Role of Judiciary in Protection of Rights of the Children
The most essential way to keep the child rights safe is by maintaining the existing role of the judiciary. Children’s are regarded as the lovely gift to humans. Children’s seems to be the great provider for the human output, and the society will feel happy with them. When these children were neglected by the society, it also means to the loss of the whole society. As per the Indian Constitution, Article 14 deals that equality before law and equal protection of law to all with including the children. The convention like the United Nation Convention on the rights of the child 1989 is seems to be one of the most necessary agreement which says about the rights of the children. The Judiciary plays an important role in the protection of fundamental rights of the citizen and non-citizens alike. The concepts of rights of the children was not communicated while making the constitution, but now in this modern era this concept was intensively discussed and debated. And now the Constitution of India also guarantees certain child rights covering the basic issue, like health, education, protection from exploitation and hazardous employment, child trafficking, child abuse, etc. This paper will discuss on some of the issues and challenges faced by children and the Role of Judiciary in Protection of the Rights of the Children.
I. Introduction
“I am the child. All the world waits for my coming. All the earth watches with interest to see what I shall become. Civilization hangs in the balance. For what I am, the world of tomorrow will be. I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail. Give me, I beg you, that I may be a blessing to the world”. –
- Mamie Gene Cole
The role of the India Judiciary and the scope of judicial interpretation have expanded remarkably in recent times, partly because of the tremendous growth of statutory intervention in the present era. The judiciary plays an import role in the protection of fundamental rights of the citizen and non-citizens alike. The twin safeguards of equality before law and equal protection of laws are acknowledge as two of the most important pillars of human rights of the universe of freedom that is where ever freedom to assert human rights is recognized, whether under an unwritten or a written constitution. India is the largest democracy in the world, a sovereign, socialist, secular democratic and republic with a comprehensive charter of rights written into its constitution. The India Constitution lays down base on which its foreign policy should be constructed and its international obligations respected. In this modern era Judicial Activism emerged as tool for protecting Right of the Children including protection from sexual exploitation, child trafficking, child abuse etc. The function of the court was mainly to declare the pre- existing law or to interpret the statutory law. On the other hand, the realist movement in the united state the latest branch of socological jurisprudence which concentrates on decision of law.
Research Methodology
The Methodology adopted by the Investigators for the preparation of this paper on the subject “Role of Judiciary in Protection of Rights of the Children; A Socio-Legal Study” is Doctrinal or Non-Empirical Legal Research. The research is mainly based on the theoretical analysis of the topic and uses only the Secondary sources such as Books, Magazines, News papers, Reports and Publications of various Associations, Research Scholars, Universities and the Central and State Governments.
The Investigators has collected lot of materials relating to the topic by visiting libraries like Central Library of Apex Professional University, Lakhminath Bezbarua Library of Dibrugarh University and visiting internet café.
II. Legal entitlement of children and judicial response in india
Children on account of their tender age and immature mind need special care and protection and freedoms that should be afforded to all persons below the age of 18 regardless of race, colour, gender, language, religion, opinions, origins, wealth, birth status or ability and therefore apply to all people everywhere. They have certain special rights and legal entitlements that are being acknowledged nationally and internationally. The India Constitution lays down base on which its foreign policy should be constructed and its international obligations respected. In this modern era Judicial Activism emerged as tool for protecting Right of the Children including protection from sexual exploitation, child trafficking, child abuse etc. The Constitution of India recognized the rights of children and included several Articles dealing with their liberty, livelihood, and development of childhood, non-discrimination in educational spheres, compulsory and free education and prohibition of their employment in factories, mines and hazardous industries.
1. PROTECTION OF CHILDREN UNDER IPC: The Indian Penal Code, 1860 finds that no child below the age of seven may be held criminally responsible for an action.2 In case of mental disability or inability to understand the consequences of one's actions the criminal responsibility age is raised to twelve years.3 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 than fifteen.4 With regard to protection against kidnapping, abduction and related offenses the given age is sixteen for boys and eighteen for girls. According to section 82 and 83 of IPC, deals with that nothing is an offence which is done by child under the age of seven or above the age of seven but below the age of twelve. It seems that at this age children will not attain maturity to discriminate what is right and wrong. They will not aware of the results of their acts.
2. RIGHT TO EDUCATION OF CHILDREN: According to Article 21A 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. Article 51(k) states the parents/guardians of the children between the ages of six and fourteen should provide them with opportunities for education. Also in the international law the right to education in reflected in Article 26 of the Universal Declaration of human rights and Article 13 and 14 International Covenant on Economic, Social, and Cultural Rights.
3. PROTECTION OF CHILD FROM LABOUR: 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.
4. PROTECTION OF CHILD FROM MARRIAGE : 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. These Acts ensure that child marriage practice completely removed from the society.
