10.

1 - Laws relating to women and child

De ning A Child
-

Constitutional Provisions
- Articles - 

- No context of gender in matters of children, no mention of he or she.

- 14

- 15

- 21

- 21A - elementary

- from 6-14… 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… no liability on parents, but state

- 23 - (Di erent from S. 370A of IPC)

- 24 - (Children below the age of 14 years) - relate to child labour prohibition act,
1986 as amended in 2016… 2 groups in children (under 14 is child, under 18 is
adolescent)… as amended in 2016, under S. 3, child can help in family
enterprise when not disturbing school education

- 39 - Since DPSP, R/W Article 31C… (e) that the health and strength of
workers… 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… (f) 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…. Children have the right of participation during their adoption,
along with a right to protection. In this context, an older child will be sought for
opinion (5 years or above is older child). Thus context of protecting a child
changes…

- 45 - DPSP for below the age of 6 years… early childhood care and education.

- 46 - The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the
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 Scheduled Castes and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation… includes children belonging to this
category

- 47 - 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 and, in particular, the State shall endeavour to bring about prohibition of
the consumption except for medicinal purposes of intoxicating drinks and of
drugs which are injurious to health.

- 51 - The State shall endeavour to… foster respect for international law and
treaty obligations in the dealings of organised peoples with one another……
Thus, international treaties are somewhat given extent 

- 51A (k) - 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

Judicial Approach
- Laxmikant Pandey v. UOI (AIR 1984 SC 469) - Adoption of children… SC ahead
of it’s time… It talked about creating mechanisms to create mechanisms for
adoption… Petitioner contended that children were adopted from foreign nations
and used for prostitution, house work, etc.

- Shiela Barse v. UOI (AIR 1986 SC 1883) - physically and mentally retarded
children… also delinquent children were kept in jails during that time where they
were being exploited… State needs to create a separate space for them.

- M.C. Mehta v. State of TN (JT 1990 SC 263) - Problem of child labour… Children
below the age of 14 cannot be employed un any hazardous industry, mines or
other works and has laid down exhaustive guidelines how the state authorities
should protect…

- Vishal Jeet v. UOI [1990 (3) SCC 318] - prostitution of children… immoral
tra cking prevention act already in place. (Protective home di erent

- Unni Krishnan v. State of AP - Right to free education is only available to children

below the age of 14 years, but after that, obligation of the State to provide
education is subject to the limits of its economic capacity and development…
under A. 21… no 21A during that time

- Gaurav Janin v. UOI [1997 (8) SCC 114] - Children forced into prostitution

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 - Gita Hariharan v. RBI [(1999) 2 SC 228] - Guardianship… law changed in 2010…
Personal law amendment act, 2010, and now mother can be a guardian to

- CEHAT v. UOI (AIR 2000 SC 301) - parental testing for sex determination for
infanticide… 1994 law pre natal diagnostic techniques already in place…
government needs to regulate and curb… Sex determination illegal but other
diagnostic techniques necessary.

(GET NOTES - International)

Child Marriage
- Prevention of Child Marriage Act, 2006

- Male - under 21; Female - under 18

- S. 4 - 8

- S. 9 - male adult marrying a child (above 18 years) - rigorous imprisonment may

extend to 2 years or ne upto rs 1 lakh [here, male adult who is deemed as adult
is above 18… di erent from 21 age set in S. 3]

- S. 10 - solemnises child marriage - rigorous imprisonment may extend to 2 years

or ne upto rs 1 lakh [somewhat nulli ed as child given under S. 3]

- S. 11 - promoting or permitting solemnisation of child marriage - rigorous

imprisonment may extend to 2 years or ne upto rs 1 lakh [under this section,
woman can’t be punished]

- S. 12 - Marriage of minor when null and void… other than these, marriage would
be voidable

- S. 13 - Power of Court… this section is to curb ‘mass child marriages’… District

Magistrate has additional powers to use minimum force… woman can’t be
punished under this section, like S. 11.

- S. 14 -

- S. 15 - o ences cognizable (arrest without warrant) and non-bailable

- S. 18 - protection of action taken in good faith

Child Marriage Prohibition Officer

- Under S. 16

- Appointment how?

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- DUTIES (Important)

- prevent solemnisation

- collect evidence

- etc…

- Power to move court

- age of consent bill was brought which led to Child Marriage Restraint Act, 1929

- They provided penalties

- It talked about stopping solemnisation, but not prohibition of child marriage

- Provisions were lengthy

- India has given a declaration, as per A. 16 (2) of CEDAW… it has accepted in

principle that there must be registration of marriages, but di cult to ascertain
100% registration (Find India’s declaration)

- Shivraj Patel Committee


- Seema v. Ashwani Kumar [2007 (12) SCALE 578] - talked about registration

- Independent Thought v. UOI, 2017

Child Marriage and POCSO

- IPC S. 375 - exception 2 (intercourse with wife over 15 not rape)

- PCM, 2006 - age given as 18… but it does not address sexual relation between
spouses, unlike IPC and POCSO

- POCSO - S. 5 (n) (aggressive penetrative sexual assault)… age is under 18

- Independent Thought v. UOI, 2017 - marital rape in cases of child marriages…

declared S. 375 exception 2 as unconstitutional… changed it to 18 years.

- S. 42A of POCSO - overriding e ect

- Practical problem - person arrested under POCSO… but children were

married… if both the boy and girl don’t admit to it, there cannot be forced
medical examination… in context of marriage, the marriage would only be
voidable under S. 3 of PCM, 2006…

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International Instruments and Children

- UNDHR, 1948

- Article 25 (2)

- Article 26

- International covenant on Economic, Social and Cultural Rights, 1966


- Preamble - “inherent dignity”, “equal and inalienable rights”… applicable to
children’s rights as well

- Article 10 - “protection and assistance”… “care and education of dependent
children”… special measures

- Article 12 - “stillbirth rate”, “infant mortality”

- Article 13 - education… Article 13 (2)(a) - primary education free, compulsory

- International covenant on Civil and Political Rights, 1966 


- generally contains general provisions, which includes children

- Article 2 - rights without distinction… adopt laws to give e ect to those rights,
and provide e ective rights

- Article 14 (1) - criminal justice system… interest of juvenile persons, there must
be separation, promote their rehabilitation… they also look into reintegration in
the juvenile justice act

- Article 10 (3)

- Article 18 (4)

- Article 23 (1), (4)

- Article 24



(ONE ANSWER ON EDUCATION, CUSTODY OR FAMILY, CRIMINAL SYSTEM
WITH RELATION TO ALL INTERNATIONAL LAWS DISCUSSED, THEN INDIAN)


- UNCEDAW - Convention on elimination of all form of discrimination against

women, 1979

- Preamble - refers to UDHR which talks about non-discrimination

- Article 5 (a) - modify social and cultural patterns… which are based on idea of
inferiority or superiority

- Article 5 (b) - interests of children


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 - Article 10 - “Female student drop-out rates”

- Article 16 (1)(d) and (f) - same rights and responsibilities between men and
women as parents in matters of guardianship, wardship, trusteeship, etc.

