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Laws and Policies for Protection of Interest of Children: A Critical Analysis

Child is considered as an important national asset of a nation as the future of any nation depends on how its children mature and develop. In the present times protection of children from all kinds of exploitation and abuses has become the main objective of our society. There have been many instances of child exploitation in the form of sexual molestation, child marriage, underfeeding, verbal abuse, child battering, child prostitution, child pornography and child labour which indirectly highlights our society’s own failure to protect our future generations. Child protection is regarded as one of the main responsibility of the government as well as the society and considering the challenges and problems faced by the children.

In this paper we have specifically spoken about the various kinds of atrocities faced by children and included a case study, local laws and suggestion on child rights in India.

Introduction:
The question of child’s rights has emerged as one of the most vibrant issues for discussion in this new millennium. The fact remains that even today children are a part of the disadvantaged minority group so far as realization of human rights and social justice are concerned. The main reason for this lacuna is that children are still not a complete political entity in true sense of the term. Besides, they are generally physically, mentally and economically defenseless. In this rapidly changing age of globalization, taking care of child’s right at every stage has taken a back seat. This not only affects the whole value system, but also their present social and economic needs. No doubt that the future of humanity depends on children to a large extent, even then a very partial and parochial approach has been followed towards bringing them on the mainstream of social and political agenda.

This marginalization takes even a much worse turn when child is either orphan, loner, a destitute, a homeless, a child labour, a bonded labour, a domestic help, a street child, a physically or a mentally challenged child. In such circumstances, they remain mostly in uncared state and became highly vulnerable to crimes which are perpetrated against them. Violations of Child Rights are hooked to social wrong. It ranges from actual crimes to neglect by society and unsatisfactory parenting, innocence, inexperience, wrong exposure, improper care, lack of good guidance and non existence of good social security system are some of the major reasons for children’s continued vulnerability and exploitation.

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’3. 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.

The children are the greatest gift of God to man, our most precious and important assets. The welfare and development of any community depends largely on the health and well being of its children. It has been said ‘who hold souls of the children holds the nation’.4 The physical and mental health of a nation is determined largely in the manner in which it is shaped in early stages. Justice V.R. Krishna Iyer says that it is our obligation to the generation by opening up all opportunities for every child to unfold its personality and rise to its full stature physical, moral, mental and spiritual and it is the birth right of every child that cries for justice from the world as a whole.

During World War-ll Winston Churchill said “there is no finer investment for any community than putting milk into babies.” This appeal to the people everywhere, this fundamental faith in Juvenile Justice, this reorganization of the worth of the infants born and unborn, is the beginning of Juvenile Justice, says Justice Krishna Iyer.

Major Child Issues In India

# Child labour.
# Girl Child.
# Malnutrition.
# Poverty.
# Illiteracy.
# Child Marriage.
# Child Trafficking.
# Gender Inequality.

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:
Constitutional Guarantees that are meant specifically for children include:
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 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 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.

Besides, Children also have rights as equal citizens of India, just as any other adult male or female:
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 Right against discrimination

Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 23 Right to being protected from being trafficked and forced into bonded labour.

Article 29 Right of minorities for protection of their interests.

Article 46 Right of weaker sections of the people to be protected from social injustice and all forms of exploitation.

Article 47 Right to nutrition and standard of living and improved public health.

Other Legislations:

Apart from the Constitution there are a number of legislations which deals with children. The following are some of them:
The Children (Pledging of Labour) Act, 1933
The Act was enacted during pre-independence era but remains in force. Object of the Act is eradicate the evils rising from pledging the labour of young children, An agreement to pledge the labour of children below 15 years by a parent or guardian of a child in return for any payment or benefit is void.8, Act penalize both parent or guardian and employer in case of pledge of labour of the child. Employer is liable for a fine of Rs.200/- 9and parent or guardian is liable for fine upto Rs.50/-

The Employment of Children Act, 1938
This is the earliest unrepealed legislation on the statute book controlling the employment of under aged persons in certain types of occupation. It provides: No child who has not completed 15 years of age can be employed in any occupation connected with transport of passengers, goods or mail by railways, or a port authority within the limit of a port12. Limited protection to the children who are within 15-17 years of age. This protection is not applicable to children who are employed as either apprentices or are receiving vocational training.

