mayukhgupta's Profile and details
Mayukh Gupta, a student of 4th year B.A.,LLB(Hons.)Bengal Law College affiliated to the University of Burdwan.
The hallmark of culture and advance of civilisation consists in the fulfillment of our obligation to the young generation by opening up all opportunities for every child to unfold its personality and rise to its full stature, physical, mental, moral and spiritual. It is the birth right of every child that cries for justice from the world as a whole. – Justice V.R. Krishna Iyer1
During earlier times, not much special attention was given towards the development of children. Later on with the change of the times special attention towards the development of children was taken by the many governments of the world. In every civilized society development of children must be given utmost importance because they are the assets of a nation. Children possess certain special physical & mental characteristics for which they need special care & treatment. The Governments of every state shall make policies for the development of children.
Long ago, there were no concern on the part of the government on the development of children & their rights. They have been used as labour from ages. Child labour is not a new term. It is been mentioned in Manusmritis as well. Children were exploited in many ways. There was no formal system of primary education for the children in those days. They used to work in the fields with their parents. With the change of times the ambit of work changed from working in the fields to working in factories, mines, plantations etc. The conditions of children improved a bit during the British period in India. The British Government enacted many legislations which prohibited the working of children in hazardous factories. They also enacted certain legislations for the primary education of the children.
After the Independence of India & commencement of the constitution, children were conferred many rights under the constitution. The Government of India also enacted a number of legislations for the protection of the rights of the children in India.
Legal Definition of Child
The term ‘Child’ is not defined in the Indian Constitution. According to Article 1 of the United Nations Convention on the Rights of the Child 1989, ‘a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier’. The legal definition of child tends to depend upon the purpose. There are a number legislations in India which defines the term ‘Child’ depending upon the purpose. Under the Indian Majority Act,1875 the age of majority is eighteen years & in case of a minor for whose person & property a guardian is appointed or whose property is under the supervision of the Court of Wards the age of majority twenty-one years. Under the Child Labour (Prohibition and Regulations) Act, 1986, child means a person who has not completed his fourteenth year of age. Under the Child Marriage Restraint Act, 1926, 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. Under Juvenile Justice (Care and Protection) Act, 2000, ‘Juvenile’ or ‘Child’ means a person who has not completed eighteenth year of age.
United Nations Convention on the Rights of the Child (CRC)
The United Nations Convention on the Rights of the Child (UNCRC) is a comprehensive, internationally binding agreement on the rights of children, adopted by the UN General Assembly in 1989. It incorporates children's civil and political rights (like their treatment under the law), social, economic and cultural rights (like an adequate standard of living) & protection rights (from abuse and exploitation). A child is defined in the UNCRC as a person under the age of 18 years.
There are four main sections to the UNCRC:
· the Preamble, which sets out the major underlying principles of the UNCRC and provides a context for it,
· the substantive articles, which set out the rights of all children and the obligations of governments (Part I, Articles 1-41),
· the implementation provisions, which define how compliance with the UNCRC is to be monitored and fostered (Part II, Articles 42-45) and
· the conditions under which the UNCRC comes into force (Part III, Articles 46-54).
The Preamble of the UNCRC acknowledges the family as the fundamental unit of society and the natural environment for the growth and well-being of children. The Preamble also states that the family should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.
The Substantive Articles
Each of the substantive articles, Articles 1-41, details a different type of right. A common approach to the UNCRC is to group these articles together under the following themes:
1. Survival rights: include the child’s right to life and the needs that are most basic to existence, such as nutrition, shelter, an adequate living standard, and access to medical services
2. Development rights: include the right to education, play, leisure, cultural activities, access to information, and freedom of thought, conscience and religion.
3. Protection rights: ensure children are safeguarded against all forms of abuse, neglect and exploitation, including special care for refugee children; safeguards for children in the criminal justice system; protection for children in employment; protection and rehabilitation for children who have suffered exploitation or abuse of any kind.
4. Participation rights: encompass children's freedom to express opinions, to have a say in matters affecting their own lives, to join associations and to assemble peacefully. As their abilities develop, children are to have increasing opportunities to participate in the activities of their society, in preparation for responsible adulthood.