- Article 16 (2) - child marriage [have to write from 1890, fuloni case… then 1929
act, Five year plans… other stautes then modern day act]


- European Convention on Human Rights, 1950


- Article 1 - ‘Everyone’

- Article 5 (1)(d) - depriving a minor of his or her liberty… permits ‘lawful
detention’ of a minor

- Article 6 (1) - Stipulates that everyone is entitled to a fair and public hearing
and that judgement

- 2 protocol systems within the ECHR… add

- Protocol No. 7 - … in relation to article 5


- African Charter on Human and People’s Rights, 1981


- also known as Banjul charter

- one of the rst international instruments which di erentiates between human
rights as individual rights, and overall people’r rights 

- focus on society, where there is rights as well as duties of children… based on
African culture… emphasises on rights of the family and duties of children
towards families

- Article 29 (1) - incumbent on individual to preserve harmonious development of
family… respect his parents and to maintain in case of need

- Article 18 (3) - ACHPR does not set forth any additional speci c rights for
children, relying instead on existing international protections… Rights in ACHPR
in connection with the individual or every individual… Also, Article 18 (4)


- Protocol to the African Charter on Human and Peoples’ rights on the rights of
women in Africa, 2003

- when ‘girl’ is referred, it is in context of girl child

- Preamble

- Article 2 (1)(b) - to enact and implement legislative measures to prohibit
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 harmful practices

- Article 4 (c) and (d)

- Article 6 (b) to (d)

- Article 11 (4)

- Article 12

- unlike CEDAW, this regional instrument refers to sexual violence of women and
girl child and what is to be done with their rehabilitation


- American convention on Human Rights (Pact of San Jose, Costa Rica), 1969

- Preamble - general rights to all people

- Article 1 - “every human being”

- Article 12 (4) - religious and moral education of their children in accord with
their own conventions

- Article 13 (4) - “moral protection of childhood and adolescence 

- Article 17 (4) and (5) - provisions must be made on the basis of their own
bene ts… emphasised on individuality

- Article 18 - Everyone has right to a given name and to surnames of one or both
parent

- Article 19 - minor child has right to measures of protections… as part of family,
society and State… can’t be suspended during time of war, public danger or
other emergency [Article 27 (2)]… only provision that speci cally talks about
child… possible under Article 4 of ICCPR, 15 of European convention and 27 of
American convention… non-derogable is right to life, derivable is right to fair
trial.


- Convention on rights of child

- Survival and Development


- Article 4 - protection of rights

- 5 - parental guidance

- 6 - survival and development

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 - 7 - registration, name, nationality, care

- 8 - preservation of identity

- 9 - separation from parents

- 10 - family reuni cation

- 14 - freedom of thought, conscience and religion (limited right, not absolute)

- 18 - parental responsibilities, state assistance

- 20 - deprivation of family environment (adoption by muslim women - Shabnam
Hashmi v. UOI, 2013)

- 22 - refugee children (refugee convention, 1951)

- 23 - disabilities (convention on rights of persons with disabilities)

- 24 - health

- 25 - review of treatment in care

- 26 - social security

- 27 - adequate standards of nutrition

- 28, 29 - right to education (26 UDHR, 13 ICSCR, 10 CEDAW)

- 30 - minorities/indigenous people

- 31 - leisure, play

- 42 - knowledge of rights

- Protection 

- 4 (Rights) - Governments must do all they can to make sure that every child in
their countries can enjoy all the rights in this Convention.

- 11 (Kidnapping) - Governments must stop children being taken out of the
country when this is against the law – for example, being kidnapped by
someone or held abroad by a parent when the other parent does not agree… 

- 19 (Violence) - Governments must protect children from violence, abuse and
being neglected by anyone who looks after them.

- 20 (Family environment) - Every child who cannot be looked after by their own
family has the right to be looked after properly by people who respect the child’s
religion, culture, language and other aspects of their life.

- 21 (Adoption) - When children are adopted, the most important thing is to do
what is best for them. If a child cannot be properly looked after in their own
country – for example by living with another family – then they might be adopted
in another country… “Hague adoption convention”

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- 22 (Refugee Children) - Children who move from their home country to another
country as refugees (because it was not safe for them to stay there) should get
help and protection and have the same rights as children born in that country

- 32 (Child Labour) - Children have the right to be protected from doing work
that is dangerous or bad for their education, health or development. If children
work, they have the right to be safe and paid fairly… India has given a
declaration with regards to Article 32 that states that socio-economic situation in
India can’t make child labour go away so it will continue but with restrictions…
child labour prohibition act… R/W provisions of child labour in India

- 33 (Drug Abuse) - Governments must protect children from taking, making,
carrying or selling harmful drugs… In India, must be R/W NDPS act

- 34 (Sexual exploitation) - The government should protect children from sexual
exploitation (being taken advantage of) and sexual abuse, including by people
forcing children to have sex for money, or making sexual pictures or lms of
them.

- 35 (abduction, tra cking) - Governments must make sure that children are not
kidnapped or sold, or taken to other countries or places to be exploited… R/W
‘optional protocol’ of CRC

- 36 (other forms) - Children have the right to be protected from all other kinds of
exploitation (being taken advantage of), even if these are not speci cally
mentioned in this Convention.

- 37 (detention and punishment) - Children who are accused of breaking the law
should not be killed, tortured, treated cruelly, put in prison forever, or put in
prison with adults. Prison should always be the last choice and only for the
shortest possible time. Children in prison should have legal help and be able to
stay in contact with their family… 37 (a) - S. 21 of JJ Act; 37 (c) - child friendly
environment with child in con ict with law or alleged con ict;… JJ Act - S.
10-26, Chapter 9 of JJ Act; Rule 54 of JJ amendment act

- 38 (war and armed con ict) - Children have the right to be protected during
war. No child under 15 can join the army or take part in war… Into Human
Rights Law (38 plus optional protocol)… IHL (additional protocol 1 and 2)…
International Criminal Law (Rome Statute)

- 39 (rehabilitation of child victims) - Children have the right to get help if they
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 have been hurt, neglected, treated badly or a ected by war, so they can get
back their health and dignity.

- 40 (juvenile justice) - Children accused of breaking the law have the right to
legal help and fair treatment. There should be lots of solutions to help these
children become good members of their communities. Prison should only be the
last choice.

- 41 (respect for superior national standards) - If the laws of a country protect
children’s rights better than this Convention, then those laws should be used.

- Participation

- 4

- 12 - Views of Children

- 13 - Freedom of Expression

- 14 - Freedom of thought, conscience and religion

- 15 - Freedom of Association

- 16 - Right to Privacy

- 17 - Access to Information; mass media


International Humanitarian Law

- International Humanitarian Law - Law of war or law of armed con ict

- Limiting e ects of war… protecting persons - not participating

- Means and methods of warfare

- Four Geneva conventions and additional protocol 1 and 2 relevant for us

- Common Article 3

- Machel report, 1996 - UN report on impact of armed con ict on children

- No clear De nition of Child


- Geneva Convention IV - Under 15, Under 12 and new born-babies

- Additional Protocols, 1977 - until 18

- Convention on the rights of child, 1989 - Article 1… Article 38

- IHL only applicable only during armed con ict

- E ects of hostilities - Protection


- Distinction between Military and Civilian objects - Additional Protocol 1, Article
51-52… Additional Protocol 2, Article 13

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 - Civilians - direct part in hostilities - legitimate targets… AP 1, Article 51 (3)…
AP 2, Article 13 (3)

- Prohibition of indiscriminate attacks - principle of proportionality

- Obligation to protect civilians

- Article 5, Geneva Convention 3 - when child takes up arms

- Geneva Convention 4, Article 14 - children under under 15, mother of children
under 7

- Geneva Convention 4, Article 17 - conclusion of local agreements - children
and maternity cases

- Additional protocol 1, Article 78; AP 2, Article 4 (3e) - removal of children from
area of hostility

- Recruitment and Participation


- AP 1, Article 77 (2) - International armed con ict - children not attained 15, no
direct part in hostilities

