UNIT 20 RIGHTS OF CHILDREN

20.0 Introduction
Special Rights I .*I\ Kofi A. Annan, Secretary-General of the United Nations (2000). observed that:
"There is no trust more sacred than the one the world holds on the children.'
There is no duty more important than ensuring that their rights are respected,
that their welfare is protected, that their lives are free from fear and want and
that they grow up in peace." There has been great concern for the welfare of the
children at the international and national levels. Exceptional vulnerability of
children to exploitation gained international attention and led to the passing of
various instruments to protect the rights of children. It is necessary to study
these various instruments as these are basis for child rights in India.

20.1 OBJECTIVES
In this Unit, we discuss the children's rights and protection and promotion of
their interest and welfare. After going through this unit, you should be able to:
Describe the status of children under international and national law;
Explain the children's rights and special protection available to them under 1
relevant laws; and 1
Appreciate and promote the special protection given to children by the
National Commission for Children.

20.2 INTERNATIONAL MEASURES FOR

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PROTECTION OF CHILDREN'S RIGHTS
Long ago, countries ba\ically had no concern for children and their rights. It is
pertinent to mention the abuses of factory system in England where child-labour
force could be recruited and made to work for long hours from the age of eight

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years. Very often, the children, while working at the machines f r a long time,
used to sleep and get rolled into them along with cotton bales.

20.2.1 Origin of Movement for the Rights of Child

The beginning of the movement for the rights of child can be traced back to the
mid-nineteenth century with the publication of an article titled The Rights of the
Children in June 1852by Slagvolk, followed by Kate Kliggin's, Childrerz's Rights
in 1892. With the attention gradually shifting to the working conditions of the
children, the legal position of the children in England began to change, more so
with the introduction of factory laws which concentrated on the amelioration of
the working conditions of employees, especially children.

The first impression of international concern over the "situation of children"

came in 1923 in Geneva, when the Council of the newly established non-
governmental organization, "Save the Children International Union", adopted a
five-point declaration on the rights of child. This Declaration was endorsed in
the following year, i.e. in 1924, by the fifth Assembly of the League of Nations.
In 1948, the General Assembly of the United Nations approved an expanded
version of the text and, in 1959 it went on to adopt a new declaration for child
welfare and protection. The Convention on the Rights of the Child, 1989 marked
the culmination of the efforts to bring the international community to recognirc
the needs of children (Justice Gulab Gupta, 2002, p. 195).
 Rights of Children
20.2.2 Declaration of the Rights of Child, 1959
Thc Preamble of this Declaration adopted by the General Assembly of the United
Nations on 20thNovember 1959 states:

Whereas the people of the United Nations have, in the charter, reaffirmed
their faith in fundamental human rights arid in the dignity and worth of
human person, and have determined to promote social progress and better
standards of life in larger freedom;

Whereas the United Nations has, in the Universal Declaration of Human

Rights, proclaimed that everyone is entitled to all the rights and freedoms
set forth therein, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
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I property, birth or other status;

Whereas the child, by reason of his physical and mental immaturity, needs
special safeguards and care, including appropriate legal protection, before
as well as after birth;

Whereas the need for such special safeguards has been stated in General
Declaration of the Rights of Child, 1924 and recognized in the Universal
Declaration of Human Rights and in the statues of specialized agencies and
international organizations concerned with the welfare of the children;

I Whereas the mankind owes to the child the best it has to give.
The General Assembly proclaimed this Declaration of the Rights of the Child
and called upon the parents, upon men and women as individuals, and upon
voluntary organizations, local authorities and national governments to recognize
these rights and strive for their obsel-vance, through legislative and other measures
progressively taken in accordance with ten principles. These principles are:
Principle ( 1 ) states that the child shall enjoy all the rights set forth in this
Declaration. Every child, without any exception whatsoever, shall be entitled
to these rights, without distinction or discrimination on account of race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, whether of himself or of his family.
As per Principle (2), the child shall enjoy ~pecialprotection, and shall be
given special opportunities and facilities by law and by other means to enable
him to develop, physically, mentally, morally, spiritually and socially in a
locality in normal manner and in conditions of freedom and dignity. In the
enactment of laws for this purpose, the best interests of the child shall be
the paramount consideration.
Under Principle ( 3 ) the child shall be entitled from his birth to :I ,::ilne and
nationality.
As per Principle (4) the child shall be enjoying the benefits of social security
He shall be entitled to grow and develop in health; to this end, special care
and protection shall be provided both to him and to his mother including
adequate prenatal care; the child shall have the right to adequate nutrition,
housing, recreation, and medical services.

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Special Rights Law . Principle (5) states that a child who is physically, mentally or socially
handicapped shall be given the special treatment, education and care required
by his particular condition.

Principle (6)stresses that the child, for the full and harmonious development
of his personality, needs love and understanding. He shall, wherever possible,
grow up in the care, in atmosphere of affection and of moral and material
security; a child of tender year shall not, save in exceptional circumstances,
be separated from his mother. Society and public authorities shall have the
duty to extend particular care to children without a family and to those
without adequate means of support. Payment of state and other assistance
towards the maintenance of children of large families is desirable.

Principle (7) mentions that the child is entitled to receive the education,
which shall be free and compulsory, at least in the elementary stage. He
shall be given an education which will promote his general culture and 1

enable him, on a basis of equal opportunity, to develop his abilities, his

individual judgment, and his sense of moral and social responsibility and to
become a useful member of society. The best interest of child shall be the
guiding principle of those responsible for his education and guidance; the
responsibility lies in the first place with his parents. The child shall have
full opportunity to play and recreation which should be direct to same
purposes as education; society and public authorities shall endeavour to
promote his enjoyment of his right.

Principle (8)states that the child, in all circumstances and among all, shall
be the first to receive the protection and relief.

As per Principle (9),the child shall be protected against all forms of neglect,
cruelty and exploitation; the child shall not be the subject of traffic in any
form. The child shall not be admitted to employment before an appropriate
age; he shall in no case be caused or permitted to engage in any occupation
or employment which would prejudice his health or education, or interfere
with his physical, mental or moral development.

Principle (10)states that the child shall be protected from practices which
may foster racial, religious and any other form of discrimination. He shall
be brought up in a spirit of understanding, tolerance, friendship, peace and
universal brotherhood; and in full consciousness that his energy and talents
should be devoted to the service of his fellowmen.

20.2.3 Convention on Rights of the Child, 1989

The Convention on the Rights of the Child, drafted by the U. N. Commission on
Human Rights, was adopted by the General Assembly of the United Nations on '
20thNovember 1989. The Convention is a set of international standards and
measures intended to protect and promote the well-being of children in the society.
The Convention draws attention to four sets of civil, social, economic and cultural
rights of every child. These rights are:
1 ) The Right to Survival: This right includes the right to life, the highest
attainable standards of health, nutrition and adequate standards of living. It
also includes the right to the name and nationality.
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2) The Right to Protection: This includes the freedom from all forms of Rights of Chlldren
exploitation, abuse inhuman, or degrading treatment and neglect, including
the right to special protection in situations of emergency and armed conflicts.
3) The Right to Development: It contains the right to education, support for
early childhood development and care, social security, and the right to leisure,
recreation and cultural activities.
4) The Right to Participation: It includes respect for the views of child, freedom
of expression, access to appropriate information, and freedom of thought,
conscience and religion.

Part I of the Convention on Rights of the Child, 1989 contains the 53 Articles in
all; some of the points of focus are the following:
P A child means any human being below the age of eighteen years unless,
under the law applicable to the child, majority is attained earlier.
> State parties recognized that every child has the inherent right of life.
P The child shall be registered immediately after birth and shall have the right
from birth to a name, the right to acquire a nationality and, as far as possible
the right to know and be cared by his or her parents.
9 State parties shall respect the right of the child to freedom of thought,
conscience and religion.
State parties recognized the rights of child to freedom of association and to
freedom of peaceful assembly.
k State parties should recognize and /or permit the system of adoption and
shall ensure that the best interest of the child shall'be paramount
consideration.
i; State parties recognized the right of disabled child to special care and shall
encourage and ensure the extension, subject to available resources, to the
eligible child of assistance for which application is made to those responsible
for his or her care, and which is appropriate to the child's condition and to
the circumstances of the parents or others caring for the child.
9 State parties shall take all appropriate measures to secure the recovery of
maintenance for the child from the parents or other persons having financial
responsibility of the child, both within the State and abroad. In particular,
where the person having financial responsibility of the child lives in a State
different from that of the child, State parties shall promote the accession to
international agreements or the conclusion of such agreements, as well as
the making of other appropriate arrangements.

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> State parties should recognize the right of the child to education and with a
view to achieving this right progressively and on the basis of equal
opportunity, they shall, in particular:
a) Make primary education compulsory and available freely to all;
b) Encourage the development of different forms of secondary education,
including general and vocational education, make them available and
accessible to every child, and take appropriate measures such as the
introduction of free education, and offering financial assistance in case
of need; 9
 Special Rights Law c) Make higher education accessible to all on the basis of capacity by
every appropriate means;
d) Make education and vocational information and guidance available and
accessible to all children;
e) Take measures to encourage regular attendance at schools and the
reduction of dropout rates.
k State parties should recognize the right of the child to be protected from
economic exploitation and from performing any work that is likely to be
hazardous or to interfere with the child's education, or to be harmfhl to the
child's health or physical, mental, spiritual, moral or ~ociaidevelopment. .
k State parties shall take legislative, administrative, social and educational
measures to ensure the implementation of the present Article. To this end,
and having regard to the relevant provisions of other international
instruments, State Parties shall in particular;
a) Provide for a minimum age of rnirlimua wages for admission to
employment;
b) Provide for appropriate tegtllation of the h6ut.s and cotlditioris of
employment;
c) Provide for appropriate penalties br other sanctions to ensure the
effective enforcement of the present Article.
State parties should undertake to protect the child from all forms of sexual
exploitation and sexual abuse. Fbr these purposes, State parties shall in particular
take all appropriate national, bilateral and multilateral measures to prevent:
a) The inducerhent or coercion of a child to engage in any unlawful sexual
activity;
b) The exploitative bse of children in prostitution or other unlawful sexual
practices;
C) The exploitativeuse of children in pornographic performances and materials.
MonitorZrig under Convention: A Committee on the Rights of the Child, set up
under Article 43 of the Convention, monitors the implementation of the provisions
of the Convention by the States who have ratified it. The Committee formed by
the elected members of the member-States reviews the report submitted by the
States and information received through other sources. The Committee exercises
its influence through dialogue because of the lack of sanctions and also because
some States due to their economic conditions cannot implement the provisions

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without assistance. It is pertinent to mention here that certain NGOs too are
involved in the process of monitoring.

202.4' The World Summit for Children, 1990

The World Summit for Children was a follow-up action to the Convention. It
was held at the UN Headquarters and was the first ever World Summit which
enabled national leaders to focus exclusively on issues affecting the future of
children. Among the goals adopted at this Summit were:
Reduction in child deaths and child malnutrition;
10 Increasing immunization level;
i Halving maternal mortality; and W i t s of Children

1 The universal ratification of the Convention on the Rights of the Child.

I 20.2.5 United Nations Conference on Environment and

Developnlent, 1992
The United Nations Conference on Environment and Development was held at
Rio de Janeiro, Brazil in June 1992. The real achievement was Agenda 21 which
reinforces the commitments made at the World Summit for Children. Specific
goals for child survival, development and protection were agreed upon at the
World Summit for Children and remain valid also for Agenda 21. Chapter 25 of
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this Agenda 21 is devoted to children and youth, and specifically urges the
governments:

k Important programmes to reach the goals set by the World Summit for
children;
Ratify and implement the Convention on the Rights of the Child;
Promote primary environmental care activities to improve the environment
by meeting basic needs and empowering local communities;
Expand children's education especially for the girl-child;
f Incorporate children's concerns into all relevant policies and strategies for
environment and development.

20.2.6 World Conference on Human Rights, 1993

In this Conference considerable energy was expressed for the protection and
implementation of the rights of the child. The World Conference reiterates the
principle of "first call for children". In this respect, it underlined the importance
of the role of the UNICEF in the protection and action for the rights of the child
"Human Right being with children's right" is the new perception given by the
UNICEF for the promotion of the rights of the child. An opinion was also
expressed that measures should be taken to achieve universal ratification of the
Convention as well as its effective implementation.

20.2.7 International Labour Organisation (ILO)

The ILO has been instrumental in protecting the rights of children and laying
down conditions and standards regarding wages and welfare of working children.
Some of the points of focus of the ILO are:

a) Prescribing and pressing uniform minimum age for employment of children

under all the Acts;
b) Identifying hazardous occupations and banning the employment of children
in such occupations;
C) Recommending laws, rules, regulations, Acts and legislations for protecting
children in employment and for progressive elimination of child labour;
and
d) Suggesting labour welfare and social welfare measure to protect working
children from exploitation and suitable machinery for enforcement and
implementation of provisions adopted for welfare of working children.
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Special Rights Law Some Other Instruments are:
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1) International Covenant on Economic, Social and Cultural Rights (ICESCR),
1966 (Article lo).
2) International Covenant on Civil and Political Rights (ICGPR), 1966 (Article
24).
3) Declaration on Social Progress and Development, 1969 (Part-I and Part-TI).
4) The United Nations Commission on Human Right 1994, which considered
the rights of children under a separate agenda.
5) The United Nations Commission on Crime Prevention and Criminal Justice,
1994, which adopted resolutions on violence against women and children
and international traffic in minors.
6) The Fourth World Conference on Women in Beijing, which paid special
attention to ensure right of girl-childre-ehand protecting them against violence
and other forms of stimes,
7) Conventions regafding minimum age: Minimum Age (Industry) Convention,
1919; Minimum Age (Agriculture) Convention, 1921;Minimum Age (Non-
Industrial Employment) Convention, 1932; Minimum Age (Revised)
Converlbiofl, 1937; Minimdm Age (Non-Industrial Employment)
Convention, 1937'; Minlmum Age (Underground Work) Convention, 1965;
Convention on Minimum Age for Employment, 1973, Minimum Age (Sea)
Converitiorl, 1920, Minimum Age (Trimmers and Strikers) Convention,
1921, ;md Minimum Age (Sea revised) Cohventioh, 1936.
8) Conventiorls Regarding Work at Night: Night Work of Young Persons
(Industry) eohvention, 1919; Night Work of h u n g Petsons (Non-Industrial
Occupation) Convention, 1946, Night Work of Young Persons (Industry)
(Revised) €onvention, 1948,

9) Some of the regional instruments on Human Rights also provide for the
protectioti of rights of the child but in a limited way.

With the above understanding of the international scenario, we will now turn to
the national laws related to children's rights and their protection.

20.3 INDIAN PERSPECTIVE OF CHILDREN'S

RIGHTS AND THEIR PROTECTION
Let us look at the constitutional provisions related to rights of children.

20.3.1 Constitutional Provisions

Children are the most vulnerable section of society. They become the victims of
exploitation and ill-treatment easily and can be directed into undesirable channels
by anti-social elements. The Constitution-makersreflecting their anxiety to protect
and safeguard the interest and welfare of the children incorporated Articles 15(3)
which provides that the State shall not be prevented from making any special
provision for women and children. This is in reference to provisions which are
to their advantage and which give them the extra protection they need.
 Pqpl~itotionof child~enby Qlffprent profit-makers for their personal gain has Rights of Children
&en wgdg punishable. In this regard Article 23 of the Constitution is a charter of
hvrnan dignity
- , snd provided that:

1) T ~ a f i cin human b ~ i g gand bepping and other similar forms of forced labour
~ F Gprobibit& apcj any cantfavention of this provision shall be an offence
pppishable in accordance with law;
2) Nothing jg this Article shall prevent the State from imposing compulsory
seryick for public ppmoses and in imposing such service the State shall not
maice apy dis~riminarionon grounds only of religion, race, caste or class or
any of them.
Article 24 of the Constitution, accepting the fact of prevalent child labour in
India, prayides tbat no child below the age of fourteen years shall be employed
tg work in any factory Qrmine or engaged in any other hazardous employment.
Considering the fact that Tndia is a welfare State, the fo~ndingfathers of the
~qnstitutjiprgcognjzed the importance of the rights of tbe child in a nation's
development.

