanding. That is why they are not taken as competent to enter into a contract. There is a need for protection of their rights because there is always a chance that a child is being exploited or not taken care of properly.

They lack the maturity to take care of themselves so they are dependent upon other people. Children hold the future for the growth of a country and it is necessary that they are properly educated and learn good values so that they can contribute to our society.

Sheela Barse v. Union of India[1]

In this case it was observed that there is a need to take proper care of a child. It is the duty of the family and parents to do the same and raise the child in the right environment. The child must not be neglected. Most of the time when a child commits a crime it is because of the bad social environment in which he is grown.

Human Rights of Children under International Conventions

Various conventions have been adopted that deal with children with special care and protect their rights. Some of these important Conventions are-

Convention on Rights of Child (CRC) 1989

It came into force on 20 November, 1989 which has a binding effect on all the countries that sign it. It is one of the most important Conventions which protect the rights of children. Various rights have been provided to children under this Convention such as right to life, education, social security, privacy, against child labour etc.  

It has got its three own Optional Protocols which are-

  1. Optional Protocol on Involvement of Children in Armed Conflicts

This Optional Protocol which came into force in 1977 states that no child who has not reached the age of 15 years should become a part of the armed forces. A child below the age of 15 years can in no circumstance be involved with the army. The children who belong to the age group of 16 to 18 years can be part of the army but there is a certain requirement that needs to be fulfilled. First of all the child should have all the knowledge of the duty that is needed to be performed. Consent of the guardian is compulsory as well. However that child cannot be involved in any kind of war.

  1. Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

This Optional Protocol was adopted in 2002. It criminalizes the sale, child prostitution and pornography. Various countries that have signed this optional protocol have formed various laws domestically that punishes for committing these acts which are against this protocol.

  1. Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure

A Committee has been formed under this Convention which monitors all the countries who have ratified this Convention. For this a report is submitted by all the countries which tell about the work done by the country to implement the rights given in this Convention. This report is submitted for every 5 years. Complaints can be made to this committee by individuals or countries if there is a violation of rights given under protocol. The country must ratify the treaty and protocol.

International Covenant on Civil and Political Rights (ICCPR), 1966

Article 10 of ICCPR specifies the provision to treat the children who commit an offence to be treated differently than the trials that take place for the adults. They should also be provided with the speedy trial.

Article 23 specifies that in case of dissolution of marriage of the parents necessary arrangement has to be made for the welfare of children.

Article 24 specifies that every child should have a right to nationality without any discrimination and should be treated as a part of family and state.

International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966

Article 10 of ICESCR specifies that the special assistance that should be provided to the children and education should be provided to them. It also provides for the protection of social and economic interests of the children. It prohibits the child labour as well so that growth of children can take properly.

World Declaration on Education for All, 1990

The aim of this is to provide basic education to all the children so the development of children can take place properly. Education should be provided to each and every child.

Article 3 specifically states that educational opportunities should be provided to all without any discrimination and object of declaration is to provide the same to people who lack the access of education.

Universal Declaration on Human Rights (UDHR), 1948

Article 25 of UDHR provides for social protection and care of children.

Article 26 provides for compulsory elementary education which has to be provided for all the children so that respect for human rights can be increased.

Convention on the Civil Aspects of International Child Abduction, 1980

This convention aims to return the children back to the country to which they belong in cases where they are detained by the contracting country wrongfully. It provides an easy procedure for the return and the object is to protect the interests of children.

Convention on Protection of Children and Co-operation w.r.t Inter-Country Adoption, 1993

Article 1 of the convention tells us about the object which aims at protecting the interests of children in case of inter- country adoption. It considers all the circumstances and values the consent of the child in case he is mature enough. The family of origin are well informed about the consequences of adoption as well.

World Summit, 1990

This was conducted for the benefit of children dealing with various issues regarding them. It aimed at providing education to children, protecting them from malnutrition, providing them a decent standard of living, taking action against violation of child rights etc.

International Labour Organisation (ILO)

This organisation has played a crucial in eliminating child labour worldwide. For this International Programme on the Elimination of Child Labour (IPEC) has been adopted in 1990 for the protection of children from hazardous employment. The Worst Forms of Child Labour Convention also came into force in 1999 which protects children from child prostitution, trafficking etc.

The aim of the ILO is to provide educational facilities to children and protect them from exploitation. They want to provide human rights to all the children without any discrimination.

United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990

These rules provide for the children who are under the age of 18 years and who have committed crimes. Rules specify that the interests of these children must be protected. Separate trials are made for these children which is different from that of adults. Involvement of professionals is made so that counselling of these children can be done so that they can contribute for a better society in future.