- Refrain from recruitment - forced, compulsory and voluntary

- Priority to the oldest - recruitment - persons above 15 but under 18

- Non-international armed con ict, AP 2, Article 4 (3)(e) - neither recruitment not
participation

- Article 38 - convention on rights of children (Same as Article 77)

- ICC Statute - Article 8 (2)(b)(xxvi) and 8 (2)(e)(vii)

- Optional protocol to the CRC on the involvement of children in Armed con ict,
2000 - Article 1, 2, 3, 4 (1), 4 (2)

- Although India has rati ed CRC, recruitment age is 17.5

Recruitment Participation

IHL 15 (Article 77) - GC 15 (Article 77) - if choice, oldest

IHRL 15 (Article 38 of CRC) 18 (For countries part of Optional Protocol -

CRC), otherwise 15

ICL 15 (Rome Statute) 15 (Rome Statute)

- Protection, Assistance and Access to Services


- No person under 18 can be given death penalty

- Detention - Geneva Convention IV, Article 82… AP 1 - Article 77 (4)

- GC IV, Art. 79 - 135 - food, clothing, recreation, transfer, death release, etc

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 - GC IV, Article 94 (2) and 94 (3) - attend school and playgrounds

- GC IV, Article 132 (2) - conclude agreements for release, repatriation

- GC IV, Article 89 (5) - internees (who are in internment zones) under 15 -
additional food

- GC IV, Article 85 (2) and 119 (2) - Punishment

- “Protecting Parties” - protecting powers during a time of war

- Deprivation of family (Article 9 and 20 of CRC from IHRL perspective)

Optional Protocol (sale, prostitution, pornography)

- India has rati ed this optional protocol

- Preamble - in order further to achieve the purposes of the Convention on the

Rights of the Child and the implementation of its provisions, especially these
article from Convention on Rights of Child

- 1 - de nition of child

- 11 - “illicit transfer”… transnational

- 21 - inter country adoption… no nancial gains

- 32 - “economic exploitation”, “performing hazardous work”, “Interfere with
child’s education”, “child’s health”, employment issues such as hours and
conditions of work, wages [Child Labour act, Article 39 (e)]

- 33 - “illicit use of narcotic drugs and psychotropic substances”, “prevent the
use of children in the illicit production and tra cking of such substances” (Ch. 9
of JJ Act)

- 34 - “sexual exploitation and sexual abuse” (POCSO)

- 35 - “abduction of, the sale of or tra c in children” (370 IPC; immoral tra c
prevention act)

- 36 - “all other forms of exploitation” (children used as bonded labour, Article
39e, f)

- Other instruments mentioned in the preamble - 


- International Conference on Combating Child Pornography on the Internet
(Vienna, 1999) 

- Hague Convention on the Protection of Children and Cooperation with
Respect to Inter-Country Adoption

- Hague Convention on the Civil Aspects of International Child Abduction

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 - Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement
and Cooperation in Respect of Parental Responsibility and Measures for the
Protection of Children

- International Labour Organization Convention No. 182 on the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour

- Declaration and Agenda for Action adopted at the World Congress against
Commercial Sexual Exploitation of Children, held at Stockholm from 27 to 31
August 1996

- Article 2 - De nition 

- Sale - any act or transaction whereby a child is transferred by any person or
group of persons to another for remuneration or any other consideration 

- Child Prostitution - use of a child in sexual activities for remuneration or any
other form of consideration 

- Child Pornography - any representation, by whatever means, of a child en-
gaged in real or simulated explicit sexual activities or any representation of the
sexual parts of a child for primarily sexual purposes.

- Article 3 - 

- Each State Party shall ensure that, as a minimum, the following acts and
activities are fully covered under its criminal or penal law (Covered in India)

- Same shall apply to an attempt to commit any of these acts and to complicity
or participation in any of these acts. (In POCSO, attempt or abetment on same
Level as act… Moreover, reverse burden of proof)

- appropriate penalties that take into account their grave nature. 

- Each State Party shall take measures, where appropriate, to establish the
liability of legal persons for o ences… this liability of legal persons may be
criminal, civil or administrative. 

- States Parties shall take all appropriate legal and administrative measures to
ensure that all persons involved in the adoption of a child act in conformity with
applicable inter- national legal instruments. (S. 370 of IPC; Immoral tra c,
POCSO, kidnapping under IPC)

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 POCSO
- An Act to protect children from o ences of 

- sexual assault

- sexual harassment

- pornography 

- provide for establishment of Special Courts for trial of such o ences

- S. 2 (d) - "child" means any person below the age of eighteen years

- S. 5, 6, 10-26 of Juvenile Justice Act

- Special provision, under Article 15 (3) of the Constitution of India

- Whereas, the Government of India has acceded on the 11th December, 1992 to
the Convention on the Rights of the Child, adopted by the General Assembly of
the United Nations, which has prescribed a set of standards to be followed by
all State parties in securing the best interests of the child

- Whereas, it is necessary for the proper development of the child that his or her
right to privacy and con dentiality be protected and respected by every person
by all means and through all stages of a judicial process involving the child

- Whereas, it is imperative that the law operates in a manner that the best interest
and well being of the child are regarded as being of paramount importance at
every stage, to ensure the healthy physical, emotional, intellectual and social
development of the child

- Whereas, the State parties to the Convention on the Rights of the Child are
required to undertake all appropriate national, bilateral and multilateral measures
to prevent (a) inducement or coercion of a child to engage in any unlawful sexual
activity; (b) exploitative use of children in prostitution or other unlawful sexual
practices; (c) exploitative use of children in pornographic performances and
materials

- NCPCR - created an E-Box which shows good touch or bad touch

Section O ence Punishment

S. 3 Penetrative Sexual Assault Imprisonment not less than 10

years and upto life… (20 years
minimum if child below 16 years)…
if under 12, could be death penalty
too

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 S. 5 Aggravated Penetrative Sexual Assault - Rigorous imprisonment not less
Police O cer, Armed forces, management than 20 years… life imprisonment
or sta (jail, remand one, place of care or and ne
custody)… management or sta (hospital;
educational or religious institution)…
Gang, deadly weapon, re, injury or hurt to
sexual organs….

S. 7 Sexual Assault - touched sexual parts… or Imprisonment - 3 to 5 years… ne

makes them do it to themselves

S. 9 Aggravated Sexual Assault - Police o cer, Imprisonment - 5 to 7 years… ne

armed forces (Similar elements to S. 5)

S. 11 Sexual Harassment - Sexual Intent
 Imprisonment - upto 3 years… ne

- words or sounds, gestures,

- making child exhibiting his body

- showing object to child

- follows, watches, contacts

- threatens to use real or fabricated (thus,
a simple threat would also amount to
sexual harassment)

- entices a child

S. 13 Use of child for pornographic purposes… a. Directly participating in

(Person doing act to be charged as per pornographic act Not less than 5
previous sections… person video years… not less than 7 years on
graphing it or capturing it liable under this subsequent

act) b. Penetrative Sexual assault - not
less than 20 years till life… ne

c. Aggravated Penetrative Sexual
assault - rigorous imprisonment for
life

d. Sexual assault - 3 - 5

e. Aggravated sexual assault - 5 - 7

S. 15 Storage of pornographic material Upto 3 years

- All ne paid to the victim

- When a case of assault and also video graphing it… then both the assault
section and S. 13 would apply

- In case of a woman, S. 376 of IPC will also apply

- S. 21 - Report o ence - Obligation to report if get to know

- S. 19 - Reporting of o ences -

- any person(including the child), who has apprehension that an o ence under
this Act is likely to be committed or has knowledge that such an o ence has
been committed, he shall provide such information to - Special Juvenile Police
Unit, Local Police

- (2) Record the complaint - record in writing; scribe an entry number; read over

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 to the informant; enter in a book of record

- (7) Reporting will not create any form of liability (goof faith)

- S. 22 - Punishment for false complaint - 


- Any person, who makes false complaint or provides false information against
any person, in respect of an o ence committed under sections 3, 5, 7 and
section 9, solely with the intention to humiliate, extort or threaten or defame him,
shall be punished with imprisonment for a term which may extend to six months
or with ne or with both. 