Article 39(e) of the Constitution enjoins that the State shall direct its policy
towards securing the health and strength of worker, men and women; and those
children of tender age will not be abused; that citizens should not be forced by
economic necessity to enter into avocations unsuited to their age or strength.
Article 39(f) enjoins that the state shall direct its policy towards securing that
children are given opportunity and facilities to develop in a healthy manner and
ip canditions of freedom and dignity and that children and youth are protected
against exploitation and moral and material abandonment.
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Article 45 mandates that the State shall endeavor to provide free and compulsory
education for all children until they complete the age of 14.

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Article 5 1-A, on in the fundamental duties of the citizens of India, provides that
citizens shall act in such a manner that the nation constantly rises to higher levels
of endeavor and achievement. However, unless facilities and opportunities are
, provided to children, the nation stands to lose human resources and good citizens.

Thus, the constitution mandates that every child shall have the right to health,
well-being, education and social protection without any discrimination on the
ground of caste, birth, color, sex, language, religion, social origin, property or
birth alone. The national policies influence lawmaking, clarify laws and ultimately
1 have the effect of supporting rights. The national policies concerned with the
children are as follows:
? Natianal Children Policy;
National Child Labour Policy:
e National Education Policy; and
9 Na{iopal Policy of Handicapped Persons.
y ~ tit, i s unfortuqate that it has taken 52 years from the commencement of the
~~pstitvtion [Q initiate same measures by amending the constitution to start with
although 40% of the population is still illiterate and 10% of the total population
I is working as child labour.
Special ~ i g h t Law
s We will now highlight relevant laws and policies, in brief, below.

20.3.2 Laws that Prohibit and Regulate Child Labour in India

Most of the pre-independence laws on child-labour prevention prescribed
punishment for the child labour on the parents of the child and also employer,
while the post-Independence laws exempted the parents from punishment.

[Link] Pre-IndependenceLaws
The origin of statutory protection of child labour in India can be traced back to
the Indian Factories Act, 1881 which provides for the following:
Minimum age of seven years for employment.
Successive employment (employment in two factories on the same day)
prohibited.
Duration of employment (working hours not to exceed nine hours a day and
at least four holidays to be given in a month).
Factories employing one hundred or more persons were covered by this
Act.
Thus, Factories Act, 1881 does not prevent the employment of children. The
factories Act, 188 1 was revised in 189 1 with respect to the following matters:
> Minimum age increased to nine years.
> Hours of work (maximum seven hours per day with prohibition of work at
night between 8 p.m. and 5 a.m.).
Later on the Children Act, 1933 was enacted to prohibit the pledging of labour
of children below 14 years by parents. It prescribes punishment for parents and
employer of the child labour. It imposes minimum fine of Rs.200 to the employer
for employing child labour and also Rs.50 for the parents who pledged their
children for the labour.

Subsequently,the Employment of Children Act, 1938 was enacted. This Act was
passed to implement the Convention adopted by the twenty-third session of ILO
(1937). This Act:
Prohibited employment of children less than fifteen years old in occupations
connected with transportation of goods, passengers and mails or in the
railways.
Raised the minimum age of handling goods on docks from twelve to fourteen
years.
Provided for the requirement of a certificate of age.

[Link] Post-Independence Laws: The Child Labour (Prohibition

and Regulation) Act, 1986
After attaining the Independence, India enacted the Factories Act in the year
1948. Under Section 19 of this Act, children below the age of 14 years are
prohibited from employment in the factories and the employers who are employing
children as such are liable to be punished with imprisonment or fine or with
both.
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 Later on some oftbe provisioss in the enacted laws like the following prohibited Rights of Children
the &npjoyment of chilQres below a certain age.
i g The Plantation Lahopr Act, 1951;

11 @
The Indian Factories Act, 1948;
The Motor Transport Act a ~ the
d Apprentice Act 1961;
1 t The Minimum Wagas Act, 1948;
I The Atomic Energy Act 1962:
1
@

9 mp Shop6 and Cammercial Establishments Act 1969;

I r The Biddies and Cigar Workers (Condition and Employment) Act, 1966.
The problem of child labour conti~uosto pose a challenge before the nation.
Government ha5 b e ~ taking
n various pm-active measures to tackle this problem.
However, considering the magnitude and extent of the problem and that it is
sssentially a socio-economic problem inextricably linked to poverty and illiteracy
it requires: cancerted efforts from all sections of the society to make a dent in the
pmblem.

Way back in 1979,Government formed the first committee called Gurupadaswamy

committee to study the issue of child labour and to suggest measures to tackle it.
The committee examined the problem in detail and made some far-reaching
recommendations. Essentially, it observed that as long as poverty continued, it
would be difficult to totally eliminate child labour and hence, any attempt to
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abolish it through legal recourse would not be a practical proposition. The
committee felt that in the circumstances the only dternatjue,left was to ban child
labour in hazardous areas and to regulate grid meliorate the conditions of work
in other areas. It recommended aara multiple-policy approach was required in
dealing with the problems oi&orking children.

Based on the recommendation of Gurupdaswarny committee, the Child Labour

(Prohibition and Regulation) Act was enacted in 1986. Since this Act is very
comprehensive we will focus our discussion an some important provisions of
this Act.

The Child Labaur (Prohibition and Regulation) Act, 1986: This Act was
1 enacted with a view to rationalizing earlier legislation on child-labour, progressive
elimination of child labour in hazardous employment, and regulation of conditions
! of child-labour in non-hazardous industries. The Act, thus, prohibits employment .
of children in certain specified hazardous occupations and processes, and regulates
I the working conditions in others. Further, the list of hazardous occupations and
processes is progressively being expanded on the recommendation of Child
Labour Technical Advisory Committee constituted under the Act. The main and
the most important point was that this Act aimed at identifying more hazardous
processes and industries with a view to banning child labour in those industries
and regulating conditions for c h i l b n in nan-hazardous occupations.

Definiti~g~fsbildl g b c ~ ~The
r : National Sample Survey defined 'child-worker'
as "a person below the age of 14 years who is wage-earner". The concern for
working children, a Bangalore based organization described a child labour as "a
Special Rights Law person who has not completed fifteen years of age and is working with or without
wage on apart time or full time basis." The actual number of child labour vary ,
according to deferent concepts and definition as to what exactly child labour
means. It is estimated that a number of working children in India is close to 100
million. The estimated data shows that 10% of the total population of India is
child-labour.

With this clarity on the definition of child labour, let us now look at some aspects I
of CLPRA.
a) The Objectives of the Child Labour (Prohibition and Regulation) Act,
1986 are:
To ban the employment of children, i.e. those who have not completed
their fourteenth year, in specified occupations and processes;
To lay down procedures to decide modifications to the schedule of
banned occupations or processes;
To regulate the conditions of work of children in employment where
they are not prohibited from working.
b) Significant Provisions of the CLPRA: The preamble to the Act states that
it is an Act to prohibit the engagement of children in certain employment
and to regulate the conditions of work of children in certain other
employment. The Act, thus, classifies all establishments into two categories:
Those in which employment of child labour is prohibited, and
Those in which the working conditions of child labour shall be regulated.
CLPRA 1986, Section 3: 'No child shall be employed or permitted to work
in any of the occupations set forth in Part A of the Schedule or in any
workshop wherein, any of the processes set forth in Part B of the Schedule
is carried on'.
Gazette constitutes an advisory committee called the Child Labour Technical
Advisory Committee for the purpose of addition of occupations and process
to the Schedule (CLPRA 1986, Section 5).
Reacting liberally to the problem of child labour in People S Unionfor
Democratic Rights v Union of India (1982, p.235), a liberal interpretation
was given by the Court to the term 'hazardous employment' to include
employment in construction work and directed that the schedule to the
Employment of Children Act, 1938 should be suitably amended to
include the construction industry in it.

c) Regulation of Conditions of Work :Part 111 of the Act which came into
force from 26-5- 1993 lays down provisions for regulating the conditions of
work of children and applied to an establishment or a class of establishments
in which none of the occupations or processes referred to in Section 3 are
carried on.

