1

CHAPTER-4

LEGISLATIVE AND JUDICIAL APPROACH ON CRIMES

AGAINST CHILDREN IN INDIA

Earlier, the law relating to children was insufficient and a need was felt with the
passage of time that uniform law should be provided by the Indian Legislature and
in this regard hon'ble Supreme Court of India in case titled as Sheela Barse &Ors
v. Union of India & Ors218 has given directions to the center that "Instead of each
State having its own Children's Act different in procedure and content from the
Children's Act in other States, the Central Government should initiate
Parliamentary Legislation on the subject, so that there is complete uniformity in
regard to the various provisions relating to children in the entire territory of the
country. The Children's Act which may be enacted by Parliament should contain
not only provisions for investigation and trial of offences against children below
the age of 16 years but should also contain mandatory provisions for ensuring
social, economic and psychological rehabilitation of the children who are either
accused of offences or are abandoned or destitute or lost. It was further directed
that so far as a child-accused of an offence punishable with imprisonment of not
more than 7 years is concerned, a period of 3 months from the date of filing of the
complaint or lodging of the First Information Report is the maximum time
permissible for investigation and a period of 6 months from the filing of the
charge sheet as a reasonable period within which the trial of the child must be
completed. If that is not done, the prosecution against the child would be liable to
be quashed. Every State Government shall give effect to this principle or norm in
so far as any future cases are concerned."

218 MANU SC 0115 1986

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The Indian government has taken a proactive approach to promoting and

protecting the rights of children. The Ministry of Women and Child Development
has been given primary responsibility for ensuring that children's rights and
development are protected (MWCD). It is the duty of the proximate community
like the parents, rural panchayats and urban local councils. However, the child
must not suffer in the absence of the parents. So, it becomes the duty of the
government at large to address the issue of care and protection. In this
responsibility the State and its institution are to function proactively at all levels of
governance and service. The constitution of India recognized and affirms this in
1950 by pledging to safeguard children against "exploitation, moral and material
abandonment" by ratifying the international instruments such as UNCRC. The
Indian government has taken a proactive attitude to promoting and protecting the
children's rights. The Ministry of Women and Child Development has been
charged with the main task of safeguarding the rights and development of children
(MWCD). It is the responsibility of the immediate community, which includes
219
parents, rural panchayats, and urban local councils. . The child, but from the
other hand, should not suffer in the absence of the parents. As a result, it becomes
the responsibility of the whole government to solve the problem of care and
protection. The State and its institutions are tasked with this obligation of acting
pro-actively at all levels of government and service In 1950, India's constitution
acknowledged and affirmed this by vowing to protect children from "exploitation,
moral and material abandonment" by ratification of international institutions such
as the UNCRC. 220

It was therefore founded in 2007 with a mandate of inquiry and investigation

under the Commissions for the Protection of Child Rights (CPCR) Act, 2005,
which mandated a national commission on child rights. The Ministry of Women

219 Saini Narender, September-October 2013 (child abuse and neglect in India: time to act, JMAJ,
VOLUME 56 No.5, Page 304-306.
https://www.med.or.jp/english/journal/pdf/2013_05/302_309.pdf
220 UN Convention on the rights of child (with optional protocol). http://www.unicef.org/crc.
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and Child Development is in charge of this statutory organization. The policy makers
must heed the quiet cries of the weakest among us: the children. It is the
responsibility of the government to provide appropriate funding for child
protection, as well as to guarantee that those monies are effectively employed.

New legislation and revisions to existing laws are being introduced to improve the legal
framework for children's rights.

4.1 LEGISLATIVE ENACTMENTS

There are several legislations that advocates the Constitutional mandate

for the development, welfare and protection of child rights. These are:

Figure 10: Legislative enactments dealing with crime against children in India
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The aims and objectives of some of these legislations relate to the protection and
welfare of the children, offences against children, as well as their basic human
rights.gd

4.1.1 Indian Penal Code, Act NO. 45 of 1860'

In this regard, IPC 1860 deals with ―foeticide‖221; ―infanticide‖222; ―abetment to

commit suicide of minor‖223; ―exposure and abandonment of child under 12 years
of age, by parent or guardian‖224; ―kidnapping for extortion‖225; ―kidnapping
from lawful guardianship‖226; ―kidnapping for ransom‖227; ―kidnapping for
begging‖228;
―kidnapping to compel marriage‖229; ―kidnapping for slavery‖230; ―kidnaping
for stealing from its person under ten years of age only‖ 231; ―procurement of
minor girls by inducement or by force to seduce or to have illicit intercourse‖232;
―selling of minors for prostitution‖233; ―buying of minors for prostitution‖234;
―rape‖235;
―rape on woman under 12 years of age‖236; ―gang rape‖237; ―gang rape on
woman under 16 years of age‖238; ―gang rape on woman under 12 years of
age‖239;
―unnatural sex‖240 ; ―sexual harassment‖241; ―assault or use of criminal force to
outrage the modesty of woman‖242; ―Assault or use of criminal force to woman
with intent to disrobe‖243; ―Voyeurism‖244; ―Stalking‖245 etc.

221 Section315 and 316

222 Section315
223 Section305
224 Section317
225 Section363 read with Section384
226 Section 361
227 Section 364 A
228 Section363A
229 Section366
230 Section367
231 Section369
232 Section366A
233 Section372
234 Section373
235 Section375
236 Section376 AB
237 Section376 D
238 Section376 DA
239 Section376 DB
240 Section 377
241 Section354 A
242 Section354
243 Section354B
244 Section 354C
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245 Section354D
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4.1.2 The Guardians And Wards Act, 1890, Act 8 of 1890.

Is an act that defines who is a guardian and who is an award to provide for various
provisions regarding appointment and declaration of guardians as well as their
rights, duties and liabilities. Guardianship laws are consolidated and amended by
this legislation. Under the Indian Majority Act, 1875, the term "minor" refers to a
person who has not yet reached the age of majority; a guardian is a person who
has custody of a minor's person or property; and a Ward is a minor for whom the
guardian has custody of both his or her person and property. The legislation also
provides different provisions with regard to the appointment and declarations of
Guardians, their rights, duties and liabilities.