- Where a false complaint has been made or false information has been
provided by a child, no punishment shall be imposed on such child. 

- Whoever, not being a child, makes a false complaint or provides false
information against a child, knowing it to be false, thereby victimising such child
in any of the o ences under this Act, shall be punished with imprisonment,
which may extend to one year or with ne or with both.

- Procedure -

- S. 24 - Recording statement of a child -


- Police - The statement of the child shall be recorded at the residence of the
child or at a place where he usually resides or at the place of his choice and as
far as practicable by a woman police o cer not below the rank of sub-
inspector… Police o cer not in uniform… Police o cer making the
investigation, shall, while examining the child, ensure that at no point of time the
child come in the contact in any way with the accused… No child shall be
detained in the police station in the night for any reason… Police o cer shall
ensure that the identity of the child is protected from the public media, unless
otherwise directed by the Special Court in the interest of the child…

- S. 25 - Recording statement of a child by Magistrate -


- Under S. 164

- S. 26 - 

- The Magistrate or the police o cer, as the case may be, shall record the
statement as spoken by the child in the presence of the parents of the child or
any other person in whom the child has trust or con dence

- may take the assistance of a translator or an interpreter

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 - S. 27 - Medical Examination of a Child -

- The medical examination of a child in respect of whom any o ence has been
committed under this Act, shall, notwithstanding that a First Information Report
or complaint has not been registered for the o ences under this Act, be
conducted in accordance with section 164A of the Code of Criminal Procedure

- In case the victim is a girl child, the medical examination shall be conducted by
a woman doctor. 

- The medical examination shall be conducted in the presence of the parent of
the child or any other person in whom the child reposes trust or con dence.

- Special Courts -

- S. 28 - For the purposes of providing a speedy trial, the State Government shall
in consultation with the Chief Justice of the High Court, by noti cation in the
O cial Gazette, designate for each district, a Court of Session to be a Special
Court to try the o ences under the Act

- Special court can also deal with cases under S. 67B of IT Act

- S. 29 - Where a person is prosecuted for committing or abetting or attempting

to commit any o ence under sections 3, 5, 7 and section 9 of this Act, the
Special Court shall presume, that such person has committed or abetted or
attempted to commit the o ence, as the case may be unless the contrary is
proved…

- S. 30 - In any prosecution for any o ence under this Act which requires a
culpable mental state on the part of the accused, the Special Court shall
presume the existence of such mental state but it shall be a defence for the
accused to prove the fact that he had no such mental state with respect to the
act charged as an o ence in that prosecution.

- For the purposes of this section, a fact is said to be proved only when the
Special Court believes it to exist beyond reasonable doubt and not merely when
its existence is established by a preponderance of probability. 

- "culpable mental state" includes intention, motive, knowledge of a fact and the
belief in, or reason to believe, a fact

- S. 32 - Special Public Prosecutors - The State Government shall, by noti cation

in the O cial Gazette, appoint a Special Public Prosecutor for every Special
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 Court for conducting cases only under the provisions of this Act… Practice not
less than 7 years…

- S. 33 - Procedure and Powers of Special Courts - A Special Court may take

cognizance of any o ence, without the accused being committed to it for trial,
upon receiving a complaint of facts which constitute such o ence, or upon a
police report of such facts.

- The Special Public Prosecutor, or as the case may be, the counsel appearing
for the accused shall, while recording the examination-in-chief, cross-
examination or re-examination of the child, communicate the questions to be
put to the child to the Special Court which shall in turn put those questions to
the child.

- The Special Court may, if it considers necessary, permit frequent breaks for the
child during the trial.

- The Special Court shall create a child-friendly atmosphere by allowing a family
member, a guardian, a friend or a relative, in whom the child has trust or
con dence, to be present in the court.

- The Special Court shall ensure that the child is not called repeatedly to testify
in the court

- Special Court shall not permit aggressive questioning or character
assassination of the child and ensure that dignity of the child is maintained at all
times during the trial. 

- The Special Court shall ensure that the identity of the child is not disclosed at
any time during the course of investigation or trial… Special Court may permit
such disclosure, if in its opinion such disclosure is in the interest of the child…
For the purposes of this sub-section, the identity of the child shall include the
identity of the child's family, school, relatives, neighbourhood or any other
information by which the identity of the child may be revealed.

- In addition to the punishment, direct payment of such compensation as may
be prescribed to the child for any physical or mental trauma caused to him or for
immediate rehabilitation of such child… Victim compensation scheme

- S. 35 - The evidence of the child shall be recorded within a period of thirty days
of the Special Court taking cognizance of the o ence and reasons for delay, if
any, shall be recorded by the Special Court… The Special Court shall complete
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 the trial, as far as possible, within a period of one year from the date of taking
cognizance of the o ence

- S. 36 - Child not to see accused at the time of testifying… Special Court may
record the statement of a child through video conferencing or by utilising single
visibility mirrors or curtains or any other device.

- S. 37 - The Special Court shall try cases in camera and in the presence of the
parents of the child or any other person in whom the child has trust or
con dence…

- S. 38 - Assistance of an interpreter whenever necessary

- S. 39 - State Government shall prepare guidelines for use of non-governmental

organisations, professionals and experts or persons having knowledge of
psychology, social work, physical health, mental health and child development
to be associated with the pre-trial and trial stage to assist the child.

- S. 40 - Right of Child to take help of legal practitioner

- S. 42A - The provisions of this Act shall be in addition to and not in derogation
of the provisions of any other law for the time being in force and, in case of any
inconsistency, the provisions of this Act shall have overriding e ect on the
provisions of any such law to the extent of the inconsistency.

- S. 19 (6) of POCSO - FIR Registered… Rule 2 (f)… role of social workers and
NGOs

- Komal Movie - explain in the context of law (Aggravated sexual assault; not
clear if penetrative or not… Aggravated because under S. 9 (m); girl below 12
years of age

Right of Children to Free and Compulsory Education Act, 2009

- COI - 45, 46… 51A (k)… 21A (86th amendment act 2002)

- UDHR - Article 26

- ICSER - Article 13 - “protection and assistance”… “care and education of

dependent children”… special measures

- American convention on Human Rights (Pact of San Jose, Costa Rica), 1969 -
Article 12

- UNCRC - 28, 29

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 - Convention on Rights of persons with disabilities -

- Article 21A - free and compulsory education…

- Child (Duties) in Chapter III - Parent/Guardian; Teacher; School; Appropriate

Government/Local Authority

- S. 2 (c) - “child” means a male or female child of the age of six to fourteen years

- S. 2 (f) - “Elementary Education” - Class 1-8

- S. 3 - Every child of the age of six to fourteen years, shall have the right to free
and compulsory education in a neighbourhood school till the completion of his
or her elementary education… no child shall be liable to pay any kind of fee or
charges or expenses which may prevent him or her from pursuing and
completing the elementary education

- S. 4 - Special provisions - Where a child above six years of age has not been
admitted in any school or though admitted, could not complete his or her
elementary education, then, he or she shall be admitted in a class appropriate to
his or her age… Provided that where a child is directly admitted in a class
appropriate to his or her age, then, he or she shall, in order to be at par with
others, have a right to receive special training, in such manner, and 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 completion of
elementary education even after fourteen years.