Hours and Periods of WorWeeklyHolidays: The conditions regarding hours

and periods of work to be performed by a child have been laid down in
Section 7 of the Act, and are as follows.
 e No child shall be required to work in excess of hours which are Rights of Chlldren

I prescribed for such establishments.

I No period of work shall exceed three hours.

No child shall work for more than three hours unless he has had an
interval of at least one hour.
Inclusive of period of rest, periods of work shall not spread over six
hours.
II No child shall work from 7 p.m. to 8 a.m.
I There shall be no overtime for a child.
No child shall be required or permitted to work in any establishment on
any day on which he has already been working in another establishment.

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Every child shall be allowed a holiday of one whole day in each week.
The day shall be specified in a notice exhibited in some conspicuous place.
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The day so notified shall not be altered more than once in three months.
'
d) Notice to Inspector Regarding Employment of Children: Section 9 lays
down that every occupier who employs or permits any child to work shall
within a period of thirty days from the date of such employment send to the
Inspector within whose local limits the establishment is situated a written
notice containing:
Name and situation of establishment;
The name of the person in actual management of the establishment;
i
I The address to which communication relating to an establishment should
be sent; and
'
b
The nature of the occupation or process carried on in the establishment.
In case of a dispute regarding the age of any child it will be referred to the
prescribed medical authority.

e) Maintenance of Registers: Section 11 mandates the occupier of an

establishment where children are employed to maintain a register showing:
name and date of birth of every child employed,
hours and periods of work, intervals of rest for a child,

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nature of work of any such child,
such other particulars as may be prescribed.
This register is to be made available for inspection to an Inspector at all
times. Inspectors are appointed by the appropriate government under Section
17 for securing compliance with the provisions of this Act.

f) Health and Safety Provisions: The appropriate government may, by

notification in the Official Gazette, make rules for the health and safety of
children employed or permitted to work under Section 13 of the Act. Rules
may provide for all or any of the following: i) cleanliness; ii) disposal of
wastes and effluents; iii) ventilation and temperature; iv) dust and fumes;
v) artificial humidification; vi) lighting; vii) drinking water; viii) latrines
Special Rights Law and urinals; ix) spittoons; x) fencing of machinery; xi) work at or near
machinery in motion; xii) employment of children on dangerous machines;
xiii) instructions, training and supervision in relation to employment of'
children on dangerous machines; xiv) device for cutting off power; xv) self-
acting machines; xvi) easing of new machinery; xvii) floor, stairs and means
of access; xviii) pits, sumps, opening in floors, etc. xix) excessive: weights;
XX) protection of eyes; xxi) explosive or inflammable dust, gas, etc; xxii)
precautions in case of fire; xxiii) maintenance of building; and xxiv) safety
of buildings and machinery.

Failure to give notice, failure to maintain a register or making any false

entry, failure to display a notice or failure to comply with or contravene any
other provision shall be punishable with fine whish may extend to ten
thousand rupees or simple imprisonment which may extend to one month
or both.

g) Procedure for prosecution relating to offences: Section 16 of the Act

provides the following procedure relating to offences;
i) Any Person, Police Officer or Inspector may file a complaint about the
commission of an offence under this Act in any court of competent
jurisdiction.
ii) Every certificate as to the age of a child which has been granted by a
prescribed medical authority shall, for the purposes of this Act, be
conclusive evidence as ta the age of the child to whom it relates.
iii) No court inferior to that of a Metropolitan Magistrate or Magistrate of
the first class shall try tiny offence under this Act.
h) I'cnulties under the Act: The penalties under this Act are relatively more
stringent than the earlier Acts and violating the provisions relating to child
labour id itef diil other Acts tesults in a penalty under this Act (Section 14).
The penaltics under this Act are as follows:
Whoever employs any child or permits any child to work in any
hazardous employment shall be punishable with imprisonment for a
term which shall not be less than three months but which may extend to
arle year, or with fine which shall not be less than ten thousand rupees
but which may extend to twenty thousand rupees, or with both. For a
repeat offence, the punishment is imprisonment for a term which shall
hot be less than six months but which may extend to two years.

For failing to give notice to the inspector as required by Section 9, or

failing to maintain a register as required by Section 11, or making any
false entry in the register, or failing to display an abstract of Section 3,
or failing to comply with any other provisions of this Act or rules, the
punishment is imprisonment which may extend to one month, or with
fine which may extend to ten thousand rupees, or both.

It is to be noted that the Act provides for both fines as well as imprisonment.
But, in practice, in those few instances where the employer is prosecuted,
he is generally fined.
 @ The Supreme Court, in M. C. Mehta v State of TamilNadu (1997, p.699) ~~C~
case, issued directions to State Governments to fulfiH the legislative
intendment behind the enactment. The offending employers were
I
t directed to pay compensation of Rs.20,000 for every child employed.
In N. Bhageerathan v State (1999, p.632), it was held that if an accused
or employer is unable to prove that children employed were not below
14 years, he can be convicted for the offence of employing child labour.

1I 1) Some positive features of the Act: These include the following.

It increases and makes more stringent the penalties for employing child
labour in violation of the law for factories, mines, merchant shipping
and motor transport [Section 15(1) and (2)].
It empowers the Union government to bring into force provisions that
regulate conditions of work of children in non-hazardous employment
and also empowers state governments to make rules for further
regulation. It provides the machinery, i.e. the Child Labour Technical
Advisory Committee, for adding to the list of occupations and processes
in which the employment of child labour is prohibited. (This was not
possible in the Employment of Children Act 1938).
a It permits any person, besides a police officer or inspector, to file a
complaint against anyone employing or permitting a child below fourteen
in the prohibited occupations and processes.
a It makes the display of Sections 3 and 14 of CLPRA a mandatory
requirement for the railway administration, the port authority, and to
the occupier.

Critique of the laws and law reform: The CLPRA 1986 needs to be
amended for better implementation and enforcement. The following are the
areas of concern that need legal reform.

CLPRAcovers only 10per cent of the total working children. Moreover,

the agricultural sector, which constitutes more than 75 per cent of the
child employment, is not covered by the Act. The CLPRA is not easy to
enforce in the unorganized sector because the units are numerous and
unregistered. The employer-employee relationship is continuously
changing, and frequently the unit is a tiny family-based one. Most of
these units spring up and disappear overnight and are very difficult to
keep track of, in the absence of any requirement of registration.

Section 3 of the CLPRA keeps the occupation, work or process that is

carried on by the occupier with the aid of his family out of the purview
of the Act. The intention of the Act is to exempt a family enterprise in
which all or several of the members of the family are involved. It was
not intended to exempt framed-out, piece-rate work, where the home
merely replaces the factory premises. This proviso is abused by
employing children in respect of families and work experience acquired
by [Link] provision helps employers to 'pose as family members'
the children working in their premises and thus continue to exploit the
[Link] any action is taken against any employer for employing
Special Rights Law a child, :he excuses given aiz that 'the khdd is a relative and is helping
in housework' or 'the child being trained for a family trade' and so on.
Therefore, thehen is a need to add to the provision that 'it shall be presumed -
that occupier is also the employer for-the phrpose of the Act and the
onus to prove that the ~ M l d Is ~ h e ~ bofe his
r or her family would test
on the occupiers
-
e

20.4 EVOEUTION OF CHILD LABOUR POLICY

IN INDIA
iI
The circumstances of ehild labour are influenced by many fkctors. NO single
cause can be isolated for the prevalence of child labour, Following are the
important causes that led to child labour in India,
Poverty, parental illiteraq anel ignorance, tradition of makiiig children learn
the family skills, absence af ~tdversalcompulsory primary education, non-
availability of and non-accessibility to schools, irrelevant and unattractive
school etlrriculum.
Employer's preference to children for theit cheap labour, iaability of children
to organize against exploitation, family work, level of techtiology, apathy
of trade unions, ineffective enforcement of the legal provisionS pertaining
to child-labour.
Many steps ate being taken by the frldiah government from the pre-
indepefldehce period far the eradicatioa of these drastic problems but till
now the ptbblem remaihs unsolved and the fnagnltude of child labour has
been growing day-by-day dde ta pbverty, id spite of evolution in the child
lablur golby bf India.
The f~lld*ilig chart snows the evolution of Child Labour Policy in India.
Table 20.1:
- --
Evalation of Child Labour Pdlicy in Iddfa
SI. &&dt Date Detail
No
1 Ratification df Xfl, Night July 1921 Night work by young persons in any
Work 0f youhg petsbtls public or private industrial undertaking
(lfldustty), Convention prohibited.
1919 (No.6).
. .- -
2 Ratification of ILO, November Employment of young persons as
h d h u m Age
~ ~ of Tfimmers 1922 trimmers and stokers in vessels or
and Stokers Convention, ports prohibited.