4.1.3 The Code of Civil Procedure, 1908, ACT NO.5 OF 1908.

The purpose of this Act, notwithstanding its status as a procedural statute, is to safeguard
children. Protecting minors' rights and ensuring they are represented in legal
procedures is the goal of Order 32. Anything that would be detrimental to the
interests of a minor is prohibited by law, and a decree that is made without regard
to the best interests of a child or in the absence of a guardian is null and invalid.
Approximately 16 Rules have been included in the Code in this respect.

4.1.4 THE CODE OF CRIMINAL PROCEDURE,1973, Act No.2 of 1974

The Criminal Procedure Code also has the following relevant provisions for the children.

Jurisdiction in the case of juvenile246

Restoration of abducted females, including a female child below 18

years of age247

Maintenance of children 248

246 Section 27 Cr.p.c

247 Section 98 Cr.p.c
248 Section 125 Cr.p.c
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Release on probation of good conduct249

Reasons to be recorded in certain cases250

4.1.5 The Probation of Offenders Act, 1958, Act No.20 of 1958

Certain types of criminals are eligible for probation or a formal warning before being
released under the terms of this law. The purpose of this law is to prevent young
offenders from becoming criminals as a consequence of their contact with adult
felons while they are incarcerated. Offenders under the age of 21 are subject to a
variety of limitations while they are imprisoned. when any individual under the
age of 21 years old is found guilty, of having committed a crime punishable with
imprisonment but not for the jail term of life." If a person is convicted, "the court
shall not send him to jail." According to the law, probation officers may be
appointed and the court has the authority to release some convicts on probation for
good behaviour.

4.1.6 The Prohibition of Child Marriage Act, 2006, Act No.6 of 2007.

Has been in existence since 1929 to replace the old Child Marriage Restraint Act (Sharda
Act). Under the new legislation, the contractual party who was a minor at the time
of the marriage has the option of annulling it. In addition, the court will issue an
order instructing the parties, parents, and guardians to return any money, precious
decorations, or other gifts they got as part of the nullity decree. Children who are
the result of child marriages are entitled to the custody and support of their
parents. Each state also requires a Child Marriage Prohibition Office, whose
responsibilities Inter alia includes preventing child weddings, compiling evidence
for successful prosecution, creating public awareness, and sensitising the
community. The Factories Act,1948, Act No. 63 of 1948.

Gives a definition of a child as a person below the age of 15 years 251. But for the purpose
of the prohibition of child labour, it means 14 years only252. A young

249 Section 360 Cr.p.c

250 Section 361 Cr.p.c
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person, according to this Act means who is either a child or an adolescent 253. This Act
contains various essential provisions relating to children regarding health 254,
safety255, and welfare256, employment of young person257 etc. Children under 14
years old are not permitted to work in any industry, according to Section 67.
According to the Child Labour (Prohibition and Regulation Act), if a breach
occurs, a fine of Rs.10,000 to Rs.20,000/- or both may be levied under Section 15
of this Act, which prohibits and regulates child labour.

4.1.7 The Hindu Adoptions and Maintenance Act, 1956, ACT NO. 78 of 1956.

This Act provides amendment and codification of the law relating to adoption and
maintenance among Hindus. The sons and daughters are treated equally in the
matter of succession as well as equality in status. The same is also recognized in
the case of adoption. Now the girls are at parity with the boys and can be adopted
as per provisions of this Act. Further, women also get the right to adopt
themselves in their own right. Some of the necessary provisions with particular
reference to the protection and welfare of the children are.

Conditions of a valid adoption258 Persons

capable of giving in adoption259 Persons
taking in adoption260
Persons who may be adopted261

251 Section 2C
252 Section 67
253 Section 2D
254 Section11 to 20
255 Section21 to 41
256 Section42 to 50
257 Section67 to 77
258 Section11
259 Section9
260 Section7
261 Section10
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Proof of adoption262 Maintenance of

children263

4.1.8 The Immoral Traffic Prevention Act, 1956, Act No. 104 of 1956.

This law applies to both sexes who are exploited sexually for commercial objectives, as
well as to juveniles and children who are the victims of such crimes.

4.1.9 The Young Persons (Harmful Publications) Act,1956.

It is the goal of this legislation to stop the distribution of certain publications that are
detrimental to minors. If a young person is exposed to a "harmful publication," it
is defined as any publication that includes tales depicting crimes or acts of
violence or cruelty in such a manner that the publication as a whole is likely to
corrupt that person. This includes books, magazines, pamphlets, leaflets,
newspapers, and other publications of a similar nature. The statute prohibits the
sale or distribution of any material that is detrimental. 264

4.1.10 The Bonded Labour System(Abolition) Act, 1976, Act NO. 19 of 1976.

According to this law, "the worst form" of child labour is defined as any sort of labour in
which a kid is under the age of 18. If you or any member of your family or
anybody else who is reliant on you is obliged to do bonded labour as a condition
of your employment, you are subject to legal repercussions when you violate this
law. An offence of this kind is punished by up to three years in jail and a fine of
up to two thousand rupees.265.

262 Section20, 22(i), 23(1), 23(2)

263 Section25
264 Sec.3
265 Sec 18
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4.1.11 The Child Labour (Prohibition and Regulation) Act, 1986, Act No.61
of 1986.

A primary goal of this legislation was to eliminate the use of child labour. Children under
the age of 14 who are employed in dangerous jobs and procedures face fines and
penalties under the new legislation. This law gives the government the authority to
impose regulations on the employment of minors that ensure their health and
safety. This law also regulates working conditions, such as hours of labour,
weekly holidays, disputes over age, and the upkeep of registration, among other
things. As far as hotel and dhaba employees, those under the age of 14 are
included in the scope of the Act.

4.1.12 The Pre-Conception and Pre-Natal Diagnostic

Techniques (Regulation and Prevention of Misuse) Act,
2006, Act No.

This law governs the use of prenatal diagnostic techniques for the detection of genetic or
metabolic illnesses, chromosomal abnormalities, or particular congenital
malformations of sex-linked diseases. It is the goal of this law to stop prenatal sex
determination abuse that leads to female foeticide, as well as other related or
accidental uses of medical technology.