- S. 5 - Where in a school, there is no provision for completion of elementary

education, a child shall have a right to seek transfer to any other school… For
seeking admission in such other school, the Head-teacher or in-charge of the
school where such child was last admitted, shall immediately issue the transfer
certi cate

- S. 30 - No child shall be required to pass any Board examination till completion

of elementary education.


- Duties -

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- S. 10 - Duties of parents/guardians - It shall be the duty of every parent or
guardian to admit or cause to be admitted his or her child or ward, as the case
may be, to an elementary education in the neighbourhood school.

- S. 11 - With a view to prepare children above the age of three years for
elementary education and to provide early childhood care and education for all
children until they complete the age of six years, the appropriate Government
may make necessary arrangement for providing free pre-school education for
such children. (Not written shall, but may… R/W Article 45)

- S. 6 - For carrying out the provisions of this Act, the appropriate Government
and the local authority shall establish, within such area or limits of
neighbourhood, as may be prescribed, a school, where it is not so established,
within a period of three years from the commencement of this Act.

- S. 7 - The Central Government and the State Governments shall have

concurrent responsibility for providing funds for carrying out the provisions of
this Act.

- Central Government shall -

(a) develop a framework of national curriculum with the help of academic
authority

(b) develop and enforce standards for training of teachers

(c) provide technical support and resources to the State Government for
promoting innovations, researches, planning and capacity building.

- S. 8 - Duties of appropriate government 


- provide free and compulsory elementary education to every child

- Compulsory education means obligation of ‘appropriate government’-

(a) provide free elementary education to every child of the age of six to fourteen
years 

(b) ensure compulsory admission, attendance and completion of elementary
education by every child of the age of six to fourteen years

- NON DISCRIMINATION - ensure that the child belonging to weaker section
and the child belonging to disadvantaged group are not discriminated against
and prevented from pursuing and completing elementary education on any
grounds;

- ensure and monitor admission, attendance and completion of elementary
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 education by every child

- provide training facility for teachers.

- provide special training facility speci ed in section 4; etc.

- S. 9 - Duties of Local Authority 


- provide free and compulsory elementary education to every child

- ensure that the child belonging to weaker section and the child belonging to
disadvantaged group are not discriminated against and prevented from pursuing
and completing elementary education on any grounds

- ensure admission of children of migrant families

- similar grounds as S. 8


- S. 21 - School Management Committee - constitute a School Management

Committee consisting of the elected representatives of the local authority,
parents or guardians of children admitted in such school and teachers

- at least three-fourth of members of such Committee shall be parents or
guardians

- proportionate representation shall be given to the parents or guardians of
children belonging to disadvantaged group and weaker section

- fty per cent. of Members of such Committee shall be women

- S. 22 - School Development Plan - School Management Committee, to develop

- S. 12 - Private Schools - Admit 25% students from weaker sections… School

Management Committee (75% member from communities)

- S. 24 - Duties of Teachers

- S. 25 -

- Prohibitions -

- S. 13 - No capitation fees; Screening Procedure

- S. 15 - No denial of admission

- S. 16 - No holding back and expulsion

- S. 17 - Prohibition of physical punishment and mental harassment to child

- S. 18 - No School to be established without obtaining certi cate of

recognition…

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- S. 27 - No teacher shall be deployed for any non-educational purposes other
than the decennial population census, disaster relief duties or duties relating to
elections to the local authority or the State Legislatures or Parliament, as the
case may be.

- S. 28 - No teacher shall engage himself or herself in private tuition or private

teaching activity.


- Curriculum -

- S. 29 - The curriculum and the evaluation procedure for elementary education

shall be laid down by an academic authority to be speci ed by the appropriate
Government

- The academic authority, while laying down the curriculum and the evaluation
procedure, shall take into consideration the following -

(a) conformity with the values enshrined in the Constitution

(b) all round development of the child

(c) building up child's knowledge, potentiality and talent

(d) development of physical and mental abilities to the fullest extent

(e) learning through activities, discovery and exploration in a child friendly and
child-centered manner

(f) medium of instructions shall, as far as practicable, be in child's mother
tongue

(g) making the child free of fear, trauma and anxiety and helping the child to
express views freely

(h) comprehensive and continuous evaluation of child's understanding of
knowledge and his or her ability to apply the same.

- Monitoring -

- S. 31 - The National Commission for Protection of Child Rights constituted

under section 3, shall, in addition to the functions assigned to them under that
Act, also perform the following functions -

(a) examine and review the safeguards for rights provided by or under this Act
and recommend measures for their e ective implementation

(b) inquire into complaints relating to child's right to free and compulsory
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 education

(c) take necessary steps as provided under sections 15 and 24 of the said
Commissions for Protection of Child Rights Act.

- S. 32 - any person having any grievance relating to the right of a child under this
Act may make a written complaint to the local authority having jurisdiction… the
local authority shall decide the matter within a period of three months after
a ording a reasonable opportunity of being heard to the parties concerned

- S. 33 - National Advisory Council

- S. 34 - State Advisory Council


- School Norms and Facilities (The Schedule)-

- Class 1 - 5 - 

Admitted Children Teachers

Upto 60 2

61 - 90 3

91 - 120 4

121 - 150 5

Above 150 5 (+1 head teacher)

Above 200 Pupil-Teacher ratio

shall not exceed 40

- Building - 

- All weather building consisting of - barrier free access, separate toilets, safe
and adequate drinking water, kitchen for mid day meal, playground, etc

- Library with all books

Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994

- PCPNDT Act… Amended in 2003

- An Act to provide for the prohibition of sex selection, before or after conception, 

- regulation of prenatal diagnostic techniques for the purposes of detecting 

(a) genetic abnormalities 

(b) metabolic disorders 

(c) chromosomal abnormalities 

(d) certain congenital malformations 

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 (e) sex-linked disorders 

- and for the prevention of their misuse for sex determination leading to female
foeticide; and, for matters connected therewith or incidental thereto.

- “Pre-Natal” - means before birth

- S. 2 (k) - Pre-Natal Diagnostics Test - 


- ultrasonography

- any test or analysis of amniotic uid, chorionic villi, blood or any tissue or uid
of a pregnant woman or conceptus

- conducted to detect

(a) genetic disorders 

(b) metabolic disorders 

(c) chromosomal abnormalities 

(d) congenital anomalies

(e) haemoglobinopathies 

(e) sex-linked disorders

- S. 2 (i) - Pre-Natal Diagnostics Procedures


- gynaecological procedures; obstetrical procedures Medical Procedures such
as 

- ultrasonography, foetoscopy, taking or removing samples of amniotic uid,
chorionic villi, blood or any other tissue or uid

- of a man, or of a woman for being sent to a Genetic Laboratory or Genetic
Clinic for conducting any type of analysis or pre-natal diagnostic tests for
selection of sex before or after conception

- S. 2 (o) - Sex Selection -


- any procedure, technique, test or administration or prescription or provision of
anything 

- for the purpose of ensuring or increasing the probability that an embryo will be
of a particular sex

- S. 2 (c) - Genetic Counseling Centre


- means an 

(a) institute

(b) hospital

(c) nursing home 

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 (d) or any place, by whatever name called, 

- which provides for genetic counselling to patients

- S. 2 (e) - “Genetic Laboratory” 


- means a laboratory and includes a place where facilities are provided for
conducting analysis or tests of samples received from Genetic Clinic for pre-
natal diagnostic test.