5. JUVENILE JUSTICE: The Juvenile Justice (Care and Protection) Act, 2000 is enacted as human rights legislation and it is now in force in all State uniformly, repealing the entire Children’s Act enacted by states individually. This legislation deals with the two types of juveniles, “Juvenile in conflict with law” as defined under Section 2(1) and child in need of care and protection as defined under Section 2(d). A juvenile or a child as defined under Section 2(k) is a person who has not attained the age of 18 years. The penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. Under section 15 of the Act is a special provision that child offenders commiting heinous offences under the age group of 16-18 years. The way in which a child is protected from all the external threats. In Sheela Barse v. Union of India,5 Ms. Sheela Barse, a dedicated social worker took up the case of helpless children below age of 16 illegally detained in jails. She petitioned for the release of such young children from jails, production of information as to the existence of juvenile courts, homes and schools and for a direction that the District Judges should visit jails or sub-jails within their jurisdiction to ensure children are properly looked after when in custody. The Court observed that children in jail are entitled to special treatment. Children are national assets and they should be treated with special care. The Court urged the setting up of remand and juvenile homes for children in jails. In Sheela Barse v. Secretary Children Aid Society6 the Supreme Court came forward to protect the rights of the children in the observation homes.
6. RIGHT AGAINST EXPLOITATIONS: The Supreme Court while interpreting Article 23 prohibiting forced labour struck a below to the system of bonded labour and pledging of Child labour. The Supreme Court also held when interpreting that Article, that nonpayment of minimum wages would amount to “forced labour” and forced labour is prohibited under by Article 23 of the Constitution. This is another shot in the arm for those who are fighting for better service conditions for child labour. Article 24 prohibits employment of children below the age of 14 in any factories, mines or in any other hazardous occupations. This Article came up for consideration in Salal Hydel Project Case,7 where the Supreme Court had an excellent opportunity of interpreting the true meaning and content of Article 24. The Supreme Court held that though the Employment of Children Act, 1938 did not include the construction work on projects because the construction industry was not a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation under Article 24 and children under 14 could not be employed in a hazardous occupation. The Supreme Court in its decision in “M.C.Mehta v. State of Tamil Nadu”8 dealt with child labour working in Match Industries at Sivakasi (Tamil Nadu) directed that children should not be employed in hazardous jobs in factories for manufacture of match boxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.
7. RIGHT TO HEALTH: Article 38 of Indian Constitution imposed liability on State that states will secure a social order for the promotion of welfare of the people but without public health we cannot achieve it. It means without public health welfare of people is impossible. Article 39(e) provides 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) stated 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.
8. RIGHT TO EQUALITY: The fundamental fights are guaranteed to protect the basic human rights of all citizens of India and are put into effect by the Courts, subject to some limitations. One of such fundamental rights is the Right to Equality. Right to Equality Article 14 refers to the quality in the eyes of law, discarding any unfairness on grounds of caste, race, religion, place of birth sex. It also includes equality of prospects in matters of employment, abolition of untouchability and abolition of titles.9 All citizen including the children should be treated equally treates before the law and give equal protection of law without and discrimination. As also Article 15 of The Indian Constituion prohibits discrimination. In Gaurav Jain v. Union of India,10 the Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its Registry.
9. ADOPTION OF CHILDREN:The Supreme Court of India in Lakshmi Kant Pandey v. Union of India,11 has been initiated on the basis of a letter addressed by one Laxmi Kanta Pandey, an advocate, complaining of mal-practices indulged in by social organizations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The letter referred to a press report based on “empirical investigation carried out by the staff of a reputed foreign magazine” called “ The Mail” and alleged that not only Indian children of tender age are under the guise of adoption “exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents.” With object of ensuring the welfare of the child Justice Bhagwati directed the Government and various agencies to follow some principles as their constitutional obligation to ensure the welfare of the child. This is an extremely important case relating to the adoption of Indian children by persons inside and outside India. In the absence of legislation, the Supreme Court framed elaborate guidelines in the matter. There was no law to regulate inter-country adoptions and such lack of legal regulation could cause incalculable harm to Indian children. Considering the possibility of child trade for prostitution as well as slave labour, legal regulation of such adoptions was essential. Therefore, Justice Bhagwati created a scheme for regulating both inter-country and inter-country adoptions. The Supreme Court held that any adoption in violation of or noncompliance with may lead adoption to be declared invalid and expose person concerned with to strict action including prosecution. For years, social activists have used these directions to protect children and promote desirable adoptions. The Government of India framed a notional policy in this regard.