4.1.13 The Juvenile Justice (Care & Protection of Children) Act, 2015, Act
No. 2 of 2016

An offender is aware that his or her actions will lead to punishment because of the law
defines the offences it punishes. This is why the law defines the offences it
punishes. A minor who has reached the age of 16 has reached a point of maturity
when he or she can grasp the nature of the conduct and so establish mens-rea. A
number of scientists believe that the human brain continues to develop until the
age of 18. Fortunately, research suggests a significant amount of the human brain's
personality, talent, and intellectual capacity are fully matured by the age of five.
The brain also begins to notice antisocial behaviour and develops its cognitive
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abilities at this point. Because of this, the JJ Act 2015 is fully justified. New rules
for criminal prosecution of kids over sixteen were enacted by Parliament on
December 22, 2015, with the passage of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (2015 Act). When it was launched in 2012, the horrific
rape of a teenage student provided the context. Governing bodies have argued that
the legislation serves as a deterrence to youthful criminals. An 18-year-old
physiotherapy intern in Delhi was kidnapped and raped by six men, one of whom
was a juvenile, in December 2012, reigniting the debate over juvenile age
restrictions. No matter how heinous the offence, a juvenile may only get a term of
three years in a remand facility under present law. Indeterminate punishment and
restorative justice concepts would be the ideal way to reconcile the wellbeing of
juvenile offenders and the safety of the general public. Using a rehabilitative
approach, it would also achieve the deterrent objectives set out in the 2015 Act.
When it comes to developing a comprehensive plan for juvenile justice in India,
restorative justice ideas should be included as an essential component.

India has signed and ratified international treaties prohibiting the execution of
minors under the age of 18 in accordance with the UNCRC (1989), Beijing Rules
and Havana Rules, and the new JJ Act, 2015 provides the same protection under
clause (21) of Section 2 of the JJ Act, 2015 as the previous one did in the
Convention on the Rights of the Child. This means that the death sentence or life
in prison are not restricted by international treaties or national legislation. A
distinction is made between international law and treaty obligations in Article 51-
A of the Indian Constitution (the Constitution of India). Juvenile egregious crimes
committed by juveniles are punished in accordance with international practise if
the phrase "international law" is considered to mean customary international law,
which further explains why the JJ Act, 2015 follows international practise when it
comes to punishment. This conclusion is based on international customary law as
applied to United States, UK and Canadian positions on juveniles being
prosecuted under criminal law for serious and heinous offences. When deciding on
12

a punishment for a juvenile, it is important to take into consideration the juvenile's

socio-cultural and economic background. Punishment should be a means to help
the juvenile return to society. Under Section 19 of the revised JJ Act of 2015, a
child in need of rehabilitation services like as education, skill development and
alternative therapies including counselling and behaviour modification treatment
may get them while staying at a safe location for children.266

Section 15(1) of the JJ Act, 2015, outlines the process to be followed by the JJB
after the requirements of a "heinous offence" and age are satisfied. Treatment for
children in the criminal justice system may only begin upon the completion of a
JJB's "preliminary evaluation." In order to determine the following, the
"preliminary evaluation" is used.

1. Mental and physical capacity to perform the accused act;

2. The child's comprehension of the repercussions of the offence;
3. The conditions under which the youngster is said to have committed the
crime.

Child psychologists, psycho-social workers, and other specialists may be called

upon by the Board because the JJB is unable to determine the child's level of
incompetence to commit the offence.

Previously, an act from the year 2000 had been repealed. When it comes to
making decisions that are in the best interest of children, this comprehensive law
takes a child-friendly approach when deciding on instances that include those who
have broken the law or those who require care and protection. Additionally, the
Act allows for children's long-term rehabilitation via a variety of institutions
created under the Act. This statute confirms the authority of international law,
which is cited as

266 Gupta, K. (2021, August 27). Treatment of children as adults under India's juvenile justice
(Care and Protection of Children) act, 2015 . iPleaders. Retrieved March 29, 2022, from
https://blog.ipleaders.in/treatment-of-children-as-adults-under-indias-juvenile-justice-care-
and-protection-of-children-act-2015/
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The United Nations Convention on the Rights of the Child of 1989

Beijing Rules of the United Nations on the administration of juvenile

justice, adopted in 1985, are the international norm.

Protecting children who have been imprisoned or detained by the United

Nations

A number of other international and national instruments and policies are also in
agreement with this legislation. For both boys and girls, this law established a
minimum age of 18 at which they should be recognized as minors. This Act also
makes a clear distinction between a juvenile criminal and a neglected kid.
Institutional and non-institutional methods for children's care and safety are
included, with a focus on rehabilitation and social integration.

4.1.14 The Commission for Protection of Child Rights Act (CPCR), 2005

Every state and territory is required to have its own state commission for the protection of
child rights, as well as the national commission. In accordance with this
legislation, a children's court will be established in order to expedite trials for
offences against children and violations of child rights, as well as for any related
or incidental cases. Commissions at national and state levels are tasked with a
variety of responsibilities.

analysis and assessment of legal protections for children's rights given

by any legislation recommends measures for their effective
implementation,
enquire into violation of child rights

spread awareness and sensitization of the community about child rights

The Supreme Court has in a recent case of 2020 titled as:

National Commission for Protection of Child Rights & Ors. v. Dr. Rajesh
Kumar & Ors.267 it was necessary to pass a legislation protecting children's
rights. In

267 MANU SC 0027 2020

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addition, the Commissions for the Protection of Child Rights Act of 2005 was
passed by parliament as "the CPCR Act." Children's rights are protected by the
NCPCR/National Commission established under the Child Protection and Child
Welfare Act of 1993 (CPCR Act). In accordance with clause 3 and Section 17, the
state commission Both of these commissions are expected to work together as a
team. These two organizations resemble brothers and sisters in their essence.

There are a variety of other general statutes, labour laws, and personal laws that
contain practical measures for the care, protection, and rehabilitation of children in
addition to these specific enactments. Not only that, but the concerns of the
children on their rights, health, education, family life, exploitation, and protection,
among other things, are very well reflected in these legal papers as well.