It respects the moral beliefs and religion of children and protects their mental and physical condition when they are detained. Compensation is provided to children when injuries are inflicted upon them. Human rights of children are protected.

Human Rights of Children in India

In India as well just like International Law various provisions have been made which specifically protects the rights of the children. India is a country where there are many people who are below the poverty line due to which many children do not have access to basic amenities. They do not get proper education, work in hazardous employment, are undernourished etc. because of which the need to protect their human rights increases.

Some of these provisions which protects the human rights of children are-

The Constitution of India

The Constitution of India is the supreme law in India. It contains various rights for children which cannot be taken away from them and the state must necessarily provide them. Both the Fundamental Rights and Directive Principle of State Policy protect rights of children. These rights are-

  1. Fundamental Rights

Article 15(3) provides that the state can make special provisions for the women and children.

Article 21 provides the right to life which means that every person should have the right to basic amenities and have a decent standard of life.

Article 21A  provides for the Right to Education which provides that every child between 6 to 14 years has a right to free and compulsory education and it is the duty of the state to provide the basic elementary education.

Article 24 provides that no child who is below the age of 14 years can be employed in a factory which is involved in hazardous employment.

People’s Union for Democratic Rights v. Union of India[2]

 In this case the question in consideration was whether the construction work can be included in hazardous work or not. Court held the construction work falls within the definition of hazardous work and under Article 24 of the Constitution, no child who hasn’t completed the age of 14 years can engage in it.

  1. Directive Principle of State Policy

Article 41 specifies that states within their economic capacity should provide every person education, assistance and work.

Article 45 states should provide childhood care and education to all the children till they complete six years.

Article 47 specifies that the obligation has been put on the state to provide a decent standard of living.

Article 51 puts an obligation on India to provide all rights given under the treaties which have been ratified by them.

The Juvenile Justice (Care and Protection of Children) Act, 2015

This Act has been made to deal with the children who are below the age of 18 years and have committed the crimes or children who need care and protection. It provides for the giving of decisions by keeping in mind the best interests of children. For this Juvenile Justice Board has been appointed which provides legal aid, conducts inspection of places where children are kept, ensures participation of children in trial etc.

Procedure for the trials of children is way more different than that of adults. No punishment is provided to these except for certain exceptions. They are sent to special homes formed by the government for rehabilitation. Places of safety and observation homes are also made for the same.

Similarly children who are in need of care and protection open shelter, foster care is made which takes care of children.

Lekh Raj v. State[3]

In this case it was observed that the juvenile who commits an offence is given an opportunity to rehabilitate. They can be let out on probation and are not sent to jail where there are criminals who have committed grave offences.

The Protection of Children from Sexual Offence (POCSO), 2012

The aim of this Act is to protect the children from sexual offences who are below the age of 18 years. Punishment has been prescribed for any assault and harassment committed against children. There is a different procedure that has been enacted under this so that the child can be comfortable.

Special Juvenile Police is there who reports the case. The Child Welfare Committee is also there who takes care of the child who needs protection. The statement of the child can be recorded by the magistrate at the place where he is comfortable. Professionals and support personnel are also appointed for the help.

The proceedings that take place in court are in-camera trial proceedings where the court environment is made child friendly. The evidence of the child is recorded within 30 days and proceedings have to be terminated within one year.

Ms.  Eera through Dr. Manjula v. Government of NCT of Delhi[4]

In this case it was observed that under the definition of child only the person whose age is less than 18 years can be included in it only. The person who is above the age of 18 years but is mentally retarded cannot be included in it. This POCSO Act only considers physical age and not mental age.

Right of Children to Free and Compulsory Education Act, 2009

This act has been made to fulfil the obligations provided under Article 21A of the Constitution. The object of the Act is to provide free and compulsory education to all the children whose age is between 6 to 14 years. The obligation of the same has been put upon the state government.

Pramati Educational and Cultural Trust v. Union of India[5]

It was observed that the Right to Education Act came under Article 21A and 45 of the Constitution. Responsibility has been put on the State Government to provide the education. Article 46 of the Constitution also denotes promoting educational needs of the poor section of society.

Child Labour (Prohibition and Regulation) Act, 1986

This Act has provided for employment of children under hazardous employment as punishable. Any child below the age of 14 years cannot get involved in these kinds of employment. A list has been provided under the Act which specifies which work hazardous and which work is not. The Act has been inspired from Article 24 of the Constitution.

If any person employs a child the same has to be specified to the Factory Inspector along with the certificate specifying that the Act has been fully complied. A Committee is also appointed under the Act that advises the government regarding the matters contained in the Act.