November Compulsory medical examination of

1922 children and young persons employed
at sea provided for.

February Pledging of labour of children

(Pdedging of Labour) Act 1933 prohibited and penalty for parents/
guardians pledging child labour
prescribed. Employment of children
below fifteen years prohibited in
certain occupations.
 --~-

I
Rights of Children
5 Enactment of Employment February Employment of children below
of Children Act, 1938. 1938 fifteen years prohibited in certain
occupations.
6 Adoption and Enactment November Prohibition of employment of
of the Constitution of India 1949 children below fourteen years of age
Act by the Constituent in factories, mines, and hazardous
Assembly. employment in terms of a
fundamental right; and directive
princip1c.r laid down against the abuse
of the tender age of the children and
for free and compulsory education for
children up to fourteen years of age.
7 Ratification of ILO. Night July 1950 Night work by children and young
Work of Young Persons persons abolished.
(Industry) Convention
(Revised) 1948 (No.90).
8 Ratification of ILO, July 1950 Employment of children under
Minimum Age (Industry) fourteen years of age in public or
Convention 1919 (No.5) private industrial undertaking
prohibited.
9 Report of the National August Recommended combination of work
Labour Commission. 1969 with education and flexible
employment hours, which would not
inhibit education.
10 Ratification of ILO. March 1975 Employment of persons below
Minimum Age sixteen years o f age for work
(Underground Work) underground in mines prohibited.
Convention 1965
(No. 123)
11 Report of Gurupadaswamy December Recommended setting up of Child
Committee 1979 Labour Advisory Board; fixation of
minimum age of entry to any
establishment; strengthening of
enforcement machinery; formulation
of effective educational policy with
emphasis on integration of
educational requirements with local
crafts.
12 Establishment of the March Toreview implementation of existing
Central Child Labour 1981 laws; to suggest legislative and
Advisory Board with welfare measures for working
labour minister as children; and to recommend to
chairman. industries where child labour should
be eliminated.
13 Enactment of Child December Employment of children below
Labour (Prohibition and 1986 fourteen years of age prohibited in
Regulation) Act, 1986. specific occupations and processes;
procedure for modification of
schedule of banned occupations or
processes laid down; regulation of
working conditions for children in
non-prohibited employment provided
Special Wgbb Law
for; penalties for violation of the law
provided for; and uniformity in
definition of 'child' in related laws
provided for.
14 Adoption of the National August Provided for a legislative action plan;
Child Labour Policy 1987 1987 focus laid on general development
programmes for the benefit of working
children; and formulation of project-
based action plan in areas of high
concentration of child labour.
15 Report of the Task Force December Recommended amendments t~ child
on Child Labour set up by 1989 labour laws and National Palicy on
the Child Labour Advisory Child Labour.
Board under the
Chairmanship of Dr. L. M.
Singhvi
16 Report of the National July 1991 Recommended enactments of
Commission on Rural Compulsory Primary Education Acts
Labour by states; creation of non-formal
education centres; enhancement of
outlays for elementary education
guaranteed; wage employment for
parents of working children; universal
prohibition of child labour; media
publicity against child labour.
17 Report of the study group 2002 Recommended the enactment of Child
on women and children of Labour (Prohibition and Education)
the I1 National Commission Bill.
on Labour

Source: Asha Bajpai. 2005. Child Rights in India: Law, Policy and Practice. Delhi: Oxford
University Press.

20.4.1 National Policy on Child Labour

The National Policy on Child Labour is a landmark endeavor in the progressive
elimination of child labour in India. A National Policy on Child Labour has been
formulated in conjunction with the legal measures to address the socio-economic
issues having a bearing on child labour and to provide a framework for concrete
programmes of action. The policy attempts to deal with the situation where the
children work, or are compelled to work, on a regular or a continuous basis to
earn wages for themselves and/or for their families, and where their conditions
of work result in their being severely disadvantaged and exploited, and where
abuses connected with such factors impacting on wage-employed children need
to be given close attention by the state for rectification, amelioration, and
regulation through specific legal and administrative instruments and measures.
The policy encompasses action in the fields of education, health, nutrition,
integrated child development, and employment.
The National Policy on Child Labour is set under the following three heads:
The Legislative Action Plan.
Focusing on general programmes for benefiting child labour, wherever
possible.
 pr@pct-basecJ plan of action in areas of high concentration of child labour Rights of Children
engaged in wagefquasi-wageemployment.
The Qouemment IS committed ta eliminate child labour in all its forms and is
mavine is this direction in a targeted manner. The multi-pronged strategy being
f~Jlsweidby the Government to achieve this objective also found its echo during
the recent discussions held in the Parliament on the Private Member's Bill. It
was unanimously recognized therein that the problem of child labour, being
inextricably linked with pQvertyand illiteracy,cannot be solved by the legislation
alone. The ideal scenario on child welfare would be when every child enjoys the
fullnew of ehildhoad through education, recreation and adequate health facilities.
r it is impossible to attain these facilities by the child labour. All the children were
able to enjoy the completeness of childhood only:
-I when the true conscience of the nation is awakened;
when all. the policy makers and the bureaucrats take thz issue of child labour
seriously and commit themselves to the cause of the holistic development
of every child in India;
when the employers would not even contemplate the idea of employing a
child for any work which might deny the child of a normal childhood;
* when all the parents will become aware of the jeopardy of child labour and
take upon themselves the duty of caring for the physical, social, psychological
and mental development of the child;
when all the policies laid down by the Government under various plans and
laws were implemented properly;
when the government and the legal personnel conduct campaigns to educate

A-

che& your Progress

Notes: a) Space given below the question is for writing your answer.
b) Check your answer with the one given at the end of this unit under
"Answers to 'Check Y ~ u Progress'
r Questions".
1) Define child-labour,
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
2) What are the objectives of the CLPRA, 1986?
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
Special Rights Law
3) Explain how CLPRA, 1986 helps in regulating the conditions of work
by children.

20.5 RIGHT OF CHILDREN TO FWF AND

COMPULSORY ERUCATIQN
Indian Parliament enacted the Constitution (86@Amendwnt) 4 c f 20Q2 yhich
aimad at making education a fundamental right. This Amendment Act has 44ed
a new Article 21-A which made education of all children up ta the age of 14
years a fundamental right. @ povides that the "state shall provide free end
compulsory education to all cbiJ4r.w,qf {be age of 6 to 14 years in suck mmnsr
as the state may, by law, determine".

Thus, elementary education has become the right of every child. Rlght ta edwafipfi
of every child is clearly a humar) fight. Education is important as it enables the
child:
To develop and realize herlhis full potential as a human being;
To develop the ability to think, question and judge independently; I
e To develop a sense of self-respect, dignity and self-confidence;
To develop and internalize a Sense qf moral values and critical judgment;
I
To learn to love and respect fellow human beings and nature;
To develop civic sense, citizenship and values of participatory dernoeracy;
t
and
To enable decision-making.