16. The Juvenile Justice (Care and Protection Amendment) Act, 2021:

The NCPCR performed a study of 7000 CCI (child care institutions) or children's
homes in 2018-19 and found that 1.5 percent of them did not adhere to the norms
and regulations of the JJ Act and that 29 percent of them had serious problems in
their management. No child care facility in this nation met all of the requirements
of the JJ Act, according to the NCPCR. It was discovered that CCIs receiving
huge amounts of financing, including from outside sources, were housing children
in portacabins in circumstances that were both unclean and terrible. CCIs may be
government-operated, government-aided, privately-run, or run using a
combination of public, private, or international financial sources. The CWC (child
welfare committee) and the state child protection units had very little supervision
or surveillance over these facilities. Even if the children's home applied for a
license and did not hear back from the government within three months, it would
be "deemed registered" for a period of six months even though the government
had not granted authorization. Now that the new amendment has been passed by
the DM, this is no longer an option and no new children's homes may be created
without his approval. For the first time, the DM will conduct background checks
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on CWC members, who are mainly social welfare advocates since there is now no
framework for such a check. The DMs are also required to do criminal
background checks to verify that no members have been accused of child abuse or
sexual assault. Additionally, the CWCs are required to provide frequent reports to
the DMs on their activity in respective districts.

As a consequence of the Women and Child Development Ministry's attempts to

bring about reforms, 500 illicit child welfare facilities that were not registered
under the JJ Act have now been shut down. In addition, the district judges are now
responsible for ensuring that the CCI's in their districts are adhering to the
established rules and procedures.

NATIONAL POLICIES

In accordance with the Indian constitution's basic rights and directive principles,
the state government has the authority to establish specific measures for children.
Principles that direct the state's actions in ensuring that children are protected from
harm and given a chance to grow up free and with dignity are enshrined in its
constitution. When it comes to protecting children against exploitation and moral
desertion, the state has an obligation. India has adopted several policies and
strategies aimed at the well-being of children in order to meet the aforementioned
goals. These are

A. National Policy for Children, 1974268

B. National Policy for Children 2013269
C. National Policy on Education 1968, 1986, 1992, 2018 and 2021
D. National Policy on Child Labour 1987
E. National Nutrition Policy 1993
F. National Health Policy 2002270

268 https://www.haqcrc.org/pdf/national-policy-for-children-1974/.
269 https://wcd.nic.in/policie,Last Updated: 16 Dec 2021.
270 https://www.nhp.gov.in/sites/default/files/pdf/NationaL_Health_Pollicy.pdf
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4.1.14.1 National Policy for Children, 1974:

This is the first policy statement that acknowledges children as a critical national
resource. It relates to the children's needs and rights. The policy's objectives are to
guarantee that the Constitution's provisions for children and the United Nations
Declarations on the Rights of the Child are implemented appropriately. These
objectives should be fairly attained via prudent and efficient use of available
national resources. Indian governments approve this resolution as the country's
national policy for children.

The State's policy shall be to offer assistance to children prior to and during their growth
phase in order to ensure their full physical, mental, and social development. The
State shall aggressively expand the breadth of such programs so that all children in
the country experience optimal conditions for a balanced growth within a
reasonable time."

This policy also aims at establishing national children board to provide focus on the rising
needs of children relating to health, nutrition, education and other welfare services
and to ensure at different levels All critical services must be planned, reviewed,
and coordinated on a constant basis. The State shall also have similar types of
boards to address the policy measures at regional levels.

This policy emphasizes the role of voluntary organizations and states that voluntary
organizations working in the arena of child welfare will continue to have the
ability to grow independently or with the aid of the state in the areas of education,
health, recreation, and social welfare.

These aims requires that the State will afford needed legislative and administrative
support. To accomplish the goals of expanding the program and improving the
quality of services, facilities for research and training of staff will be built.
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4.1.14.2 National Policy for Children 2013:

As a result of the April 26, 2013, policy, children's rights to life, health and
nutrition have been recognised as well as their ability to participate in all aspects
of their development and education. In it, it was said that "the Indian constitution
provides basic rights to all children in the nation and authorises the state to create
particular arrangements for children." To ensure the rights of children, a multi-
faceted strategy is needed since their demands are so diverse and intertwined
across all sectors. Cooperative effort was urged to reach the end goal, because of
this, the state is dedicated to promoting children's rights, such as the right to grow
up in an environment that is fair, dignified, and safe; to guarantee that all children
have the same opportunities; to ensure that no custom, tradition, religion, or
cultural practice violates or restricts their growth and development; as a result,
children's rights are promoted.

As stated in the policy's preamble, this policy takes into account the fact that
people are different.

The term "kid" refers to anybody under the age of 18 years

old. In and of itself, childhood is a priceless experience.

This diversity necessitates an array of responses to the different needs of

children, especially in light the multi-dimensional vulnerabilities that
children confront on a regular basis in other contexts.

A holistic approach to children's well-being and safety that is multi-

sectoral, integrated, and inclusive must be implemented over the long
term.

The location of birth, class, language, handicap, or any other situation

should not be a basis for discrimination against children. The same goes
for religion, race, caste, or sexual orientation.
18

Children's best interests have priority over all other factors in all
decisions and acts, regardless of whether they are made by legislative
bodies or courts of law or by administrative authorities of any kind.

Education and living in dignity are inseparable rights for every kid.

4.1.14.3 National Policy on Education 1968, 1986, 1992, 2018 and 2020:

Education has always been accorded as honored place in Indian society. In ancient
times Takshila, Nalanda and Ujjain were main centers for learning and various
Universities were on these places. In those times Gurukul system of education
were prevalent.

A. National Policy on Education, 1968:

A key worry of the government and state of India after independence was the need
for a fundamental reformation of education in order for the country's economic
and cultural growth. A plan to increase educational options. The fact that a
concerted effort is being made to improve the quality of education at every level.
There should be a greater focus on educational advancement as an essential part of
growth or security. In 1968, the government of India issued a National Policy on
Education to encourage educational growth in line with the recommendations of
the Kothari Commission, which had been reviewing educational reconstruction
issues for decades.

India's post-independence educational history was distinguished by this approach,

as education was considered a national issue.

Compulsory education for all children was in target and that the quality training
and capability of the teachers was focused upon.

4.1.14.4 The National Policy on Education, 1986:

A new education policy was put in place by the Indian government. Primary
education was given top priority as part of this programme, which reorganised and
 19

redefined educational priorities in an extensive way. For human growth, universal

primary education, and women's advancement, Early childhood care and education
(ECCE)have been expressly acknowledged as critical inputs. Early childhood
education is a priority for this administration's initiatives. With the 1976
modifications to the Indian Constitution, the federal government was given the
authority to administer education.

Even though the previous educational policies had been revised as recently as
1986, the 1992 revisions reaffirmed the goal of education as a means to preserve
the constitutionally guaranteed Indian principles of secularism, socialism,
democracy, and professional ethics. As part of the 10+2+3 framework, the policy
stated that it will make attempts to build a single school system. A specific
emphasis was placed on programmes for underrepresented groups, such as
women, members of the SC/ST, people with disabilities, and the like. In light of
the importance of ECCE to a child's overall development, policymakers have
made place for integrated child service programmes. Three key pledges are made
by the policy in relation to basic education programmes:

Universal access and enrolment

Universal retention of children up to age of

14 Improvement in quality education.

It is envisioned that tackling the dropout issue and ensuring student retention
would be given top emphasis under this programme.

B. The New Education Policy 2020

The new education policy has been formulated after 34 years. It was launched on
29.07.2020 by Mr. Ramesh Pokhriyal Nishank, First Education Minister. The
chairman of NEP 2020 is Dr. K.Kasturi Ranjan (ISRO Chief) who formulated this
policy. Recommendations made by this committee was to first of all change the
name of human resource development Ministry to Education Ministry and Mr.
20

Ramesh Pokhriyal Nishank is the first education minister. GDP for education is
also increased from 3% to 6%. The new education policy aims at ―Education for
all‖ moto with quality education by the year 2030.

Now pattern of new Education Policy for 2020 has adopted the model of 5+3+3+4
in place of earlier 10+2 model of 1986 education policy.

Five years foundation (3 to 8 years of age) -LKG +UKG + class 1 to

class 2
Three years Primary Course or Preparatory (8 to 11 years)- class 3 to
5 Three years Middle Course (11 to 14 years)- class 6 to 8
Four Years Secondary school (14 to 18 years)- class 9 to 12

4.1.14.5 National Policy on Child Labour, 1987

―On 12th August 1987, Legal action, welfare, and development initiatives for the
benefit of child labourers were included in the government's policy on child
labour, according to a statement. In places where there is a significant
concentration of child labour engaged in pay or quasi-wage work, as well as for
the rehabilitation of children, this policy also developed a project-based action
plan. Consequently, it is widely acknowledged that the National policy on child
labour, adopted in 1987, is a key document in ensuring the rights and interests of
children in the workforce. Three areas of well-being are considered.

Legislative action plan- Children under the age of 14 are not allowed to work
in 18 vocations or 65 procedures under the terms of the 1986 Child Labor
Prohibition and Regulation Act. Child labour laws must be vigorously
enforced by the federal and state governments on a regular basis under this
strategy, including the Child Labor Prohibition and Regulation Act 1986, the
Factory Act 1948, the Mines Act 1952, and the Plantation Act 1951. The
Union Ministry has formed a child labour technical advisory group to provide
advice to the central government on the inclusion of occupations and
procedures to
 21

the Act 1986 schedule. During inspections and raids, it was decided that if
child labourers were found during these events, they would be saved and
rehabilitated by means of repatriation, with the ultimate goal of getting them
into the official school system. The rescued youngsters are also given pre-
vocational training.

As part of this strategy, implementing organisations are encouraged by the

administration to concentrate on and embrace general development initiatives
that assist children, wherever feasible. Integrated child development,
education, and health and nutrition are all part of these initiatives.

Implementing programmes to improve working children's conditions in high-

child labour regions is based on a strategic action plan.

4.1.14.6 National Nutrition Policy 1993:

India's government created a national nutritional strategy in 1993, overseen by the

department of women and children's development. It was NNP's goal to eradicate
malnutrition and provide everyone with adequate nourishment.

Objective:

1. In order to lower the incidence of severe 8.7 percent and moderate 43.8
percent malnutrition by half by the year 200 AD. ICDS should be
available to all teenage girls from low-income households by the year
2000AD in every CD block in the nation, as well as half of the
metropolitan slums.

2. So that disadvantaged young children aged 0 to 6 may be included in the

nutrition intervention provided by ICDS

3. It is necessary to make iodized salt available across the endemic region.

4. By the year 2000 AD, all cases of nutritional blindness will be

eliminated.
22

5. In order to deal with this issue, the NNP used both direct and indirect
techniques (short- and long-term objectives).

4.1.14.7 National Nutrition Policy 2020:

Women and Child Development Ministry figures show that more than 9.2 million
children aged six months to six years would be severely acute malnutrition (SAM)'
by November 2020.

Pandemic of COVID-19 may worsen food insecurity and health problems in low- income
communities, according to this study's findings. As a result of Covid-19's adverse
effects on food insecurity and malnutrition, millions of people have been forced
into poverty, and the earnings of many more have been reduced.

Anganwadi centres, mid-day meals, immunizations, and micronutrient supplementation

were all impacted by the pandemic-induced lockdowns, which aggravated
malnutrition.271

Children suffering from SAM are nine times more likely to die in case of
diseases due to their weakened immune system.
Nutritional oedema: Abnormal fluid retention in the tissues (oedema)
resulting especially from lack of protein in states of starvation or
malnutrition.
Number of SAM Children (National scenario): An estimated 9,27,606
‗severely acute malnourished‘ children from six months to six years were identified
across the country till November 2020.
States with SAM children
The most in Uttar Pradesh (3,98,359) followed by Bihar (2,79,427).

Uttar Pradesh and Bihar are also home to the highest number of children in
the country.

271 https://www.drishtiias.com/daily-updates/daily-news-analysis/severe-acute-malnutrition-in-
india
 23

Maharashtra (70,665) > Gujarat (45,749) > Chhattisgarh (37,249) > Odisha
(15,595) > Tamil Nadu (12,489) > Jharkhand (12,059) > Andhra Pradesh
(11,201) > Telangana (9,045) > Assam (7,218) > Karnataka (6,899) > Kerala
(6,188) > Rajasthan (5,732).
States with No Severely Malnourished Children: Ladakh, Lakshadweep,
Nagaland, Manipur and Madhya Pradesh reported no severely malnourished
children.

4.1.14.8 Government Schemes:

Poshan Abhiyaan-The government of India has launched the National Nutrition

Mission (NNM) or POSHAN Abhiyaan to ensure a Malnutrition Free
India by 2022.

 Anemia Mukta Bharat- launched in 2018, the mission aims at accelerating

the annual rate of decline of anemia from one to three percentage
points.

 Mid-Day Meal Scheme- It aims to improve nutritional levels among

school children which also has a direct and positive impact on
enrolment, retention and attendance in schools.‖

 The National Food Security Act 2013: By making food a legal right, it
tries to protect the most vulnerable populations from hunger and
malnutrition.

 Pradhan Mantri Matru Vandana Yojana: The bank accounts of pregnant

women are credited with Rs.6,000 so that they might have easier access
to delivery services.

 Integrated Child Development Services Scheme: There has been a

government programme since 1975 that strives to provide children under
the age of six with food and education as well as basic healthcare services
like as immunizations and health checks.
24

 Sukanya Samriddhi Yojana: The Govt. Of India has provided this scheme
for empowerment of the girl child. It is hoped that this plan would
motivate parents to save for their female child's future education and
marriage expenditures. This scheme offers a higher rate of interest than
other saving plans like PPF. No taxes are levied at the time of withdrawal
of amount.

Note: All kinds of hunger and malnutrition must be eliminated by the year 2030,
ensuring that everyone, especially children, has access to enough and
nutritious food throughout the year.

4.1.14.9 National Health Policy 2020-21:

According to 2010 world bank report that Indian children are suffering from
malnutritional and when these children grow up, they earn 20% less than those
who have had healthy childhood. A new programme called "Poshan 2.0" has been
launched by the Ministry of Women and Child Development, and it has been
suggested that all districts with an "aspirational" population build a "Poshan-
Vatika" (Nutrition Garden). Supplementary nutrition programmes and Poshan-
Abhiyaan were combined in the 2021-22 budget to create Poshan 2.0. Integrated
child development services are included under this umbrella (Aanganwadi
services, Poshan-Abhiyaan, scheme for adolescent girls, national creche scheme).
As part of a broader effort to improve the country's overall health and well-being,
as well as its resistance to sickness and hunger, the initiative was put into motion.

4.2 JUDICIAL APPROACH TOWARDS THE PROTECTION OF

CHILDREN

Legislation alone cannot do justice in a society. An impartial and independent judicial

system has always played the role of faithful guardian of justice. All the laws
provided by the constitution and enacted by the legislature are acquire their true
meaning by judicial interpretation. Indian judiciary is playing a role of
 25

crusader and is instrumental in social changes regarding crimes against children. It

has delivered several judgements and has felt that unless and until the society
realizes the effect and consequences of this evil, neither law nor judiciary can do
any miracle.

4.2.1 Responses on Child Prostitution and CSA By The Courts

In case titled as “Vishal Jeet v. Union of India”272 The Supreme Court's

interpretation of Article 23 was limited to the subject of child prostitution in a
public interest lawsuit brought by a lawyer 273, the court observed that "The
expression ‗trafficking in human beings is an extensive-expression. That includes
the prohibition of trafficking in women for immoral and other purposes. It is
deplorable to observe that many poor children and girls in their primordial youth
are taken to the ‗Flesh Market‘ and forcibly put into the flesh trade, which is the
utter violation of morality and decency dignity of humanity. Hon'ble Justice S.R
Pandayan has established the following measures to eradicate the evil of
prostitution;

1. All the State govt and govt of UT‘s must order the competent laws
enforcement authorities to take appropriate and rapid measures by the law
enforced to eradicate child prostitution without giving way to any complaint of
negligence and indifference.

2. The govt of the States and UT‘s must establish independent advisory
committees within their respective areas, comprised of the Secretary of the
Department of Social Welfare, the Secretary of the Department of Law,
sociologist, criminologist, members of women organizations, and members of
Indian Council for Child Welfare and Indian Council for Social Welfare as well as

272 Vishal Jeet Vs Union of India 1990(3) SCC 318

273 Article 23(1). Traffic in human being and beggar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in
accordance with law.
(2) Nothing in this Article shall prevent the State from imposing compulsory service for
public purposes, and in imposing such service, the State shall not make any discrimination on
ground only of religion, race, caste or class or any of them.
26

members of various voluntary social organizations and associations, whose main

objective is to provide suggestions on:

a. Measures to be taken to eradicate child prostitution, and

b. The social welfare program will be implemented for the care,

protection, treatment, development and rehabilitation of young victims
or children rescued from brothel houses and clutches of prostitution.

3. All govt of States and Union Territories should take adequate measures
and provide rehabilitation homes assisted by social workers, psychiatrists and
qualified doctors.

4. A committee should be set up to develop social assistance programmed

to be implemented at the national level for the assistance, protection, rehabilitation
of young people {boys and girls) and for suggesting modifying existing laws or
enacting any new law to prevent sexual exploitation of children.

5. A mechanism should be designed to ensure the correct implementation of

the respective commission's suggestions.

6. The advisory committee should also to observe the devadasi system and
provide valuable advice and suggestion on what the Government could do best in
this regard."

After the case of Vishal Jeet 274, One of the Supreme Court cases in which it dealt with the
issue of child prostitution with extraordinary care was Gaurav Jain v. the Union
of India. After hearing arguments in an appeals court case involving the status of
children of prostitution victims, Ramaswamy J. interpreted sections of the
Immoral Traffic (Prevention) 1956 and offered advice on how to proceed without
making a judgement on the legitimacy of other offences. Bench review and recall
of the full judgement was conducted by three judges. in Gaurav Jain v. Union of

274 supra
 27

India275 . Referring to the situation of prostitute, court noted "prostitutes has always been
an object and has never been seen as a complete human being with the dignity of
the person as if she has no personal needs or aspirations, neither individual or
collective. Their problems are exacerbated by the coercion and torture imposed on
them, when they tried to resist prostitution they succumbed to violent treatment,
and as a result many are settle with prostitution. Within this trap she faces the
problem of having and raising children. Their children are equally subjected to
discrimination and social isolation. They are victims of circumstances and
therefore should be treated as human beings like others to include them in the
main stream of the social order without any associated buyers."