Within the UNCRC, four articles are afforded special emphasis, as they are basic to the implementation of all other rights. These four articles are often referred to as 'general principles'. These are:
· that all the rights guaranteed by the UNCRC must be available to all children without discrimination of any kind (Article 2);
· that the best interests of the child must be a primary consideration in all actions concerning children (Article 3);
· that every child has the right to life, survival and development (Article 6); and
· that the child’s view must be considered and taken into account in all matters affecting him or her (Article 12).
Constitutional Provisions relating to Children
The framers of our Constitution were well known of the fact the development of the nation can be achieved by the development of the children of the nation & it is necessary to protect the children from exploitation as well. The following are the provisions of the Indian Constitution relating to children:
· Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
· Article 15(3) provides that Nothing in this article shall prevent the State from making any special provision for women and children.
· Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.
· Article 21A provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
· Article 23(1) provides that traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
· Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
· Article 29(2) provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
· Article 39(e) provides that the shall, in particular, direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
· Article 39(f) provides that the shall, in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
· Article 45 provides that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
· Article 47 provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.
· Article 51A(k) provides that it shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
Apart from the Constitution there are a number of legislations which deals with children. The following are some of them:
The Guardian and Wards Act 1890
This Act deals with the qualifications, appointment & removal of guardians of children by the courts & is applicable to all children irrespective of their religion.
The Child Marriage Restraint Act 1929
This Act as amended in 1979 restraints the solemnization of child marriages by laying down the minimum age for both boys & girls. This law is applicable to all communities irrespective of their religion.
The Orphanages and Other Charitable Homes (Supervision And Control) Act 1960
This Act provides for the supervision and control of orphanages and homes for children.
Apprentices Act 1961
This Act lays down qualifications for persons above fourteen years of age to undergo apprenticeship training in any designated trade.
The Child Labour (Prohibition And Regulation) Act 1986
This Act prohibits the engagement of children in certain employment & regulates the conditions of work of children in certain other employment.
The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act 1992
This Act regulates the production, supply and distribution of infant milk substitutes, feeding bottles & infant foods with a view to the protection & promotion of breastfeeding & ensuring the proper use of infant foods & other incidental matters.
The Pre-Natal Diagnostic Technique (Regulation and Prevention of Misuse) Act 1994
This Act provides for the regulations of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic or chromosomal abnormalities or certain congenital malformation or sex-linked disorders & for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide.
The Juvenile Justice (Care and Protection of Children) Act 2000
This Act deals with the law relating to juveniles in conflict with law & children in need of care & protection, by providing for proper care, protection & treatment by catering to their development needs & by adopting a child-friendly approach in the adjudication & disposition of matters in the best interest of children & for their ultimate rehabilitation through various institutions established under the Act.
Policies of the Government regarding Children
The Government of India has made a number of policies regarding the physical, mental & social development of the children of the country. The Government has also made many policies on the health & education of the children. The following are some of the important policies of the Government regarding children:
· National Policy for Children, 1974
· National Policy on Education, 1986
· National Policy on Child Labour, 1987
· National Health Policy ,2002
National Policy for Children 1974
India is one of the few countries in the world which have a written policy for children. This policy declares that the children are the ‘supreme asset of the nation ’.The following are some of the features of the policy:
1. All the children shall be covered under a comprehensive health programme.
2. Programmes to be implemented to provide nutrition to children & remove deficiency from the diet of the children.
3. To provide non-formal education.
4. Special attention to be taken towards the physically challenged, mentally retarded children.
5. All children shall be ensured equality of opportunity.
National Policy on Education 1986
This was second policy on education; the first policy of 1968 was revised by this policy. This policy was regarded as a landmark one. This policy gave highest importance on the Universal Primary Education. It also gave importance to early childhood care & education. It gave emphasis on the need of large-scale investment on the development of children both through Government & through voluntary organisations. Later on a number programmes were undertaken throughout the country like the Operation Black Board, Sarva Siksha Abhiyan etc. The Operation Black Board & Sarva Siksha Abhiyan became very popular all over the country.
National Policy on Child Labour 1987
The National Policy on Child Labour is a landmark endeavour in the progressive elimination of child labour in India.The policy encompasses actions in the field of education, health, nutrition, integrated child development & employment. The National Policy on Child Labour is set under the following three heads:
· The Legislative Plan.
· Focusing of general programmes for benefiting child labour wherever possible.