- includes a place where 

(a) ultrasound machine

(b) imaging machine

(c) scanner 

(d) or other equipment 

- capable of determining sex of the foetus 

- or where a portable equipment which has the potential for detection of sex
during pregnancy or selection of sex before conception, is used.

- Conceptus, Embryo, Foetus


- S. 2 (ba) - Conceptus - Any product of conception… at any stage of
development from fertilisation until birth including extra embryonic membranes
as well as the embryo or foetus

- S. 2 (bb) - Embryo - means a developing human organism after fertilisation till
the end of eight weeks ( fty-six days)

- S. 2 (bc) - Foetus - human organism during the period of its development
beginning on the fty- seventh day following fertilization or creation (excluding
any time in which its development has been suspended) and ending at the birth

- Regulation of Pre-Natal Diagnostic Techniques -

- Used to detect several issues (genetic abnormalities, etc.)

- Central Supervisory Board

- S. 4 (3) Conditions to be ful lled before conducting pre-natal diagnostics -


(i) age of the pregnant woman is above thirty- ve years;
(ii) the pregnant woman has undergone of two or more spontaneous abortions or
foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents

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 such as drugs, radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a family history of mental retardation
or physical deformities such as, spasticity or any other genetic disease;
(v) any other condition as may be speci ed by the Central Supervisory Board;
- S. 5 - Other conditions

- (a) he has explained all known side and after e ects of such procedures to the
pregnant woman concerned;
(b) he has obtained in the prescribed form her written consent to undergo such
procedures in the language which she understands; and
(c) a copy of her written consent obtained under clause (b) is given to the
pregnant woman

- S. 24 - court shall presume unless the contrary is proved


- that the pregnant woman was compelled by her husband or any other relative,
as the case may be, to undergo pre-natal diagnostic technique

- other than for those purposes mentioned in S. 4

- such person shall be liable for abetment of o ence under sub-section (3) of
section 23 and shall be punishable for the o ence speci ed under that section.

- S. 23 (3) - Punishment

- 1st O ence; prison upto 3 years, Fine upto Rs. 50,000

- 2nd O ence - prison upto 5 years, Fine upto Rs. 1,00,000

- Procedure for Registration - S. 18, 19… R/W Rule 4


- Application for registration with appropriate authority…

(READ SECTION IN DETAILS)

- Rule 5 (1) - Fees to be paid for Registration


- Genetic lab, genetic clinic, ultrasound clinic, etc… Rupees 3,000

- An institute, hospital;, nursing home, or other… Rupees 4,000

- S. 19 (4) - Certi cate of Registration to be displayed… valid for 5 years

- Rule 8 - Renewal of Certi cate of Registration

- S. 19 - When can a certi cate of registration be cancelled or suspended

- Prohibited acts under PCPNDT Act -


- S. 3, 3A, 3b, 6

- S. 3A - Conducting or aiding in conduction sec selection in - woman or a man

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 or on both or on any tissue, embryo, conceptus, uid or gametes derived from
either or both of them

- S. 3B - No person shall sell any ultrasound machine or imaging machine or
scanner or any other equipment capable of detecting sex of foetus to any
Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other
person not registered under the Act.

- S. 3 -

- S. 6 -

- O ences under PCPNDT Act


- S. 22, 23, 26

- S. 23 (2) - The name of the registered medical practitioner shall be reported by

the Appropriate Authority to the State Medical Council concerned for taking
necessary action including suspension of the registration if the charges are
framed by the court and till the case is disposed of and on convic- tion for
removal of his name from the register of the Council for a period of ve years for
the rst o ence and permanently for the subsequent o ence

- S. 28 - When shall take court cognizance of an o ender

- S. 27 - Nature of o ences… cognizable, non-bailable, non-compoundable

- Role of Judiciary - Presumptions (24), cognizance (28) then judicial cases;

- Authorities under the PCPNDT Act -


Central Supervisory board… State/UT Supervisory board… etc.

- Powers of Appropriate Authority - S. 17 (4)… Summoning, Production, Issuing

- Functions of Appropriate Authority - S. 17A

- Process of making an appeal - S. 21 R/W Rule 19


- Concerns under the legislation

1. Prefer male children

2. Cognizance

3. Procedure only for females over 35; below 35 it takes lot of time

4. Misuse by pregnant women (presumption)

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5. No provision for follow up after registration of such clinics; plus less registration
fees (just 3,000 and 4,000)…. Renewal only after 5 years… no inspection

Child with Disabilities

- Estimates from the World Report on Disability suggest that there are around 93
million children under the age of 14 living with a moderate or severe disability…
They face discrimination in every aspect of their lives. It arises not from the
intrinsic nature of their disability, but rather from entrenched social exclusion
resulting from rejection of di erence, poverty, social isolation, prejudice,
ignorance and lack of services and support.

- The cumulative impact serves to deny children with disabilities respect for their
dignity, their individuality, even their right to life itself. This social exclusion is
even more acute for girls. They face a double jeopardy. Not only are they
marginalised by their disability, but their status as girls compounds the
discrimination they encounter, commonly leading to even greater violation of
their rights, including disproportionate vulnerability to violence and abuse and
fewer opportunities for participation, education, play, or health care

- Synergies between three key treaties of relevance to the rights of children with
disabilities

1. the Convention on the Rights of the Child (1989)

2. the Convention on the Rights of Persons with Disabilities (2006) 

3. the Convention on the Elimination of all Forms of Discrimination against
Women (1979).

- Inter-related nature was acknowledged in the Secretary General’s Status Report

and Omnibus Resolution on children with disabilities, adopted by the UN
General Assembly in 2011… Together they embody four core values of human
rights law that are of particular importance in the context of disability - 

1. The dignity of each individual, who is deemed to be of inestimable value
because of his/her inherent self worth, and not because s/he is economically or
otherwise ‘useful’ 

2. the concept of autonomy or self-determination, which is based on the
presumption of a capacity for self-directed action and behaviour, and requires
that the person be placed at the centre of all decisions a ecting him/her

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 3. the inherent equality of all regardless of di erence

4. the ethic of solidarity, which requires society to sustain the freedom of the
person with appropriate social support

- All three Conventions start from a recognition that women, children and people
with disabilities, respectively, experience signi cant violations of their rights as a
consequence of their status in society. Accordingly, they each serve both to
a rm those human rights, and to elaborate the measures that States parties are
required to introduce to ensure their realisation. 

- They also establish mechanisms that serve to hold States accountable for the
commitments they have undertaken. In order to monitor progress to that end,
each Convention establishes a Committee, whose members are elected by
States parties to that Convention, and charged with the responsibility

of ensuring that it is implemented by signatory states. 

- All States parties are required to submit a progress report to the Committee
two years after rati cation, and every four subsequent years, ( ve in the case of
the Convention on the Rights of the Child). The Committees examine these
reports and provide Concluding Observations, setting out their
recommendations as to the actions States parties need to take to strengthen
implementation of all the rights embodied in the relevant Convention. 

- In addition, all three Conventions now have an Optional Protocol which
enables individual or groups of people to make appeals to the relevant
Committee against abuses of their rights, if all national e orts to obtain redress
have been exhausted.

Convention of Rights on Children

- The Convention on the Rights of the Child (CRC) comprising 54 Articles, was
adopted by the UN General Assembly in 1989, and came into force in
November, 1990.

- Two articles, in particular, render children with disabilities visible and place
explicit obligations on States to introduce measures to promote inclusion and
freedom from discrimination. 

1. Article 2 - no child should encounter discrimination on the grounds of ‘race,
colour, sex, language, religion, political or other opinion, national, ethnic or
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 social origin, property, disability, birth or other status

2. Article 23 - dedicated to children with disabilities and emphasises their right
to a ‘full and decent life in conditions which ensure dignity, promote self-reliance
and facilitate the child’s active participation in the community’. It imposes
obligations on States to provide special care and assistance to enable the child
to achieve the ‘fullest possible social integration and individual development,
including his or her spiritual or cultural development’.

- In 1996, the Committee on the Rights of the Child summarised the general
concerns it had identi ed from its examination of governments’ reports.7 It
found:

• lack of sensitivity for the needs and situation of children with disabilities;

• widespread discriminatory attitudes and prejudice; 

• lack of access to health care and social services; • low number of children with
disabilities enrolled in schools;

• failure to take su cient measure to promote inclusion into society and
participation in family life.

Convention of Rights of Persons with Disabilities

- The Convention on the Rights of Persons with Disabilities (CRPD), adopted by

the UN in 2006, was the rst human rights convention of the 21st Century.
- The overall objective of the CRPD is outlined in Article 1 which states: ‘The
purpose of the present Convention is to promote, protect and ensure the full and
equal enjoyment of all human rights and fundamental freedoms by all persons
with disabilities, and to promote respect for their inherent dignity. Persons with
disabilities including those who have long-term physical, mental, intellectual or
sensory impairments which in interaction with various barriers may hinder their
full and e ective participation in society on an equal basis with others’

- the aim of the CRPD was not to establish speci c new human rights for people
with disabilities. Rather, it was developed in recognition that their human rights
were widely and severely violated in countries throughout the world, and that
additional measures were needed to ensure their realisation. It therefore
rea rms the universality of rights, introduces new obligations on States to

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 overcome barriers and ensure that people with disabilities are acknowledged as
subjects of rights, entitled to respect on an equal footing with all other people

- CRPD speci cally -


• clari es human rights principles in the context of people with disabilities;
• provides an authoritative model for governments to use in shaping national law
and policies;
• creates more e ective mechanisms for monitoring the rights of people with
disabilities;
• establishes international standards regarding the rights and freedoms of
people with disabilities;
• establishes common bases for greater participation and self-su ciency of
people with disabilities worldwide;

• provides for consultation with persons with disabilities and their representative
organisations.

- CRPD includes a number of provisions which address the situation of children 


• The preamble recognizes that children with disabilities should have full
enjoyment of all human rights on an equal basis with others;

• The general principles include respect for the evolving capacities of children
and their right to preserve their identities;

• The general obligations require that representative organisations of children
with disabilities must be consulted when States Parties are developing and
implementing legislation and policies;
• A dedicated article on children with disabilities introduces obligations:

− to ensure the enjoyment of all human rights and fundamental freedoms on an
equal basis with other children;

− to ensure that the best interests of the child is a primary consideration;

− to provide disability and age appropriate assistance to ensure that children
with disabilities are able to realize the right to express their views on all matters
of concern to them and have them taken seriously in accordance with age and
maturity;
• Age appropriate measures must be introduced to ensure that children with
disabilities have access to justice;

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 • Measures must be taken to provide age sensitive assistance to prevent
exploitation violence and abuse, age, gender and disability sensitive protection
and rehabilitation services, and child focused legislation to ensure that
exploitation, violence and abuse is identi ed and investigated;

• Measures must be taken to ensure that children with disabilities are registered
immediately after birth;
• Children with disabilities are entitled to retain their fertility, thereby prohibiting
forced sterilisation;
• Children with disabilities have equal rights with respect to family life and States
Parties have obligations:

− to provide services and support to families to prevent abandonment,
concealment and segregation;

− not to separate children with disabilities from parents unless this is in their
best interests and never on the basis of disability;

− where parents are unable to care for children, to make e orts to provide
alternative care within the wider family or within the community in a family
setting; 

• Education at all levels must be inclusive and children with disabilities have an
equal entitlement to general education. Inclusive education requires provision of
all necessary support and technical aids, including respect for linguistic identity,
and facilitating the learning of Braille, orientation and mobility skills, and training
of teachers;
• Children with disabilities must be provided with equal access to participation in
play, recreation, and leisure and sporting activities, including in schools.

CEDAW

- The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) was adopted by the UN in 1979, thus long pre-dating both the CRC
and the CRPD.

- Since CEDAW is not age-speci c, its provisions apply to females throughout the
life cycle – from infancy to old age. It therefore applies equally to girls.

- Although CEDAW does not make any explicit reference to disability, the
Committee has made two general recommendations of relevance. 

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 1. Firstly, General Recommendation 18 obliges States Parties, in their country
reports, to make explicit reference to the situation and status of women with
disabilities, in particular, with regard to employment, education and social
security… It requires that: ‘States parties provide information on women with
disabilities in their periodic reports, and on measures taken to deal with their
particular situation, including special measures to ensure that they have equal
access to education and employment, health services and social security, and to
ensure that they can participate in all areas of social and cultural life’

2. General Recommendation 24, on women and health, requires commentary
and analysis on the health status of women with disabilities…

Disability in the 3 conventions

- Both CEDAW and CRPD are explicitly focused on challenging discrimination,

and ensuring the full and equal enjoyment of all human

rights and fundamental freedoms by women and people with disabilities
respectively

- In the same way that CEDAW challenges traditional assumptions of women’s

inferiority, weakness, and dependency, which have been used to justify
entrenched inequality, so the CRPD challenges traditional models of disability
which have served to reinforce and defend the denial of the rights of people with
disabilities

- The earliest approach to disability conceptualises people with disabilities as

objects of charity. In this charity model, the person not only does not have the
right to equal treatment and access to resources, but should accept whatever
society is prepared to provide – and be willing to take less or nothing, if that
society decides their needs are not a priority. It constructs a person with a
disability as a passive recipient neither able nor entitled to claim rights. 

- Charity model replaced by the medical model of disability focuses upon the
physical, sensory, psychosocial, or intellectual ‘de cits’ of the individual, and
again, constructs the individual as a passive recipient, but of professional
expertise, rather than charity.

- The CRPD demands a fundamentally di erent approach. It emphasises the
social model of disability, which maintains that disability results from interactions
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 between an individual with speci c physical, intellectual, sensory or mental
health impairment and the surrounding social and cultural environment… The
CRPD demands a fundamentally di erent approach. It emphasises the social
model of disability, which maintains that disability results from interactions
between an individual with speci c physical, intellectual, sensory or mental
health impairment and the surrounding social and cultural environment… The
CRPD, therefore, like CEDAW, takes as its starting point the equal rights of all
people and imposes explicit obligations on governments to ensure the removal
of those barriers that impede the realisation of equality… The CRC, in common
with CEDAW and CRPD, also recognises that children are subjects of rights, and
that no child is discriminated against.

Synergies

- All three Conventions address the social exclusion of, and consequent denial of
human rights for the group of people they address

- The provisions in the three Conventions overlap in many areas and serve to
reinforce each other. Additionally, in some instances, one convention addresses
an issue of concern to women or children, or to disability that the other does
not. Consequently, reading them together enriches the potential for promotion
and protection of rights

- The CRC in its entirety can be seen as a framework of principles, entitlements

and obligations designed to promote the optimum well being and development
of the child. During the process of drafting the CRPD, many governments
argued that the inclusion of measures focused on children were unnecessary as
they were already adequately protected by the CRC. 