The Factories Act, 1948
The first Welfare Legislation passed by the Britishers was Factories Act,1881. The implementation of the Act was restricted: The Act was again amended in 1948 and the key

features are as follows Prohibits the employment of children below 14 years of age in factory14. Factory covers the establishment, which employs 10 or more workers with the aid of power or 20 or more workers without the aid of power15. Persons who are between the 14 and 15 years, they can be employed under following restrictions provided under Section 68, 69 and 71 of the Act: Such persons should have certificate of fitness issued by a Surgeon and should carry a token giving a reference to such certificate.16 # The certifying Surgeon should follow the procedure laid down in Section 69. # They should not work at night i.e. 12 consecutive hours including the period from 10 PM to 6 AM.

The Mines Act, 1952
The scope of Mines Act is limited. Applies to excavation where operation for the purpose of searching for or obtaining minerals has been or is carried out.19 Not only prohibits the employment of any ‘child’20 but even presence of a child in any part of mine which is below ground or in any open cast working in which mining operation is carried on.21 Adolescent who has completed the age of sixteen years is allowed to work only if he has a medical certificate of fitness for work.22 Certificate is valid for 12 months only.

The Apprentice Act, 1961
Object of the Act is to provide for the regulation and control of training of apprentices in trade and for matters connected therewith24.‘Apprentice’ is a person who is going apprenticeship training in a designated trade in pursuance of contract of apprenticeship. No person is qualified for being engaged as an apprentice to undergo training unless he has completed the age of 14 years and satisfies the others standards of physical fitness and education as may be prescribed. If the apprentice is minor his guardian is required to enter into a contract of apprenticeship with the employer and it shall be registered with Apprenticeship Advisor.

The Child Labour (Prohibition and Regulation) Act, 1986
The Act is an outcome of various recommendations made by a series of Committees.26 There was a constant demand in favour of a uniform comprehensive legislation to prohibit the engagement of children in certain other employments to achieve this goal, parliament enacted the Child Labour (Prohibition and Regulation ) Act, 1986

(CLPRA) which came into force on 23 December 1986. The objectives of Child Labour (Prohibition and Regulation) Act, 1986 are:
# Banning the employment of children i.e. those who have not completed their fourteenth year, in specified occupation and processes.
# Laying down procedures to decide modifications to the schedule of banned occupation or processes.
# Regulating the conditions of work of children in employment where they are not prohibited from working.
# Laying down enhanced penalties for employment of children in violation of the provisions of this Act and other Acts which forbid the employment of children.

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.

Right to Education (RTE) Act, 2009
Free and compulsory education to all children of India in the 6 to 14 age group. No child shall be held back, expelled or required to pass a board examination until the completion of elementary education.If a child above 6 years of age has not been admitted in any school or could not complete his or her elementary education, then he or she shall be admitted in a class appropriate to his or her age. However, if a case may be where a child is directly admitted in the class appropriate to his or her age, then, in order to be at par with others, he or she shall have a right to receive special training within such time limits as may be prescribed. Provided further that a child so admitted to elementary education shall be entitled to free education till the completion of elementary education even after 14 years.

Proof of age for admission: For the purpose of admission to elementary education, the age of a child shall be determined on the basis of the birth certificate issued in accordance with the Provisions of Birth. Deaths and Marriages Registration Act 1856, or on the basis of such other document as may be prescribed. No child shall be denied admission in a school for lack of age proof A child who completes elementary education shall be awarded a certificate. Call need to be taken for a fixed student–teacher ratio. Improvement in the quality of education is important.

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.30 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 ’.31The following are some of the features of the policy:
# All the children shall be covered under a comprehensive health programme.
# Programmes to be implemented to provide nutrition to children & remove deficiency from the diet of the children.
# To provide non-formal education.
# Special attention to be taken towards the physically challenged, mentally retarded children.32
# 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 The Rights Of Children in India children both through Government & through voluntary organizations. 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.

Judicial Response:
M.C. Mehta Vs. State of Tamil Nadu and Others
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 others
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 & Others
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 Karnataka
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”.

Vishal Jeet vs. Union of India
H'onble Supreme Court issued directions to the state Government for setting up rehabilitate homes for children found begging in streets and also the minor girls pushed into 'flesh trade' to protective homes."

Gaurav Jain vs. Union of India
H'onble Supreme Court to rehabilitate children and child prostitutes after conducting in depth study of matter .Furthermore juvenile homes should be used for rehabilitating child prostitutes.

People’s Union Democratic Reforms Vs. Union Of India (Asiad Case)
Justice P.N.Bhagwati,(1) Begar means compulsory work without payment (2)Non-payment of minimum wages comes in the ambit of forced labour.(3) “The word ‘force’ ought to interpreted to include not only physical or legal force but also force arising from compulsion of economic circumstances , which leave no choice of alternative to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wages.(4)Articles 17,23 and 24 are also enforceable against private persons. In this case it is the constitutional obligation of the state to provide protections.(5) Construction works are hazardous .So employment of child below the age 14 years in construction works is violation of Article of Article 24 .

Sanjit Roy vs. State of Rajasthan
Justice, P.N.Bhagwati, Workers were engaged by Public Works Department, Rajasthan and they were not being paid minimum wages. The Court said that non-payment of minimum wages comes under the category of forced labour. Justice P.N.Bhagwati, “The State cannot be permitted to take advantage of the helpless condition of the affected persons and extract labour or service from them on payment of less than the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of persons who are reduced to a state of helplessness on account of drought and scarcity conditions.”

Neeraja Chaudhary vs. State of Madhya Pradesh
Justice P.N. Bhagwati, “Whenever it is found that any workman is forced to provide labour for no remuneration or nominal remuneration, the presumption would be that he is a bonded labourer unless the employer or the State Government is in opposition to prove otherwise by rebutting such presumption.” The Court stressed on released and rehabilitation of bonded labourer.

State of Gujarat vs. Hon’ble High Court of Gujarat
All types of prisoners including prisoners punished for rigorous imprisonment would be entitled to get minimum wages. Otherwise, it would be beggar.

Labourers Working on Salal Hydro-Project vs State of Jammu & Kashmir
Justice P.N.Bhagwati Same Construction works are hazardous. So employment of child below the age 14 years in construction works is violation of Article of Article 24.

Conclusion And Suggestion:
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 thereby they are subjected to exploitation and abuse.46

Suggestion
# 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.
# Every State Government shall frame Rules under the Right to Education Act, 2009 immediately for the proper implementation of the provisions of the Act.

# Government of India should ratify the Convention No.182 and Recommendation No.190 which deal with the “Prohibition and Immediate Action for the Elimination of the Worst Form of Child Labour”. The Convention was adopted in 1999 but the Government has not yet ratified it.

# The Employment of children in any other employment including Agricultural /Farm Sector should be made a cognizable offence, non- bailable and non compoundable.

# Government should encourage the NGOs for elimination of child labour by granting proper budget periodically and accountability should be fixed on NGOs to ensure that the funds are utilized for the purpose for which it is given.

# The Judiciary should be more sensitive in dealing with child labour cases. The general rule of ‘benefit of doubt’ cannot be given to the offending employers. When guilt is proved, offending employer should be punished with imprisonment and not with fine. In punishment policy, sentence of imprisonment should be made a general rule and imposing fine should be an exception. This deters the employers. Further there is a need to increase the conviction rate.