The Indian judiciary has particularly on the issue of CSA, pronounced a number of
decisions in favor of the victim. Some of the important cases are given below.

Ms. Eera through Dr Manjula v. State 276 it was observed by the court that ―The law on
the protection of children against sexual offences Act (POCSO) 2012 was
promulgated to protect children from sexual violence, harassment and exploitation
and to ensure the best interest of the child, recognizing the need for the child rights
to privacy. The policy of the law is aimed at ensuring that the child of tender age
is not abused and that their childhood is protected from exploitation and that they
are endowed with the structure to develop in a healthy way and in conditions of
human dignity. Furthermore, the child‘s interest both as a victim and as a witness,
must be protected. The emphasis is on providing a child-friendly procedure. The
dignity of the child has placed immense emphasis on the legislative frame work.
Protection and interest occupy the central place in the text of the law POCSO. Sec
2(1)(d) defines a child as a person under the age of eighteen.‖

The question posed in the present cases whether is a person with mental problem also
falls within the scope of the child, since his mental faculty was similar to that of
under eighteen.

275 supra
276 AIR 2017 SC 3457
28

Ghanshyam Misra v. State277 The factual matrix of this case is that a girl of ten years was
sexually abused by her school teacher, an adult of 39 years. He induced her to
come inside the school room where rape was committed upon her. This act of the
accused ruined the future of the girl. Taking into account seriousness and gravity
of offence, the appellate court enhanced the sentence from three to seven years of
rigorous imprisonment and also awarded compensation to the victim.

Controversial decision by the high court of judicature at Bombay (Nagpur

bench) is set aside by hon'ble Supreme Court of India

Satish Ragde v. State of Maharashtra,278 The accused abducted a 12-year-old girl and
took her to his house under false pretenses. He touched the girl's breast and even
tried to remove her clothing from around her neck. In that split second, the little
girl's mother rushed on the scene and saved her child's life. So, the woman's
mother took her to the police station to file an official complaint with them.

The accused was sentenced to three years in prison for sexually assaulting a minor by the
Trial Court for breaching Sections 354, 363 and 342 of the Indian Penal Code and
Section 8 of the POCSO Act. Feeling aggrieved, he sought dismissal of all charges
levelled against him under Section 8 of the POCSO Act in an appeal filed with the
High Court of Bombay in Nagpur. The High Court overturned the Sessions
Judge's decision and found the accused not guilty of sexual assault in violation of
Section 8 of the POCSO Act, but sustained his conviction in violation of Section
354 of the Indian Penal Code (IPC). As a result of this, the Court found there was
no evidence that the accused removed the girl child's clothes prior to assaulting
her, and as a result, there was no skin-to-skin sexual intent without penetration.
The POCSO Act does not define grabbing a child's breast as sexual assault if there
is no skin-to-to-skin contact (the special law meant to deal with crimes against
children). The Indian Penal Code, Section 354, defines outraging the modesty of a
woman as an offence.

277 AIR 1957 ORISSA 78

278 Criminal Appeal No. 161 of 2020 Bom HC
 29

The decision was heavily criticized by a wide range of groups who argued that it would
create a "dangerous precedent.". When the Hon'ble Supreme Court of India, in the
case titled Attorney General of India v. Satish and Another 279, overturned the
original ruling. It was held by hon'ble Supreme Court that "restricting 'touch' or
'physical contact' under Section 7 of the POCSO is absurd and will destroy the
intent of the Act, which is enacted to protect the children from sexual offences.
Restricting the meaning of expression 'touch' and 'physical contact' under Section
7 of POCSO to ' skin to skin' contact would not only be narrow and pedantic
interpretation but will also lead to absurd interpretation of the provision. If such an
interpretation would be adopted, a person who uses gloves or any other like
material while physical groping will not get conviction of or the offense. The
construction of rule should give effect to rule rather than destroying it. The
intention of legislature cannot be given effect to unless a wider interpretation is
given do. The purpose of the law cannot be to allow the offender to escape the
mashes of the law. The act of touching sexual part of the body of the child, if done
with sexual intent would amount to sexual assault within the meaning of Section 7
of the POCSO Act. Thus, the main ingredient of the offence is sexual intent and
not skin to skin contact."280. Thus, we can rightly say that Supreme Court is the
true guardian of children‘s rights and safety.

281
"Sonu Kushwaha v. State of U.P." in the year 2016 the accused forced a ten- year
boy to perform oral sexual His guilt was proven beyond doubt and hence
convicted and sentenced under IPC (sec.377 and sec.506) and POCSO act (sec.3a
of the act which defines "penetrative sexual assault. And was punished under sec.
6 of the act - punishment for aggravated penetrative sexual assault which also
includes when the child was less than 12 year). In appeal the verdict of Allahabad

279 Criminal appeal no. 1410 of 2021

280 Rao, S. (2021, December 6). Restricting 'touch' or 'physical contact' only to 'skin to skin'
contact absurd : Supreme Court reverses Bombay HC's Pocso Judgment. Live Law. Retrieved
March 29, 2022, from https://www.livelaw.in/top-stories/pocso-skin-to-skin-judgment-
supreme-court-bombay-high-court-attorney-general-185784
281 Criminal Appeal No.5415 of 2018, Allahabad
30

high court endorsed that a penetrative sexual assault on a boy of ten years of age did not
amount to an aggravated form of the crime 282. The court however agreed that as
per the POCSO Act 2012 it was a 'penetrative sexual assault' an offence that
incurs lesser punishment of 7 years283, but still is not covered in the definition of
'aggravated penetrative sexual assault' an offence that incurs strict punishment that
is imprisonment of 10 years. The ruling of the high court ignored sub-section 'm'
of Section5 under aggravated penetrative sexual assault. The verdict appears to be
per-incurium and disregarded law and facts. The verdict of the court is a fit case
for review, as it seems to be based on an error of law.