· Project-based plan of action in areas of high concentration of child labour engaged in wage/quasi-wage employment.
National Health Policy 2002
The first policy on health, 1983 aimed at achieving ‘health for all by the year 2000 ’. The second policy on health, 2002 envisages giving priority to school health problems which aimed at health education & regular health check-ups at schools. The principle feature of this policy was to prevent communicable diseases like HIV/AIDS &to provide for universal immunization of children against all major preventable disease.
M.C. Mehta Vs. State of Tamil Nadu and Others2
In this case, Indian activist plaintiff M.C. Mehta sued the state of Tamil Nadu to improve the working conditions for children and to provide children rescued from hazardous labor with an education. The Hon’ble Supreme Court issued a landmark ruling that the Indian Constitution (Article 24) requires the state to endeavor to provide a free, compulsory education for children. The Court found that children under the age of 14 could not be engaged in hazardous employment, and ordered the government to establish and maintain a child labor rehabilitation welfare fund. Employers that violated child labor laws would be required to make a deposit into the fund; the government would also be required to offer the parent of each child engaged in hazardous employment a job, or else make a deposit into the fund.
Bandhua Mukti Morcha Vs. Union of India and others3
In this case, the Supreme Court held "Therefore, whenever it is shown that the labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is, therefore, a bonded labour. This presumption may be rebutted by the employer and also by the State Government if it so chooses but unless and until satisfactory material is provided for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of provisions of the Act. The State Government cannot be permitted to repudiate its obligation to identify, release and rehabilitate the bonded labourers on the plea that though the concerned labourers may be providing forced labour, the State Government does not owe any obligation to them unless and until they show in an appropriate legal proceeding conducted according to the rules of adversary system of justice, that they are bonded labourers."
J.P.Unnikrishnan & Others Vs. State of Andhra Pradesh & Others4
In this case, the Supreme Court held that citizens of this country have the fundamental right to education and the said right flows from Article 21 of the Constitution. This right is, however, not an absolute right. Every child/citizen of this country has the right to free education until he completes the age of fourteen years. Thereafter, his right to education is subject to limits of the economic capacity and development of the State.
Mohini Jain vs. State of Karnataka5
In this case, the Supreme Court was called upon to deal with the question of right to education under Article 41 and once again the Court emphasized the importance of Directive Principles by holding that the right to education is concomitant to the Fundamental Rights and made the following observation:
“The directive principles which are fundamental in the governance of the country cannot be isolated from the Fundamental Rights guaranteed under Part III. These principles have to be sent into the Fundamental Rights. Both are supplementary to each other. The State is under a constitutional mandate to each other. The State is under a constitutional mandate to create conditions in which the Fundamental Rights guaranteed to the individuals under Part III could be enjoyed by all. Without making “Right to education” under Article 41 of the Constitution a reality, the Fundamental Rights under Chapter III shall remain beyond the reach of large majority which is illiterate. The Fundamental Rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is education and is conscious of his individualistic dignity”.
The National Policy for Children, 1974 declared that the children are the ‘supreme asset of the nation ’. Children are the future of the nation. No civilized country can ever develop without proper health & educational development of their children. The Government must divert its policies towards the development of children. All prominent policies of the Government must contain provisions relating to children. The Constitution of India aimed at making India a Welfare State & for achieving it the development of the children of our nation is essential.
· Basu, Dr Durga Das, Case Book on Indian Constitutional Law, 2nd ed. (2007), Kamal Law House, Kolkata.
· Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency, Allahabad.
· Rai, Kailash, the Constitutional Law of India,7th ed. (2008), Central Law Publications, Allahabad
· Bajpai Asha, Child Rights in India, 2nd ed. (2006), Oxford University Press
· Rao Mamta, Law relating to Women & Children, 2nd ed. (2008), Eastern Book Company, Lucknow
· http://www.childrensright.ie/indwx.php?q=childrens-rights-ireland/un-convention-rights-child accessed on 18th June 2010.
· http://www.crin.org/Law/instrument.asp?InstID=1264 accessed on 19th June 2010.
1. 1.”Jurisprudence of Juvenile Justice: A Preambular Perspective”.
2. AIR 1991 SC 417; AIR 1997 SC 699
3. AIR 1984 SC 802
4. AIR 1993 SC 2178
5. AIR 1992 SC 1858
The author can be reached at: email@example.com