Education is a human right with immnse PQyer tp: qqsfgrm. On its foundation
rest @cornerstones of freedom, democracy, md suetainable burn* deyelogrnent.
Educfatb~i s desired f ~ itself
.%, r as it opens up a vast world of oppartunitiks and
ideas to the edueakd persgn. #ii s ak2
- \of. great instrumental value in the process
of economic growth and development Edgfgfigg playa a critical role in
&mographic transition; female education, in pa$c;slq-, i s seen to be importan!
~f economic growth and development (UNIGEE 1999).Educatisn
jn the gro,t;~q
is the process of lowering fertility and mortality. Primary
also piayg critical role .:,
. v,-

schooling is associared with bktter health outcomes. There is a strong correlation

24
between literacy and life expectancy. The returns to education are large and Rights of Children
positive. Schooling has been seen to have a positive impact on agricultural output.
In political and social terms too, schooling creates an educated population and a
more constructive [Link] empowers and empowerment affects larger
social processes (Swarninathan and Rawal, 2000, p.68). In recent decades, the
importance of education has been reflected in increased budgetary allocations to
basic education, compulsory schooling legislation, and widespread media
attention to education and development issues.
Millions of young people growing-up around the world are unable to build decent
lives for themselves because they are denied their right to education. The State
of the World's Children, 1999 points out that 130 million children in the
developing world are denied this right - almost two-thirds of them are girls.
Denying girls their right to a quality education effectively denies them all other
human rights and minimizes the chances of successive generations, particularly
the chances of their daughters, to develop to their fullest potential. Thus, as the
world has become more complex, school systems have expanded in both size
and complexity along with the challenges they face. People see growing disparities
and gaps in costs, quality, achievement and certification, and this has led to a
'crisis of confidence' in public schooling throughout much of the world.
Regarding the comprehensive details of the right of child to education in the
Indian context, including the ~ i g hoft Children to Free and Compulsory Education
Act, 2009, you do revisit Unit-8 of Block-2 of this Course, i.e. MAEE-002.

20.6 JUVENILE JUSTICE

"So long as little children are allowed to suffer, there is no true love in the world."
Justice is everybody's right. Children's justice is to be ensured by adults because
they cannot lobby for themselves. As mentioned in Section 20.2 above, several
measures have been taken for protection of children at international level.
The Juvenile Justice (Care and Protection of Children) Act 2000 is the primary
legal framework for Juvenile Justice in India. The Act provides for a special
approach towards the prevention and treatment of juvenile delinquency and
provides a framework for the protection, treatment and rehabilitation of children
in the purview of the Juvenile Justice System. Prior to discussing this Act, let us
have a glance at the background of juvenile justice in India.

20.6.1 Background of Juvenile Justice

The Juvenile Justice Policy in India is structured around the constitutional mandate
presumed in the language of Articles 15(3), 24, 39(e), ( f ) , 45 and 47 - The
constitution mandates child protection as a special provision in Article 15(3);
Article 24 prevents children from working in hazardous situation below 14years;
Article 39(e), ( f ) provide protection of children's healthy development; Article
45 provides for the Right of Children for Free and Compulsory Education; and
Article 47 prohibits the consumption of liquor and intoxicating drugs, except for
medical purposes.
Indian Penal Code (1860) provides protection of children from: sexual abuse
(sections 354,375 and 509); procuration, importation and selling of minors for
prostitution 366, 366A, 366B and 372); buying minors for the purpose of
prostitution (Section 373); and non-consensual assault of male children (section
25
Special Rights Law Juvenile Justice Act, 1986 provides for criminal or quasi-criminal jurisdiction
covering proceedings for both the categories of children, viz. delinquent juveniIrs
as well as the neglected juveniles.

International covenants, such as the UN Convention on the Rights of the Child

(CRG) and the UN Standard Minimum Rules for Administration of Juvenile
Justice (Beijing Rules), 1985, UN Guidelines for the Prevention of Juvenile
Delinquency (the Riyadh Guidelines), 1990, UN Resolution 1997 -Administration
of Juvenile Justice.

20.6.2 Juvenile Justice (Care and Protection of Children) Act,

The Juvenile Justice (Care and Protection of Children)Act 2000 has been enforced
in the whole of India except the State of Jammu & Kashmir. On coming into
.force this Act has repealed and replaced the Juvenile Justice Act, 1986, The
Juvenile Justice (Care and Protection of Children) Act has been enacted to
consolidate and amend the law relating to juveniles in conflict with law and
children in need of care and protection by providing for proper care and protection
and treatment, by catering to their development needs, and by adopting a child-
friendly approach in the adjudication and disposition of matters in the best interest
of children and for their intimate rehabilitation through various institutions
established under' this enactment.

The Juvenile Justice (Care and Protection of Children) Act, 2000 contains five
I
chapters accommodating 70 sections. Chapter I relates to the shol-t title, extent
and commencement of the Act, definitions of various terms, the expressions
used therein and the continuation of inquiry in respect of a juvenile who has
ceased to be a juvenile. Chapter II, containing 25 sections, deals with juveniles
in conflict with law and the establishment, procedure and powers of Juvenile
Justice Board, observation homes, and special homes for these juveniles. It also
deals with custody of a child in conflict with law. It defines the provisions for
bail and information to the parents or guardian. It also includes special offences
in respect of juveniles and punishments thereof. Chapter 111, containing 10
sections, deals with a child in need of care and protection. It deals with the
establishment of child welfare committees, their procedure and powers. It also
contains provisions regarding children's homes, shelter homes, their inspection
and social auditing. Chapter IV, incorporating 6 sections, deals with the processes
of rehabilitation and social reintegration, adoption, foster care, sponsorship,
after-care organizations, their linkages and co-ordination. Chapter V contains
miscellaneous provisions, link attendance, appeal, revision, transfer between
various homes contribution of parents, funds, special juvenile police unit, powers
of delegation, making rules and removing difficulties.

The JJ (C & P) Act applies to persons who have not completed the age of 18
years. They are referred to as children or juvenile. The term juvenile refers to
those children who are either alleged to have committed an offence or found to
have committed one. Within the definition of child a large number of categories
'in need of care and protection' have been included from the deprived and
marginalized sections of society as well as those with different needs and
vulnerabilities. Protection of the JJ (C & P) Act for the children falling under it$
purvlew may be obtained by the police, public servants, non-governmental
26
 organizations, authorized individuals or the children themselves. The JJ (C & P) Rights of Children
Act has made provision for the stationing a juvenile I child welfare officer in
each police station and a juvenile police unit in each district. Any child who is
taken charge of has either to be handed over to the special police officer or to the
competent authority. The competent authority for 'children in need of care and
protection' is known as the Child Welfare Committee (Committee) and for
'juvenile in conflict with law' the Juvenile Justice Board (Board). The Committee
shall consist of five members among whom one shall be a woman and another
expert on matters concerning children. The Board shall consist of a magistrate
and two social workers, one of whom shall be a woman. All the members need
to have special knowledge of child psychology and child welfare. All inquiries
I under the JJ (C & P) Act should be completed within a period of four months.
Subject to other provisions of the JJ (C & P) Act and any rules made under it the
competent authority is required to follow the summons procedure in holding
inquiries. No appeal lies against a finding that the child did not need any state
care or had not committed an offence. In other cases one appeal can be preferred
to the court of sessions and the High Court may in any case exercise its power of
revision.

The responsibility of taking care of children during the pendency of their

proceedings before the Board as well as after disposal resides with Children
Homes, whether established or recognized by the state government. Observation
Homes are required to look after children only during the pendency of their
cases before the Board. And, Special Schools are required to receive the children
after disposal when so directed. A child may also be kept with parent or guardian
during the pendency of proceedings, if found suitable. The following orders may
be made in case of a child found to have committed an offence:
Permission to go home after advice or admonition following an inquiry.

1
xm
With counseling of parent or guardian and the child.
Group counseling and similar activities.
Community service.
Payment of fine by parent or the child if the child is above 14 years of age
and earning money.
Release on probation of good conduct under the care of parent, guardian or
other fit person with or without surety for a maximum period of three years.
Release on probation of good conduct under the care of a fit institution for
not more than three years. -
Residence in a special home for not less than two years if the child is over
seventeen years but less than eighteen years, and in other cases till helshe
ceases to be a child.
A child found to have committed an offence cannot be sentenced to death or
given life imprisonment. Nor can a child be committed to prison in default of
payment of fine or furnishing security. In case of a child above the age of 16
years, on the request of a competent authority the state government may make
special arrangements for his protective custody.
Special Rights Law in a Children Home or Shelter Home till they are rehabilitated or they attain the
age of eighteen years.

