CHILD Protection & Child Rights

Who is a Child?

Defining what age a person is or ceases to be a child is a constant debate in the India. The
Census of India considers children to be any person below the age of 14, as do most government
programme. Biologically childhood is the stage between infancy and adulthood. According to the
UNCRC 'a child means every human being below the age of eighteen years unless, under the law
applicable to the child, majority is attained earlier'. This definition of child allows for individual
countries to determine according to the own discretion the age limits of a child in their own laws.
But in India various laws related to children define children in different age limits.

The Indian Penal Code (IPC) 1860 finds that no child below the age of seven may be held
criminally responsible for an action (Sec 82 IPC). In case of mental disability or inability to
understand the consequences of one's actions the criminal responsibility age is raised to twelve
years (Sec 83 IPC). A girl must be of at least eighteen years in order to give sexual consent,
unless she is married, in which case the prescribed age is not less that fifteen. With regard to
protection against kidnapping, abduction and related offenses the given age is sixteen for boys
and eighteen for girls.

According to Article 21-A 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. Lastly
Article 51(k) states the parents/guardians of the children between the ages of six and fourteen
should provide them with opportunities for education.

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. The Motor Transport Workers Act
1961, and The Beedi And Cigar Workers (Conditions Of Employment) Act 1966, both
define a child as a person who has not completed fourteen years of age. The Merchant
Shipping Act 1958 and Apprentices Act 1961 don't define a child, but in provisions of the act
state that a child below fourteen is not permitted to work in occupations of the act. The Mines
Act, 1952 is the only labour related act that defines adult as person who has completed eighteen
years of age (hence a child is a person who has not completed eighteen years of age).

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. This definition of a
minor also stands for both the Hindu Minority and Guardianship Act, 1956 and the Hindu
Adoption and Maintenance Act, 1956. Muslim, Christian and Zoroastrian personal law also
upholds eighteen as the age of majority. The first Juvenile Justice Act, 1986 defined a boy child
as below sixteen years of age and a girl child as below eighteen years of age. The Juvenile
Justice (Care and Protection of Children) Act, 2015 has changed the definition of child to any
person who has not completed eighteen years of age.

International Mechanisms

United Nations Convention on the Rights of the Child

Over history there have been a number of international treaties and documents that outline the
rights of a child. Prior to World War II the League of Nations had adopted the Geneva
Declaration of the Rights of the Child in 1924. The United Nations (UN) took its first step
towards declaring the importance of child rights by establishing the United Nations International
Children's Emergency Fund in 1946 (The name was shortened to United Nations Children's Fund
in 1953, but kept the popular acronym UNICEF). Two years later the UN General Assembly
adopted the Universal Declaration of Human Rights, making it the first UN document to
recognise children's need for protection.

The first UN document specially focused on child rights was the Declaration on the Rights of
the Child, but instead of being a legally binding document it was more like a moral guide of
conduct for governments. It was not until 1989 that the global community adopted the United
Nations Convention on the Rights of the Child, making it the first international legally binding
document concerning child rights. The convention consists of 54 articles covering all four major
categories of child rights: Right to life, Right to development, Right to protection, and Right to
participation. It came into force on the 2nd September 1990.

Today the convention has been ratified by 192 countries becoming the most ratified of all
international Human Rights treaties. India signed and ratified the convention in 1992. The only
two countries who have not ratified the treaty are the United States and Somalia. Somalia has
been unable to ratify due to the lack of a stable government and the US has signed the treaty
showing their intention to ratify.

Following is an overview of the convention.

Preamble: Recognizes many of the principles outlines in the Declaration on the Rights of the
Child such as family as the best environment for a child to grow, the importance of child
protection, best interest of the child, recognizing child participation, etc.

Article 1: According to the convention a child is any person how has not reached the age of
eighteen unless a different age of maturity is specified in any country's law.
Article 2: It is the duty of the state (each country) to uphold the articles in the convention and
apply it to all children regardless of the child's or the family's race, color, sex, language, religion,
political or other opinion, national, ethnic or social origin, property, disability, birth or other
status. The state should protect the child against all forms of discrimination.

Article 3: the state will always act in the best interest of the child while taking into consideration
the rights and duties of the guardians. The state shall ensure all institutions government or not
adhere to this dictum.

Article 4: The state must make laws, implement policies and programme and undertake other
measures to unsure the rights set out in the convention are fulfilled.

Article 5: The state will keep in mind the rights of the guardians of the child or any other family
member or community as in accordance with local customs

Article 6: States recognise that every child has the inherent right to life, and must work to ensure
the survival and development of the child.

Article 7: Every child has the right to a name, birth registration and nationality. As far as
possible every child has the right to know and be cared for by his/her parents. The state should
make laws and provisions especially for stateless children.

Article 8: A child has the right to preserve his/her identity including nationality, name and family
relations without unlawful interference.

Article 9: Every child has the right not to be separated from their parents against his/her will
unless it is in his/her best interest. Any legal proceeding of separation shall be attended by all
involved parties including the parents. The right has the right to maintain contact with his/her
parent as long as it's not against his/her best interest. If the state is the cause of separation than
the parents, child or any other family member has the right to know the whereabouts of the
absent member.

Article 10: Every child and family has the right to enter or leave a state at any time they wish as
long as it is in accordance with the laws of each state. If a child is in the different state as the
parents the child has the right to maintain contact with his/her parent as long as it's not against
his/her best interest

Article 11: The state shall combat child trafficking.

Article 12: The state shall ensure the child's right to form and express views with regard to things
that affect him/her in accordance with the maturity and age of the child. A child shall hence we
allowed to be heard in any judicial proceeding concerning the child directly or indirectly through
a representative
Article 13: Children have a right to free expression and this includes right to information and
ideas of all kinds and in any medium. This is only restricted by the violation of others rights or a
threat to national security.