10. SEXUAL EXPLOITATION OF CHILDREN: The human rights for women, including girl child age, therefore, inalienable, integral and indivisible part of universal human rights. All forms of discrimination on ground of gender are violative of fundamental freedoms and human rights. It would, therefore, be imperative to take all steps to prohibit prostitution. Eradication of prostitution in any form is integral to social weal and glory of womanhoods. Success lies upon effective measures to eradicate root and branch of prostitution. In Vishal Jeet v. Union of India,12Supreme Court in this case deals with some seminal questions relating to the sexual exploitation of children. Hence it has been observed that it is highly deplorable and heart rending to note that many poverty stricken children and girls in the prime age of youth are taken to the flesh market and forcibly pushed into flesh trade which is being carried on in utter violation of all cannons of morality, decency and dignity of mankind. In Gaurav Jain v. Union of India,13 the Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any prestigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its Registry. Sakshi v. Union of India,14 in this Public Interest Litigation, the Supreme Court of India asked the Law Commission to consider certain important issues regarding sexual abuse of children submitted by the petitioner and the feasibility of amendment to 375 and 376 of IPC. After long debate new enactment, The Protection of Child from Sexual Offence Act, 2012 (POCSO) came into existence to protect male and female child from all form of sexual abuse.15
III. Conclusion
Children constitute the nation’s valuable human resources. The future well being of the nation depends on how its children grow and develop. The great poet Milton said “Child Shows the man as morning shows the day”. So it is the duty of the society to look after every child with a view to assuring full development of its personality. Children are the future custodians and torch bearers of the Society; they are the messengers of our knowledge, cultural heritage, ideologies and philosophies. Children are really future components in the form of great teachers, scientists, judges, rulers, doctors, planners, engineers, politicians on whom the entire society founded (rests). Unfortunately millions of children are deprived of their childhood and right to education and are subjected to exploitation and abuse.
IV. Suggestion
1. Article 24 of the Constitution should be amended as below: “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other employment”.
2. The present title of Child Labour (Prohibition and Regulation) Act, 1986 should be amended as Child Labour (Prohibition and Rehabilitation) Act, so that more focus should be given to rehabilitation rather than regulation.
3. Proviso annexed to section 3 of Child Labour (Prohibition and Regulation) Act, 1986 should be amended to prevent the misuse of this provision by employers under the heading of family occupations and no exceptions should be provided. Section 3 of the Act, should be amended as, “it shall be presumed that occupier is also the employer for the purpose of the Act and the onus to prove that the child is a member of his or her family would rest on the occupier”.
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V. References
1. Basu D.D., Commentary on the Constitution of India, Eighth Edition, 2008, Vol.1 to 5 Nexis Butterworths Wadhwa, Nagpur
2. Jain M.P., Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Nagpur (Fifth Edition)(2009).
3. Seervai H.M., Constitutional Law of India,Vol. 1 to 3 Universal Law Publication Co. Pvt. Ltd., Delhi,Fourth Edition, 2008
4. Gajendra Mohapatra, ROLE OF JUDICIARY IN CHILD PROTECTION, Director of Public Prosecutions, Odisha, Bhubaneswar
5. Mamta Rao, Children and crime(s):Role of Judiciary in protection of child rights
6. https://www.researchgate.net/publication/228128557_Role_of_Indian_Judiciary_in_Protection_of_Rights_of_the_Children
7. http://www.dppodisha.nic.in/sites/default/files/ROLE%20OF%20JUDICIARY%20IN%20CHILD%20PROTECTION.pdf
8. http://shodh.inflibnet.ac.in:8080/jspui/bitstream/123456789/2755/6/06_workplan%20and%20methodology.pdf
9. http://shodh.inflibnet.ac.in:8080/jspui/bitstream/123456789/2755/6/06_workplan%20and%20methodology.pdf
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Footnotes
1. Author is a LLM Student at Assam Rajiv Gandhi University Of Cooperative Management, India.
2. Section 82 of the Indian Penal Code, 1860 ↩
3. Section 83 of the Indian Penal Code, 1860 ↩
4. Section 375 of the Indian Penal Code, 1860 ↩
8. AIR 1996 ( JT, 1996 (II) SC 685) 19 ↩
9. Articles 14, 15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality ↩
15. Punishment provided under the Child from Sexual Offence Act, 2012: Penetrative Sexual Assault (Section 3) - Not less than seven years which may extend to imprisonment for life, and fine (Section 4); Aggravated Penetrative Sexual Assault (Section 5) - Not less than ten years which may extend to imprisonment for life, and fine (Section 6); Sexual Assault (Section 7) - Not less than three years which may extend to five years, and fine (Section 8); Aggravated Sexual Assault (Section 9) - Not less than five years which may extend to seven years, and fine (Section 10); Sexual Harassment of the Child (Section 11) - Three years and fine (Section 12); Use of Child for Pornographic Purposes (Section 13) - Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1)) The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. ↩
- Section 82 of the Indian Penal Code, 1860
- Section 83 of the Indian Penal Code, 1860
- Section 375 of the Indian Penal Code, 1860
- AIR 1996 ( JT, 1996 (II) SC 685) 19
- Articles 14, 15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality
- Punishment provided under the Child from Sexual Offence Act, 2012: Penetrative Sexual Assault (Section 3) - Not less than seven years which may extend to imprisonment for life, and fine (Section 4); Aggravated Penetrative Sexual Assault (Section 5) - Not less than ten years which may extend to imprisonment for life, and fine (Section 6); Sexual Assault (Section 7) - Not less than three years which may extend to five years, and fine (Section 8); Aggravated Sexual Assault (Section 9) - Not less than five years which may extend to seven years, and fine (Section 10); Sexual Harassment of the Child (Section 11) - Three years and fine (Section 12); Use of Child for Pornographic Purposes (Section 13) - Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1)) The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences.