Rights of Children

Article 24 of the Indian constitution provides that no child below the age of 14yrs can be
employed in factories, mines or hazardous place of work. However, new laws have been
made against child labor, which provide that along with the above mentioned, a child
cannot be employed as help domestically, in shops, and restaurants etc, and puts a
complete ban on child labor.

Besides the above mentioned rights/articles, there are various provisions of law, which
though do not talk about special rights of children in India, but along with adults, children
also get security for their general rights.

The UN has been talking about the rights of children and has held conventions on
children’s rights. India has become a co-signatory of UN Charter of Children’s Rights.
Some of the important provisions of this charter are as follows:

1) Article 6 – Right to Life

2) Article 7 – Right to Acquire Nationality
3) Article 13 – Right to Freedom of Expression
4) Article 14 – Right to Freedom of Thought, Conscience and Religion
5) Article 15 – Right to Freedom of Association and Peaceful Assembly
6) Article 16 – Right to Protection of the law against arbitrary or unlawful
interference with his/her privacy, family, home or correspondence
7) Article 26 – Right to benefit from social security
8) Article 27 - Right to a standard of living adequate for the child’s physical, mental,
spiritual and social development
9) Article 28 – Right to Education
10) Article 24 – Right to Enjoyment of highest attainable standard of health and to
facilities for the treatment of illness and rehabilitation of health

Besides this, Article 17 – provides that every child has the right to access to information
and materials and it is also the right of a child to be protected from information and
materials which is harmful to him/her.

11) Article 34 talks about prohibiting child abuse and trafficking

12) Articles 37, 39 and 40 protect a child from torture, exploitation and abuse

The UN Charter on Child’s Rights was created, recognizing the exceptional vulnerability
of child and it was accepted that the essential needs of children should be given topmost
priority in the allocation of resources at all times. It also emphasized on the importance of
the family and the need to create an environment that is conducive to the healthy growth
of a child. It advocated concrete public action and sensitivity on the part of all members
of society and government agencies, at the local, regional and national level, to ensure
protection of children’s rights.
In India, about 1/3 of the population is children. Although we acknowledge the fact that it
is the child which is the future of our country, we have not been able to do anything
significant to protect their rights. The areas of concern related to children and their rights
are:

1) Child Labor
2) Child trafficking and sexual abuse – This is one of the greatest concerns of Indian
society at present. Child trafficking is increasing in our country at an alarming
rate. According to statistics, in the brothels of Mumbai, of the two lakh
prostitutes, around 40, 000 girls are below the age of 18years. Besides this, we
also have practices like Devdasi, quite popular in the states of Maharashtra and
Karnataka, whereby minor girls are married off to God and forced into
prostitution.

Another area of concern is the increasing tourism in India and sexual abuse, both of boys
and girls, by the tourists. It has been found that at times, due to acute poverty, the parents
send their children to middle men, who create a chain with (mostly) foreign tourists and
compel the child to indulge in sexual activities.

Another form of child abuse is pornography, whereby child pornography is becoming

more and more popular. Although Indian criminal laws prohibit pornography completely,
due to the loopholes and lack of connection between information technology rules and
criminal proceedings, no stringent action is left possible.

According to Article 45 of the Indian Constitution, every child is entitled to free and
compulsory education till the age of 14yrs.

It is evident that legislation is one of the main weapons of empowerment of

children. Even though appropriate legislation may not necessarily mean that the
objectives of the legislation will be achieved, its very existence creates an enabling
provision whereby the state can be compelled to take action. Legislation reflects the
commitment of the state to promote an ideal and progressive value system. The notion of
duty also applies to the state. India follows an adversarial legal system with an in-built
bias in favour of the accused who is presumed innocent till proved guilty.

Rights in the Constitution of India :-

The Constitution of India, the fundamental law of the country, came into effect on
26th January 1950. It provides a protective umbrella for the rights of children. These
rights include :-

(i) RIGHT TO EQUALITY [ Article 14 ]

(ii) RIGHT TO FREEDOM INCLUDING FREEDOM OF SPEECH

AND EXPRESSION [ Article 19(1)(a) ]
(iii) RIGHT TO DUE PROCESS OF LAW [ Article 21 ]

(iv) RIGHT AGAINST EXPLOITATION [ Article 23 ]

(v) RELIGIOUS, CULTURAL AND EDUCATIONAL RIGHTS [ Article 29 ]

(vi) RIGHT TO CONSTITUTIONAL REMEDIES [ Article 32 ]

In addition of these basic rights, there are certain fundamental rights especially for
children. These rights are necessary because of their physical and mental immaturity; the
children are especially vulnerable and need special protection.

Article 15 of the Constitution ‘ prohibits discrimination of citizens on the grounds only

of religion, race, caste, sex, place of birth or any of them’. But subsection 3 adds : “
Nothing in this Article shall prevent the state from making any special provision for
women and children.”