Article 14: Every child has the right to freedom of thought, conscience and religion. The state
must respect the parents' right to guide the child in this regard. Freedom to manifest ones religion
is only restricted if the act is harmful to others.

Article 15: Every child has the right to freedom of association and peaceful assembly unless the
act is illegal or harmful to others.

Article 16: Children have the right to privacy and the right to be protected by law against such
interference of attacks

Article 17: The state shall ensure that a child has access to national and international information
that is aimed at the child's well being. For example they may encourage mass media to produce
programme that are informational for children and encourage the production of children's books
and magazines.

Article 18: The state shall ensure the recognition of responsibility of both parents to care for a
child as long as it is in her/his best interest. The state shall give appropriate guidance and
assistance to parents to uphold the rights of the child. Children of working parents have the right
to access child-care services.

Article 19: The state shall take all types of actions to protect the child from any form of abuse,
exploitation or neglect. The state shall create system to ensure the child receives all needed
support in form of prevention, protection and rehabilitation.
Article 20: Children have the right to protection by the state when they temporarily or
permanently deprived of their family environment or if the environment has proven to be
harmful for them. The state shall find alternate care for the child such as foster care, adoption or
kafalah of Islamic law. The cultural, linguistic and religious background of the child should be
continued as far as possible.

Article 21: All states shall permit and recognise the process of adoption. Adoption will be carried
out only by a competent authority who will sure the adoption is permissible. Inter-country
adoption will be permitted as an alter form of care only if that care cannot be provided for in the
child's own country. The state must ensure that inter-country adoption does not result in financial
gain, and that both national and international adoption is held to the same safeguards and
standards.

Article 22: Children seeking refugee status and recognised as refuges with or without their
parents shall be granted such a status by the state and have the same rights as all children in
accordance with this convention and any other human rights treaty. The state shall with the
assistance of other international bodies try and reunite the child with his family or provide the
child with the appropriate care.

Article 23: States recognise that children with disabilities (mental or physical) have the right to a
life with dignity and all other rights of this convention. The State also recognises the need to
provide children with disabilities with special care, family assistance, free education, health,
training, etc in accordance with the family's financial situation and aim for the child's social
integration. The state shall also take measure to prevent the disabilities in children.

Article 24: Every child has the right to access health services and attain the highest degree of
health. To do so the state shall reduce the infant mortality rate, ensure medical assistance,
provide prenatal and post natal care of mothers and child, combat diseases and malnutrition,
create awareness of correct health practices, and development preventive measure to protect
children from possible risks. The state shall also abolish all traditional practices detrimental to a
child's health.

Article 25: All treatments administered to children are subject to periodic review.

Article 26: Every child has the right to social security and social insurance. Benefits under state
laws should take into account the economic and social needs of the families.

Article 27: Every child has the right to a standard of living required for his/her development.
Parents have the duty to ensure this standard to the best of their ability. The state shall assist
parents or others responsible for the child who require the help, and secure the maintenance of
the child from those financially responsible within the state or abroad.

Article 28: All children have the right to education. The state shall endeavor to provide free
primary education, encourage different forms of secondary education, make higher forms of
education accessible, make vocational information available and encourage school retention and
prevent drop outs. School discipline should not be in violation of child rights.

Article 29: Child education should be geared towards the complete development of the child, in
accordance with the child's cultural identity and human rights treaties, and to prepare the child
for responsible life in society. It should not be detrimental to the environment. People may be
allowed to establish educational institutes in accordance with these standards.

Article 30: Children of minority communities have the right to practice and adopt the culture,
languages and traditions of their community.

Article 31: Every child has the right to leisure, play and participation in cultural events. The state
should encourage child participation in such events.

Article 32: Children have the right to be protected from economic exportation or any work that is
harmful to their physical and mental development or considered hazardous or dangerous work.
The state must constitute a day that dictates minimum age of employment, conditions of
employment and hours of employment with regards to children.

Article 33: The state should take measure to protect children from substance abuse and prevent
the use of children in the illegal trafficking of such substances.

Article 34: Every child has the right to be protected from sexual exploitation and sexual abuse.
The state must hence prevent the coercion and prostitution of children for such activities as well
as safeguard children from pornographic performances and materials.

Article 35: States shall take measure to prevent the abduction or sale of children for any purpose.

Article 36: The state shall protect children against any other form of exploitation.

Article 37: The state shall ensure that no child is subject to torture or any other cruel inhuman
treatment, no child is deprived of his liberty unlawfully, and a child deprived of his liberty is
entitled to proper care and humane circumstances, and be provided with legal consult if
necessary.

Article 38: The state ensures and respects the rules of humanitarian law during times of conflict.
The state should also ensure that children below 15 do no participate in the hostilities, and refrain
from recruiting them in armed forces.

Article 39: The state should ensure the recovery, rehabilitation and reintegration of child victims
of neglect, exploitation, or abuse, etc.

Article 40: The state shall recognise the right of every child who has committed a crime under
the law to a proper care and reintegration into society. No child shall be accused or penalized for
an act which is not a recognized crime. A child who has been accused of a crime are presumed
innocent, should be informed of the charges against him/her, have the juvenile justice proceeding
immediately without delay, not be compelled to give testimony or admit guilt and the right to
privacy of all proceedings. States should endeavor to establish laws specifically catered to the
needs of children who have been accused or found guilty of any criminal activity and establish a
minimum age of guilt.

Article 41: The articles of this convention will not take priority over any laws national or
intentional that better safeguard the rights of a child.

Articles 42-54: outline the establishment, composition and responsibilities of the Committee on
the Rights of the Child.