- However, a focus limited to the CRC will fail to address the additional and
detailed obligations elaborated in the CRPD, and thereby undermine the
potential to hold States to account in respect of children with disabilities.

- Likewise, relying exclusively on the CRPD will mean that the holistic nature of
the CRC rights for all children will not be adequately understood. Lack of
awareness of CEDAW will diminish understanding of the signi cant double
jeopardy experienced by girls with disabilities, and the associated obligations to

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 address gender discrimination.


- Understanding Capacity -

- Most societies have a presumption of legal incapacity in respect of children’s

decision-making, whether expressed formally or informally within their legal
frameworks. Likewise, a presumption of capacity usually exists once a person
reaches adulthood, at whatever age the law determines that to take place. 

- However, these presumptions of capacity are often denied for people with
disabilities, sometimes also for women, and commonly bear little relationship to
actual capacity in respect of children.
- All three Conventions therefore address this issue of legal capacity. 

- Article 5 of the CRC states that parents have the right and the responsibility to
provide direction and guidance to their children. However, it goes on to state
that such guidance must be ‘appropriate’, be directed to ‘the exercise by the child
of their rights’, and be provided ‘in a manner consistent with their evolving
capacities’… It emphasises that although parents are vested with rights on
behalf of the child to enable him or her to realise their rights, they only extend for
so long as the child is unable to exercise those rights for her or himself. 

- Article 3 of CRPD has respect for ‘individual autonomy including the freedom to
make one’s own choices, and independence of persons’. It thereby challenges the
traditional discriminatory treatment of people with disabilities by which they are
widely denied the right to exercise autonomy… However, as an absolute
principle, it cannot apply to all children, for whom the concept of evolving
capacities must be recognised, in line with CRC

- Although CEDAW does not explicitly address the issue of capacity in respect
of children, it does emphasise, in Article 15, the obligation to ensure equality in
respect of legal capacity and therefore necessitates that States remove any
di erentiation in legislation, policy or treatment between boys and girls,
including those with disabilities, in respect of capacity.

- Inclusion and Participation -

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- Inclusion and participation at every level of society is not only a fundamental
human right, but it is a means of realising other rights:
- The CRC recognises the importance of participation and introduces a provision
in Article 12 that every child capable of forming a view has the right to express
that view on all matters of concern to him or her and have it taken seriously in
accordance with age and maturity

- Committee on the Rights of the Child has elaborated the measures needed for
States to give e ect to Article 12 in a General Comment. It stresses that the right
applies to children from the earliest ages, and to the widest possible
interpretation of matters of concern

- However, although the provision necessarily applies equally to children with

disabilities, in reality, they have often been excluded from opportunities to
express their views. Barriers in the physical environment, communications and
transportation, together with prevailing assumptions of incompetence, invisibility
in public spaces, exclusion from school, lack of awareness, over-protection and
lack of sensitivity on the part of professionals working with children, have all
contributed to this marginalisation.

- Article 7 of the CRPD therefore demands that the right to be heard must be
respected for children with disabilities on an equal basis with other children and
that they must be ‘provided with disability and age-appropriate assistance to
realise that right.’… CRPD includes a broad range of provisions that require
States to remove the barriers that impede e ective or meaningful participation. It
demands a commitment to comprehensive awareness- raising to combat
stereotypes, prejudices and harmful attitudes

- Only by addressing the overarching principle of participation in the CRC,

together with the dedicated measures in both CRPD and CEDAW, will it be
possible to realise the rights of all children with disabilities to be included,
listened to and taken seriously in all arenas of their lives.

- Respecting Family Life -

- The right to family life, although widely upheld in societies throughout the world
as the ideal environment in which to bring up children, is, nevertheless, denied
for many millions of children with disabilities. A combination of ignorance,
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 discrimination, poverty, inadequate social protection and community based
services, means that children with disabilities are often placed in institutions,
rejected by extended families or isolated and excluded within their own family.

- The CRC provides the basic framework a rming the right of every child in
respect of family life. The Preamble recognises the family as the fundamental
group of society providing the optimum environment for children to grow up in…
Article 8, 9, 18

- The CRPD considerably strengthens these provisions in respect of children
with disabilities. Article 23 insists that children with disabilities have equal rights
with respect to family life, and places speci c obligations on States to prevent
concealment, abandonment, neglect and segregation of children with disabilities
through the provision of information, services and support. It emphasises that a
child must never be separated from parents on the basis of a disability of either
the child or the parents. It also places a much stronger emphasis than the CRC
or CEDAW in requiring that where a family is unable to care for a child, every
e ort must be made to place the child within the wider family or within the
community in a family setting. 

- Article 16 of CEDAW provides that women have the same rights as men to
determine the number of children they have, and to have equal access to family
planning services. This means, by implication, that both adolescent boys and
girls with disabilities must be a orded equal access to such services… rticle 25
of the CRPD introduces a comparable obligation to eliminate discrimination in
order that people with disabilities have equal rights to found a family and decide
on the number of their children, as well as accessing the same range, quality
and standard of sexual and reproductive health programmes as provided to
other persons. However, it also includes a provision, not present in the other two
treaties, that people with disabilities, including children, are able to retain their
fertility on an equal basis with others.

CRC CRPD CEDAW

De nition Article 1 (below 18) Article 1 (All people with

disabilities, including
children)

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 CRC CRPD CEDAW

Non-Discrimination Article 2 (non- Article 2 (discrimination Article 1 (treating girls or

discrimination, including on basis of disability), women di erently from
disability) Article 3 (equality of men or boys), Article 2
opportunity), Article 4 (State must not allow
(duty of state to discrimination), Article 5
eliminate discrimination) (State to eliminate
Stereotypes)

Best Interests Article 3 (best interest of Article 7 (best interest of

child) child with disabilities)

Right to Life Article 6 Article 10

Non-separation from Article 9 Article 23

Parents

Family reuni cation Article 10 Article 18

Right to express views Article 12 (Right of child Article 3 (full and Article 7 (Girls and
to form, express views), e ective participation), women to participate in
Article 23 (Right to active Article 7 (right of children decisions made by Govt
participation with with disabilities to and NGO), Article 8
community) express views) (Right to represent
country, participate in
work of Intl. Orgs.)

Education Article 28 Article 24 Article 10

Access to Justice Article 40 Article 13 Article 15

Implementation Article 4 Article 4 Article 3, 4

(mandatory)

Optional Protocol 3 (Not part of mid-sem)

Admissibility criteria for individuals (Article 7)

Denunciation (Article 22)

Critically analyse procedure when communication done

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Syllabus
- Constitutional Provisions (Preamble, FRs, DPSPs, FDs)

- International legal Framework (ICCPR, DHR, Concerning Children, ICSER,

Regional Conventions, CEDAW, CRC with 2 optional protocols)

- CRC themes 

- Education

- Armed con ict under A. 38, IHL, International Criminal Law, optional protocol

- Synergies

- PCM Act

- POCSO Act

- PCPNDT Act, CEHAT case

- RTE Act

- If question on Education, then write on International Instrument, constitutional

provision, and RTE Act (not regional instruments), Unni Krishnan case

- If question on Sexual o ences, then write on International Instrument, optional

protocol, constitutional provision, and POCSO Act

- PCM Act, Independent thought case (2017)


- Material - CRC, Synergies, POCSO material, nexus between POCSO and child
marriage, handbook of child marriage, Armed Con ict (IHRL, IHL, ICL)


- Excluded from Mid-Sem - History (FYPs), Child Labour Act, De ning what is a
child

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