Article 24 states that ‘ no child below the age of fourteen years shall be employed to
work in any factory, or any mine, or engage in any hazardous employment’.

Article 39 (9)(e) states that ‘ it is the duty of the state to secure that children of tender age
are not abused and forced by economic necessity to enter vocations unsuited to their age
and strength’.

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Article 39(f) states that the ' state should ensure that children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and dignity.'

Policies and legislations :-

According to Section 20 of the Hindu Adoptions and Maintenance Act, 1956,

a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or
illegitimate children. Further this provision lays down that the legitimate and the
illegitimate child may claim maintenance from his or her father or mother as long as the
child is a minor.

Section 24 of the Guardians and Wards Act, 1890, makes the guardian duty-bound to
look in to the support, health and education of the ward.

Rule 133 of the Islamic Law states that every man is bound to maintain his children and
grandchildren till the time of weaning. After the time of weaning, in the absence of
property, through which they can be maintained, the children and the grandchildren shall
be maintained :
(a) In the case of sons and grandsons who have not attained puberty and unmarried girls,
by the father; and if the father is poor; by the mother; if she is rich, and if both father and
mother are poor, then by the nearest grandparent- paternal or maternal if they are rich.
Such maintenance is subject to reimbursement against the person liable to maintain.

(b) In the case of major children, excluding married daughter disabled on account of
some disease or physical or mental infirmity, by the father only, but if both the father and
mother are rich then by both of them in proportion of 2/3: 1/3.

(c) In the case of illegitimate sons who have not attained puberty and legitimate
unmarried daughters, by the mother only.

Under the Juvenile Justice ( Care and Protection of Children ) Act, 2000, the
competent authority which makes an order for sending a neglected juvenile or a
delinquent juvenile to a juvenile home or a special home or a fit institution may make an
order requiring the parent or other person liable to maintain the juvenile to contribute to
his maintenance, if be able to do so, in the prescribed manner.

Indian Adoption Laws :-

Hindu Adoption and Maintenance Act 1956 (HAMA) :-

It is the only statute in force governing adoption of children and its ambit is
confined to Hindus in India. Section 2 of the HAMA defines who are considered Hindus
for the application of this Act. There is a legal vacuum as regards adoption by or of other
communities in India. The Act came into operation with effect from December 21,
1956.Some of its essential clauses are :-

(i) Only the parents or guardians can give a child in adoption and the person adopting
must have the right to take and be lawfully capable of taking a son or daughter in
adoption.
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(ii) Adoption by a person of unsound mind is no adoption at all.

(iii)A female Hindu can adopt, in her own rights provided that she is not married, or a
widow, or a divorcee, or her husband has ceased to be a Hindu.
(iv) If the adoption is of a son, then the adoptive father or mother must not have a Hindu
son, grand-son, or great grandson living at the time of adoption.
(a) If the adoption is of a daughter, the adoptive father or mother must have a Hindu
daughter or a son's daughter at the time of adoption;
(b) If the adoption if to be made by a Hindu of a minor female then the adoptive should
be at least 21 years older than the minor female child;
(c) If the adoption is to be made by a female Hindu of a minor male child, then the
adoptive mother should be at least 21 years older than the person to be adopted.
(v) The HAMA drastically amended the pristine law of adoption among Hindus,
and unified several forms of adoption which prevailed earlier like Dattaka, Kritrima, etc
into a single form.
(vi) Under this Act, in-country adoption is even now a private act between the natural and
adoptive parents, not requiring scrutiny or permission of the court except when a person
other than the natural guardian is giving the child in adoption.
(vii) Both sons as well as daughters can now be adopted. Legitimate as well as
illegitimate children, whom their parents have abandoned or deserted, can now be
adopted and under this Act, the age of adoption is up to fifteen years.

The Juvenile Justice ( Care and Protection ) of Children Act 2000 :-

The JJ Act 2000 contains provisions relating to rehabilitation and social

integration of children ( Chapter IV). It provides that the rehabilitation and social
integration of a child shall begin during the stay of the child in a children's home or
special home by adoption, foster care, sponsorship, and sending the child to after-care
organization. This Act defines a child as someone who has not attained the age of
eighteen years. It also empowers the Juvenile Justice Board to give a child in adoption
and also carry out such investigations as are required for giving children in adoption in
keeping with the provisions of the various guidelines for adoption issued from time to
time by the state government office. The JJ Act also requires that a child's consent be
taken into consideration before the adoption takes place.

The Guardians and Wards Act (1890) :-

This Act is indirectly invoked by other communities also to become guardians of

children during minority. The statute does not deal with adoption as such but mainly
deals with guardianship, and is to be read along with the respective laws, or as corollary
to the latter. It may be indirectly invoked, in certain cases, to confer legal guardianship of
children during their minority. But the process in not equivalent of adoption; it would
only consider the child as the ward.

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This Act provides that a person may be appointed Guardian in relation to a minor
for its welfare. In doing so the court has to consider matters like age, religion, sex of the
child, capacity and character of the proposed guardian, nearness in relation, relationship
between the two, deceased parents' wishes if any, and child's own preferences, if capable
of forming any. Some of its clauses are that a guardian cannot be appointed for a minor
married girl whose husband is fit and capable of being her guardian and a minor whose
property is under the superintendence of the Court of Wards is competent to appoint a
guardian and a minor whose father is alive and fit to be the guardian in the opinion of the
court. Mother gets preference over the father in case of illegitimate children.

Policies and Action Plans :-

A number of policy initiatives, plans, and programmes relating to children have

been undertaken in India. The policy documents are reference points available for
planning and other interventions. Some major policy and plan documents are the
following :-
(i) National Policy for Children 1974
India is one of the few states which adopted a National Policy for Children. This
Policy declares the nation's children as supremely important assets and is outdated now.
Some of the salient features of this policy were as :-
(i) A comprehensive health programme will cover all children and programmes will be
implemented to provide nutritional facilities to children.
(ii) Free and compulsory education will be provided to all children upto the age of
fourteen years and physical sports and games will also be promoted in schools.
(iii) Children have to be protected against abuse, neglect and exploitation.

(ii) National Policy for Child Labour 1987

This policy was formulated with the basic objective of suitably rehabilitating the
children withdrawn from employment and reducing the incidence of child labour in areas
where there is a known concentration of child labour. This policy consists of three main
ingredients : the legal action plan; focusing of Central government programmes, and
project based plan of action.

(iii) National Plan For SAARC Decade of the Girl Child 1991-2000
This plan identified three major goals :
(i) survival and protection of the girl child and safe motherhood
(ii) overall development of the girl child
(iii) special protection for vulnerable girl children in need of care and protection.

(iv) National Plan of Action for Children 1992

The NPA is a follow-up of the promises made by the global fraternity at the
World Summit for Children. The plan of action identifies quantifiable targets in terms of
major as well as supporting sectoral goals. Some of the major goals for 1999-2000 were:-
(i) Reduction of infant mortality rate to less than ten and in severe
(ii) Reduction in moderate malnutrition among under-5- children by half.
(iii) Improved assistance to children under difficult circumstances.

Measures to help realize the Rights of the Child :

A large number of children in India still live much below the standard set by the
Constitution, national and international law. They suffer from poverty, diseases, famine,
and war, and they also suffer from acts and omissions by their own caretakers, guardians,
and parents. India continues to have the highest number of child labourers globally. There
are more than 500,000 street children nationwide exposed to violation and exploitation.
Education is far from universal.

The continuous decline of sex ratio has been a major cause of concern among the
socially conscious demographers and policy makers. Girls are consistently denied equal
opportunities to attend and complete primary schooling. Hundreds and thousands of girls
are trafficked and used for prostitution in brothels in cities. The phenomenon of the sale
of children is universal. An obstacle in realizing the rights of the child is the debt burden
facing third-world countries like India.

A major obstacle in the realizing of child rights is the low awareness of rights and
laws. Making child rights a reality is possible only when laws relating to children are
known to everyone, right from the implementation authorities to the parents and the
victims. In most cases, the deprived children are not even aware that their rights are being
violated. Also, children need to be made aware of the increasing menace of HIV/AIDS.
The HIV/AIDS pandemic has become an increasing threat to the life of children in India.
It is a huge obstacle in the way of the child's right to survival and development.

Insensitive and inadequate legal interventions with regard to child sexual

exploitation and sexual abuse have to be modified. The definition of child sexual abuse
has many grey areas and it is not flexible enough to encompass a wide range of cultural
contexts. We need stringent legislation to deal with sexual abuse and exploitation. Also
severe action has to be taken against family members who are the main culprits of selling
children and sexually abusing them. The child in prostitution is a victim of paedophiles
who pose as tourists and of traffickers who force them into flesh trade.

Courts also play an important role in promoting the rights of the children and have
ensured the implementation of progressive laws on behalf of the children. There is an
urgent need to introduce health education. The 93rd Constitutional Amendment has been
passed to make education a fundamental right.. Every state will now have to enact a
comprehensive law to implement the provision in the amendment.

The best guarantee that the government will take its responsibilities seriously is
when all sectors of society become involved in the genuine national movement. As the
implications of child rights and the principle of the Convention on the Rights of the Child
start to permeate society, attitudes, assumptions, and values will correspondingly change.
And with greater community awareness comes greater involvement, leading to a
powerful, if informal, labour inspectorate - of families and neighbours, strangers and
friends.