Chapter I V of the Jf (C & P) Act lays down some other measures for rehabilitation
and reintegration which may be undertaken for children either found to have
committed arl offefice ur found to be in need of care and protection. It provides
that the process of rehabilitation and reintegration of children shall be carried
out alternatively by adoption, foster-care, sponsorship and sending the child to
an after-care organization. A child may be given in adoption to any family or
individual irrespective of the number or gender of living biological children.
Foster care may be used for short or extended period till the children may return
to their own families or a permanent family is found for them, To provide
additional shpport ta families or institutions, sponsorship programmts are
envisaged for the medical, educational and other needs of children that could
improve the quality of their lives.

With a view tt, provide for better implementation and administration of the
provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 as
amended by the Juvenile Justice (Care and Protection of Children) Amendment
Act, 2006 in its true spirit and substance, the central government, in pursuance
of the said provisions and in the exercise of the power conferred by the proviso
to sub=sedtiofi(11 of section 68 of the Juvenile Justice (Cate and Protection for
Childtea) Act 2000 makes the rules and lays down the fundamental principles to
be applied in administration of juvenile justice such as: principle of presumption
of innocence, principle of dignity and worth, principle of right to be heard,
principle of best interest, principle of family responsibility, ptinciple of safety
(no harm, no abuse, no neglect, no exploitation and no maltreatment), principle
of positive measures, principle of non-stigmatizing semantics, decisions and
action, principle of non-waiver of rights, principle of equality and non-
discrimination, principle of right to privacy and confidentiality, principle of last
resort, principle of repatriation and restoration, principle of fresh start, among
others, These principles are to be borne in mind by all the concerned stake-
holders while discharging their duties under the Act.

The Supreme Court has always been sensitive and active to the problems and
needs of juvenile offenders. The Constitution also mandates the Court to interpret
the provisions in such a way so as to provide relief and give individualized
treatment, acting more as parent's parties.

Some Relevant Cases -Important Judgements: Regarding basic rights and

plight of juvenile offender, P. N. Bhagwati and R. S. Pathak, JJ., in Munna v
state of U. l? (1982, p.546), obscrved that:
The Supreme Court expressed similar concern in various cases. Rights of Children

In Sheela Barse v Union of India ( 1 986, p.596), the Court condemned and
discouraged the detention of children below I6 years in jail. In a milestone
decision, the court observed: "It is a matter of regret that despite statutory
provisions and frequent exhortations by social scie~atists,there are still a
large number of children in differentjails in the country ...". On no account
should the children be kept in jail and if a State Government has not got
sufficient accommodation in its remand homes, the children should be
released on bail instead of being subjected to incarcc~rationin jail."

Krishna Iyer, J., in Hiralal Malick v State oJ'Bihar(1977, p.44), with respect
to the sentencing policy towards juvenile delinquents, observed: "The family
tie of the juvenile in jail must be kept alive.'We directed that the appellant
who was quite a young boy when the offence was committed shall not be
forced to wear the uniform of a convict provided his guardians supply his
normal dress. The stand was reiterated in the case of Phul Singh v State of
Haryana (1979, p.413) as well.

As for determinetion of age, it was laid down, in Bhola Bhagat v State of

Bihar (1997, p.7201, that if the accused raises the plea that he is a juvenile
and if the Court entertains any doubt about his age, it has to hold an inquiry
itself for determination of his age or cause an inquiry to be held and seek a
report.

In Bandela Aillaiah v State (1995, p.l083), it was observed that: "The.

Juvenile Justice Law appears to be so emphatic and mandatory that no
juvenile delinquent shall be tried for any offence charged against him or
must be convicted or sentenced far such an offence. On the other hand, a
special treatment should be given to him for his care and protection by way
of correctional measures." But, at the same time: "It is absolutely essential
and this is something which we wish to impress upon the State Governments
with all the earnestness at our command that they must set up Juvenile
Courts, one in each district, and there must be a special cadre of Magistrates
who must be suitably trained for dealing with cases against children ...,
because these cases require a different type of procedure and qualitatively a
different kind of approach."

To mete out justice is a grave and critical responsibility and it becomes graver
when the person in question is a juvenile. The Juvenile Justice (Care and
Protection) Act, 2000 was passed promising to usher in a new era of juvenile
justice, keeping in mind various international instruments ratified by the
Government of India. However, the Act has paid mere lip-service to many issues
which required immediate attention. Not merely a legislative but a multipronged
approach of logistic support by the State and a sensitized system are needed to
deal with the problems of juveniles to fulfill the objectives of law.

It can be concluded that, in spite of having such a comprehensive legislation in

place, it is often left that there is an inherent risk of violation of children's right
within the juvenile justice system. This can be attributed not only to the weak
implementation of the legislation but also to poor awareness about the same
amongst the various authorities and stake holders. There have been numerous
reports to the effect that children in need of care and protection continue to
29
Special Rights Law languish in poorly managed institution, while children who come in conflict
with the law continue to be treated as criminals. Therefore, one cannot understand
the need to have a "child-friendly" juvenile justice system with appropriate
prosecutors and protocols in place for police, prosecutors, judges, protection
officers and home staff, all of which are crucial to ensure the protection of
"child rights" and to ensure that the system works in the best interest of the
child.

The improvement of the juvenile justice system is a gradual process which requires
intensive and continual follow-up as well as long-term commitment rather than
a series of 'ad hoc' exercises and 'knee-jerk' responses. Training programmes
should be based on participatory techniques that promote sensitization and
behavioral changes among the various stake-holders responsible for the working
of the juvenile justice system. Training also creates opportunities for stake-holders
to interact amongst themselves and get a better understanding of the constraints
and bottlenecks at various levels. It is vital for the authorities involved in the
juvenile justice system to build effective partnerships with civil society. Non-
Governmental Organizations (NGO's) have the capacity to provide community-
based life-skills programmes, 'group counseling', community work opportunities,
and open 'custody group homes' for children in conflict with law. Voluntary
sector organizations can, thus, help the governmental agencies to engineer a
substantial shift towards non-custodial alternatives for corrective measures
involving juveniles.

Check Your Progress

Notes: a) Space given below the question is for writing your answer.
b) Check your answer with the one given at the end of this unit under
"Answers to 'Check Your Progress' Questions".
4) What are two different categories of children covered under the Juvenile
Justice System in India?
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11 constitution of a National Commission and State Commissians for Protection of
Child Rights and children's courts for providing speedy trial of offences against
children of violation of child rights.

20.7.1 National Commission for Protection of Child Rights

Section 3 of the Act envisages the constitution of a body known as the National
Rights of Children

Commission for the Protection of Child Rights. While sections 17 provides for
constitution of State Commission. These Commissions, national and state, have
similar functions and powers at national and the conicerned state levels,
respectively.

1 [Link] Fu~etions
Section 13 specifies the functions of the Commission as follows.
1) To examine and review the safeguards provided by OF under any law for the
time being in force for the protection of child rights mJrecommend measures
for their effective implementation;
2) To present to the Central Government, annually and at such other intervals
as the commission may deem fit, reports upon the working of those
safeguards;
3) To examine all factors inhibiting the enjoyment of rights of children affected
by terrorism, riots, toyturc and exploitation, disaster, domestic violence, HIVI
AIDS, trafficking, maltreatment, pornography and prostitution, and
recommend appropriate remedial measures;
4) TQ1wk into the matters relating to children in distress, marginalized and
disadvantaged childrep without family, and children of prisoners and
recommend appropriate remedial measures;
5 ) To spread child rights literacy and promote awareness of the safeguards
available for protection of these rights;
To inspect or cause to be inspected any Juvenile or custodial homes, or any
other institution meant for children, under the control of Central Government
or any State Government or any other authority, including any institution
run by Social Qrganizations, where children are detained or lodged for the
purpose of treatment, reformation or protection and take up with these
authorities for remedial action, if found necessary;
To inquire into the complaints of violation of child rights including suo
motu notice and recommend initiation of proceedings with appropriate
authorities of matters of:
Deprivation and violation of child rights;
Non-implementation of children laws;
Non-compliance with policy decisions, guidelines and instructions for
ensuring child welfare; and
Take up the issues relating to chld protection or welfare with appropriate
authorities.
8 ) To study treaties and other international instruments and undertake periodical

I
review of existing law, policies, programmes and other activities on child
Special Rights Law rights and make recommendations for their effective implementation in the
best interest of children; and I
9) To perform such other functions as it may consider necessary for the
promotion of child rights and any other matter incidental to the above
functions.