M.C. Mehta v. State of Tamil Nadu[6]

In this it was observed that whenever a child who is below the age of 14 years is employed in a factory which includes hazardous employment, then the compensation must be paid by the owner for this. The amount raised from such compensation will be used for the benefit of that child.[7]

Child Rights Act, 2006

This Act was enacted to protect the children from certain offences such as sexual offences, violence, exploitation, disaster etc. This Act led to the formation of the National and State Commission. The object of the Act was to provide speedy trial for all these offences. It protected the interests of the children.

Prohibition of Child Marriage Act, 2006

The Act makes the child marriage voidable by filling a petition at the court. However in certain cases child marriage is also void in cases where child was forced or sold in marriage. The minimum age for boys is 21 years and for girls is 18 years for marriage under the Act.

Punishment has been prescribed for people who promote child marriage. Provision has been made to provide maintenance to the female child by the male if petition has been filled by him until she gets remarried. The Act also makes the children legitimate who are born under the voidable marriage and the court can decide upon the custody of those children according to their best interests.

Child Marriage Restraint Act, 1929

Under this Act the minimum age of marriage for boys in 21 years and for girls is 18 years. Punishment is prescribed for a male above 21 years of age marrying a child and for male below 21 years but above 18 years marrying a child. The guardian of the child and person who promotes child marriage also commits the offence under the Act and punishment is prescribed for it as well. Court has power to order injunction on child marriage.

Hindu Adoption and Maintenance Act, 1956

Under this Act provisions have been made for adoption of children. A person can only adopt when he is a major and is of sound mind. Provisions have been made so that a child goes in safe hands such that no male can adopt a female unless their age gap is 21 years between them. Same rule is for females adopting male. Once a child is adopted, he severs the relationship with the family of origin. There is always an intervention of courts so that the interests of the child are protected.

Commission for Protection of Child Rights Act, 2005

Under this Act Commission is formed generally known as National and State Commission in order to implement the provisions contained in Child Rights Act, 2006. In this a Chairperson is appointed with other 6 members with other required qualifications. The term of office is 3 years.

There are some necessary functions that need to be played by the Commission. Some of these functions are like to examine and review the safeguards provided for protection of children, inquire into the violations of child rights, study and review the treaties on child rights, promote research on child rights etc.

The Commission has got some powers under the Code of Civil Procedure. They can recommend the government to start any proceeding against any person who violates child rights. They also have to submit reports to the government.

Conclusion

We can conclude that there are many laws which have been made for the benefit of the children. The law makers have considered most of the serious issues that can be an obstacle in the development of children and have made law on it for their benefit. Internationally a lot Conventions have been made for the benefit of children along with the Committees that have been formed to report complaints on violation of these Conventions. In India as well provisions have been made to protect the children from the offences that can occur to them. Special provisions have been made for children who have committed offences. 

However all these laws are not implemented properly. Appropriate governments need to take steps for implementation of these laws otherwise the benefit of it cannot reach to the children who need them. They need to work with Non- Governmental Organisations and have to be strict for implementation to cover the loop holes.

   References

  1. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
  2. https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
  3. https://www.humanium.org/en/convention/protocol/
  4. https://www.un.org/en/universal-declaration-human-rights/
  5. https://www.humanium.org/en/further-conventions/
  6. http://www.legalserviceindia.com/legal/article-11-protection-of-childrens-human-rights-in-india.html
  7. https://www.jagranjosh.com/general-knowledge/what-are-the-rights-of-the-children-in-india-1498225913-1
  8. Dr. H.O. Agarwal, Human Rights, Central Law Publication, 6th Edition, 2018
  9. Prof. N. V. Paranjape, Criminilogy Penalogy and Victimology, Central Law Publications, 17th Edition, 2018
  10. Dr. S.C. Tripathi and Vibha Arora, Law Relating to Women and Children, Central Law Publication, 6th Edition, 2017

Questions

  1. Explain the first Convention that protected the interests of children?
  2. Explain the various International Conventions protecting child rights?
  3. Explain the relationship between child human rights and Indian Constitution?
  4. Explain the laws that have been made both Internationally and within India for children who commit offences?
  5. Explain The Child Rights Act, 2006 and Commission formed under it for its implementation?

[1] AIR 1986 SC 1873

[2] AIR 1983 SC p.1473

[3] AIR 1960 Punj. 482

[4] Criminal Appeal no. 1217-1219/2017

[5] Writ Petition (C) No. 416/2012

[6] AIR 1997 SC p.699

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