Reference
Book Source

# M.P.Jain, Indian Constitutional Law (Kamal Law House, Calcutta, 5th edn., 1998).
# Kailash Rai, Constitutional Law of India (Central Law Publications Allahabad 7th edn.,2008),
# Rao Mamta, Law relating to Women & Children (Eastern Book Company Lucknow 2nd edn., 2008).
# Malik & Raval, Law and Social Transformation (Allahabad Law Agency, 3rd edn.,2012)
# Ishwara Bhat, Law and Social Transformation (Eastern book company, 1st edn.,2009)
# J.N Pandey Constitutuional Law Of India (Central Law Agency Allahabad, 38th edn., 2002)

Net Source
# http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
# http://indiacode.nic.in/incodis/whatsnew/Infant_Milk.htm
# http://www.advocatekhoj.com/library/bareacts/prenataldiagnostic /
# http://haqcrc.org/child-rights/indian-laws-policies/
# http://childlineindia.org.in/child-protection-child-rights-india.htm
# https://labour.gov.in/childlabour/child-labour-policies
# http://indiaholic.blogspot.in/2010/11/conclusion.html
# https://socialissuesindia.wordpress.com/2010/07/15/salient-features-of-the-right-to-education-act-2009/

End-Notes
1. S.Venkateswaran @ Srinivasane., B.A LLB, has completed from Dr.Ambedkar Goverenment Law college Pondicherry. Currently pursuing LL.M International law and Human Rights.
2 Kailash Rai, Constitutional Law of India 203(Central Law Publications Allahabad 7th edn.,2008),
3 Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx (visited on February 25, 2018)
4 Shriniwas Gupta, Rights of Child and Child Labour: A Critical Study, JILI, XXXVII,(1995),p.531.
5 V.R. Krishna Iyer, Jurisprudence of Juvenile Justice: A Preambular Perspective. Quoted in Supra note 1.
6 Ibid.
7 J.N Pandey Constitutuional Law Of India 88 (Central Law Agency Allahabad, 38th edn., 2002).
8 Section 3, The Children (Pledging of Labour) Act, 1933.
9 Section 6, ibid.
10 Section 4, ibid.
11 The Employment of Children Act, 1938, Act No.XXVI of 1938.
12 Section 3(3), ibid.
13 Section 3(2), ibid.
14 Section 67, The Factories Act, 1948.
15 Section 2(m), ibid.
16 Section 68, ibid.
17 Section 71(i)(6), ibid.
18 Act No.35 of 1952.
19 Section 2(j), ibid.
20 Child means a person who has not completed 15 years.
21 Section 45(i), ibid.
22 Section 40(i), ibid.
23 Section 41 (i), ibid.
24 The Apprentices Act, 1961, Preamble.
25 Section 4(i), ibid.
26 The National Commission on Labour, 1969, The Committee on Child Labour, 1979, the Gurupadswamy Committee on Child Labour 1976 and the Mehta Committee, 1984.
27 Available at http://indiacode.nic.in/incodis/whatsnew/Infant_Milk.htm (visited on February 25, 2018)
28 Available at http://www.advocatekhoj.com/library/bareacts/prenataldiagnostic/ (visited on February 25, 2018)
29Available at https://socialissuesindia.wordpress.com/2010/07/15/salient-features-of-the-right-to-education-act-2009/ (visited on February 25, 2018)
30 Available at http://haqcrc.org/child-rights/indian-laws-policies/ visited on (visited on February 25, 2018)
31 Available at http://childlineindia.org.in/child-protection-child-rights-india.htm visited on (visited on February 26, 2018)
32 Malik & Raval, Law and Social Transformation 203 (Allahabad Law Agency, 3rd edn.,2012)
33 Ishwara Bhat, Law and Social Transformation 192(Eastern book company, 1st edn.,2009)
34 Available at https://labour.gov.in/childlabour/child-labour-policies visited on (visited on February 26, 2018)
35 AIR 1997 SC 699
36 AIR 1984 SC 802
37 AIR 1993 SC 2178
38 AIR 1992 SC 1858 39 AIR 1990 SC 1412 40 AIR 1997 SC 3021
39 AIR 2002 SC 2112 42 AIR 1983 SC 328 43 AIR 1984 SC 1099 44 AIR 1998 SC 3164 45 AIR 1984 SC 177
40 Available at http://indiaholic.blogspot.in/2010/11/conclusion.html visited on (visited on February 26, 2018)

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