[Link] Powers
I
The powers given to the Commission, according to the Act, include the following. 1
1) Summoning and enforcing the attendance of any person and examining them
on oath;
2) Discovery and production of any document;
3) Receiving evidence on affidavits;
4) Requisitioning of any public record or copy thereof from any court of office;
5) Issuing commissions for the examination of witnesses or documents;
6) Forwarding any case to a Magistrate having jurisdiction to try the same and
the Magistrate to whom any such case is forwarded shall proceed to hear
the complaint against the accused as if the case has been forwarded to him
under section 346 of the Code of Criminal Procedure, 1973 (2 of 1974);
7) The Commission may take any of the following steps upon the completion
of an inquiry;
Where the inquiry discloses the Commission of violation of child rights
of a serious nature or contravention of provisions or any law for the
time being in force, it may recommend to the concerned government or
authority the initiation of proceedings for prosecution or such other
action as the commission may deem fit against the concerned person or
persons;
Approach the Supreme Court or the High Court concerned for such
directions, orders or writs as that Court may deem necessary;
Recommend to the concerned Government or authority for the grant of
such interim relief to the victim or the members of his family as the
Commission may consider necessary.
[Link] Constitution of the Commission
The constitution of National and State commissions are given under section 3
and 17 of the Act respectively. The commission consists of:

i) A chairperson who is a person of eminence and has done outstanding work

for promoting the welfare of children;
ii) Six members, out of whom at least two shall be women, to be appointed by
the central or state government (as the case may be) from amongst persons
of eminence, ability, integrity, standing and experience in the field of:
Education,
 t

@ Juvenile justice or care of neglected or marginalized children or children

with disabilities,

I Elimination sf child labour or children in distress,

Child psychology or sociology, and

I @ Laws relating to children.

20.7.2 Children's Court
For the putpose of providing speedy trial of offences against or of violation of
child right, the State government may with the concurrence of the Chief Justice
of the High Court by notification under section 25 specify at least a Court to try
the said offences, provided that nothing in this section shall apply if:

I @ A Coort of session is already specified as a special Court, or

i I A special Court is already constituted for such offences under any other law
I for the time being in force.
For every Children's Court the State government shall, by notification, specify a
public prosecutor or appoint an advocate who has been in practice as an advocate
for not less than seven years, as a special public prosecutor for the purpose of
conducting cases in the court.

LET US SUM UP
In this Unit, we have discussed the measures taken to promote children's rights
and protection at international level with special reference to the Declaration of
the Rights of Child, 1959, the Convention on Rights of the Child, 1989, the
World Summit for Children, 1990, the UN Conference of Environment and
Development, 1992, the World Conference on Human Rights, 1993 and the
International Labour Organisation (ILO). We have presented the Indian
perspective of the measures taken for the protection and promotion child rights
and welfare by highlighting the constitutional provisions, evolution of child labour
policy and the laws enacted to prohibit and regulate child labour in India. We
have also touched upon the right of children to free and compulsory education,
I juvenile justice and the National and State Commissions available for the
protection of child rights.

20.9 ANSWERS TO 'CHECK YOUR PROGRESS'

QUESTIONS
1) National Sample Survey defines child labour or child-worker as "a person
below the age of 14 years who is wage-earner". A Bangalore based
organization described a child labour as "a person who has not completed
fifteen years of age and is working with or without wage on a part-time or
full-time basis."
2) The objectives of the CLPRA are as follows:
To ban the employment of children, i.e. those who have not completed
their fourteenth year, in specified occupations and processes;
To lay down procedures to decide modifications to the schedule of banned
occupations or processes; and
 Special Rights Law To regulate the conditions of work of children in efnployment where
they are not prohibited from working.
3) The CLPRA, 1986 has regulated the conditions of work by children by
specifying them. Hours and Periods of WorWWeeklyHolidays: The conditions
regarding hours and periods of work to be performed by a child have beeh
laid down in Section 7 of the Act, and are as follows.

i) No child shall be required to work in excess of hours which ate

prescribed for sucii establishments.

I ii) No period of work shall exceed three hours.

iii) No child shall work for more than three hours unless he has had an
interval of at least one hour.
iv)- Inclusive of period of rest, petiods of work shall hot spread over six
hours.

I V) No child shall work from 7 p.m. to 8 a.m.

I vi) There shall be no overtime for a child,
vii) No child shall be required or permitted to work in any establishment on
any day on which he has already been working in another establishment.

I viii) Every child shall be allowed a holiday of one whole day in each week.
4) Juvenile Justice System in India contemplates the legal response with respect
to two categories of children, namely, 'those who are in conflict with law'
(an individual under the age of 18 years who is accused of committing an
offence) and 'those fn rteed of care and protection ' (children from deprived
and marginalized sections of society as well as those with different needs
and vulnerabilities).
-
I
-. -- , .

20.10 REFERENCES
3 , I

Child Labour (Prohibitionand Regulation)Act, 1986. (Bare Act).

Justice Gulab Ctdpta. 2002. Human Rights and Fundamental Freedoms in India.
Bhopal: M. P. Human Rights Commission.

Kofi A. Annan. 2000. The State of the World'sChildren (See Foreword). UNICEF.
Myron Weiner. 1991. The Child and the State in India. Delhi: Oxford University
Press.

Swaminathan, M., and Rawal, V. 2000. Primary Education for All: India
Development Report. New Delhi: Oxford University Press.

The Commissionfor Protection of Child Right Act, 2005. (Bare Act).

The Juvenile Justice (Care and Protection of Children)Act, 2000. (Bare Act).

The Right of Children to Free and Compulsory Education Act, 2009. (Bare Act).

UNICEF. 1999. The State of the World's Children. New York.

 Cases Rights of Children

A. V Chandel v Delhi U~ziversity.1978. AIR Del308.

Bandela Aillaiah v State. 1995. Cri. LJ 1083.
Bandhua Mukti Morcha v Union qf India. 1984. AIR SC 802.
Bhola Bhagat v State of Bihal: 1997. (8) SCC 720.
Gaurav Jain v Union qf India. 1997. SCC (8) 114.
Hiralal Malick v State of Bihar. 1977. SCC (4) 44.
Laboztrers Working on Snlal Hydro Project v State of J & K. 1983. SCC (2) 181
i: M. C. Mehta v State of Tamil Nadu. [Link] SC 699.
Mohini Jairz v State ofKarnataka. 1992. AIR SC 1858.

1 . Munrzn v State oj'IJ. P. 1982. SCC (1) 546.

1 N. Ahogu~mrhanv S t o t ~ .1999. Cri LJ 632 (Mad).

t i c v Union of India. 1982. SCC (3) 235.
Pec)ple's IJnio~[Link] e r ~ ~ o c x ~Rights
Phul Singh v State of'Harya1za. 1979. SCC ( 4 )413.
Sheela Barse v Secr~trrn,Children S Aid Society. 1987. SCC (3) 50.
Sheela Rarse v IJnion oflrldia. 1986. SCC (3) 596.
Shcela Bnrse v Utzion of India. 1993. SCC (4) 204.

I
IJniversity of Delhi v Ram Nath. 1963. AIR SC 1873.
IJnni Krishnan J. P. and Others v State of Andhra Pradesh. [Link] SC 2 178.
Suggested Readings
Asha Bajpai. 2006. Child Right in India: Lnu: Policy and Pmctice. Delhi: Oxford
University Press, Delhi,
Chaudhary. R. N. 2010. L,aw Relating to Juvenile Justice in India. New Delhi:
Orient Publishing Company.
Helen Sekar. 2001. Ensuring their childhood. New Delhi: V. V. Giri National
Institute.
Mainta Rao. 2008. Law Relating to Women and Children. Lucknow: Eastern
Book Company.
i
Ved Kumari. 2003. "Appraisal of Juvenile Justice (Care and Protection of
Children) Act, 2000", Nalsar Law Review.
Ved Kumari. 20 10. The Jzii'enile Justice System in India: From Welfare to Right.
I Delhi: Oxfhrd University Press.
I
Vijay Siansaria, and Jose, P. I. 20 [Link] Justice System. New Delhi: Universal