While it is plausible to have different judgements on a case, sometimes the explanation

seems to defy all logic and point towards a bigger problem in the judiciary. If any
judgement fails peer review by fellow members of the judiciary or probe into the
facts as to why the judge behaved in a particular manner should be ordered to
unearth probable nexus between the defendant (usually powerful politicians or
rich).

4.2.2 Judiciary VIS-À-VIS Bonded Labour System

India has learned that court rulings may have a significant effect on national
policymaking and execution. Particularly in developing nations, child labour is a
common occurrence. These youngsters are among the most disadvantaged
members of society, compelled to join the labour field at a young age in order to
make meagre wages or to help support their families by compromising their own
personal development in the process. That the court must play a significant and
essential part in eradicating injustice and exploitation is true, since it has both a
social and economic destination, as well as an innovative role to play. Since the

282 The Hindu. (2021, November 25). Pocso shocker: The Hindu editorial on Allahabad High
Court verdict on Child sexual assault. The Hindu. Retrieved March 29, 2022, from
https://www.thehindu.com/opinion/editorial/pocso-shocker-the-hindu-editorial-on-allahabad-
high-court-verdict-on-child-sexual-assault/article37671776.ece
283 Section. 4, Protection of Children from Sexual Offences Act, 2012.
 31

judiciary is tasked with enforcing citizens' fundamental rights, judges must be well-versed
in both political and legal views. In this regard, constitutional principles forged by
the Supreme Court in the cases of People’s Union for Democratic Rights v.
UOI284, ―Bandhua Mukti Morcha v. UOI & Ors.”285 and Neerja Chaudhary v.
State of MP286 judgements are the outcome of the exercise of permissible judicial
legislation to further the substantive social policies embodied in bonded labour
system (abolition) Act of 1976. The court in the above cases virtually acted as
bonded labour law maker.

4.2.3 Child Labour is Forced Labour

In “People’s Union for Democratic Rights v. UOI”287 (The Asiad‘s Workers case)288. In
a Writ Petition filed under the PIL procedure. According to this document,
employees involved in different Asian Games-related projects must be checked to
make sure that all applicable labour laws are being followed. The petitioner, a non-
profit organization whose mission is to defend democratic institutions, brought the
issue to the attention of the court. Received a letter containing the petition from
one of Supreme Court justices, Justice P.N. Bhagwati Thereafter, a notification
was issued to Delhi's government as well as to the Union of India. The 1938
Employment of Children Act and Article 24 of the Constitution were both claimed
to have been violated. Asian Games-related building projects hired a considerable
number of under-14-year-old workers. Workers, including children, were also
alleged to have violated Article 23 by not receiving the minimum wage mandated
by the Minimum Wages Act, 1948.

284 AIR 1982 SC 1473

285 AIR 1984 SC 802
286 AIR 1984 SC 1099.
287 Supra
288 supra
32

As regard the violation of provisions of Article 24 289 The court ruled that since it
incorporates a basic right that is clearly enforceable against everyone, no one may
hire a kid under the age of 14 in a dangerous occupation, and because construction
work is a hazardous occupation, no child under the age of 14 can be worked there.
Thus, the contractor is under a constitutional obligation and prohibited to play
with the future of children. Although the employers know law on child labour they
don‘t care. So, government should strictly implement child labour laws.

In “Bandhua Mukti Morcha v. Union of India” 290 It was said that bonded labour
occurred at Faridabad stone quarries where most employees were forced to
relocate from neighbouring states and become bound labourers. It was a living hell
for these employees, who were subjected to deplorable circumstances. According
to the complaint, many labour regulations intended to protect employees were
ignored, including those included in the Bonder Labour System (Abolition) Act
1976, in clear contravention of Article 23 of the Constitution. The court's primary
interest in this case was to gain quick relief for bonded labour and to ensure that
they were adequately rehabilitated.

“Labourers working on Salal Hydroelectric Project v. State of Jammu and Kashmir” 291
It was a PIL in 1982 claiming that countless traveler laborers from different states,
including Orissa, were working in troublesome conditions at the Salal Hydro
Project, were kept the security from getting different work laws, and were exposed
to abuse by the worker for hire to whom the Central Government endowed
different bits of the work. The court taught the Jammu and Kashmir Labor
Commissioner to visit the Salal Hydroelectric Project site and learn

Do you have the names and addresses of all the workers who have been hired as
"bonded labour" for this project?

289 INDIA CONST. art.24: Prohibition of employment of children below 14 years of age in factories,
mines or engaged in any other hazardous employment.
290 Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802.
291 AIR 1984 SC 432
 33

There may be migrant labourers from other states in the area. What are

the living circumstances of the workers?

As to whether or not they are adhering to the laws put in place to protect their interests an
interim and final report was filed by Jammu's labour commissioner after he was
ordered to go to the site by the court to inspect the work in progress.

Although it was mentioned in the final report that some children were working on the
project site, the reason supplied is that these adolescents join male family
members on their own and insist on employment. When recalling its earlier ruling
in the Asiad Case, which stated that building is a dangerous occupation and that
under Article 24 of the Constitution, no child under the age of 14 may be
employed, the court acknowledged the difficulty of the issue and that parents
frequently seek employment for their children solely for financial reasons. Child
labour is widely cited as a factor for parents not enrolling their children in school,
leading to a high rate of school dropouts. This is an economic issue, and it cannot
be resolved via law alone. As long as poverty exists in this country, eradicating
child labour will be difficult. However, an endeavor must be made to decrease
child labour instances. The court acknowledged that it is impossible to completely
prohibit child labour in light of current socioeconomic realities. Any such decision
may be unpopular with broad segments of the population on social or economic
grounds. That is why Article 24 prohibits child labour in factories, mines, and
other dangerous occupations. Owing to Article 24's limitation on the employment
of minors in construction, it is clear that no child younger than 14 is permitted to
work in the field due to its hazardous nature. Workmen's children should be
enrolled in a local school, and the government should provide not just school
34

tuition but also free school supplies, books, and other amenities like
transportation, the Supreme Court said.292

The constitutional imperative that kids and youth must be safeguarded from
exploitation and moral and monetary abandonment was reaffirmed by supreme
court rulings in M.C. Mehta's PILs.

The case “M.C. Mehta v. State of Tamil Nadu”,293 involved the subject of child
labour at the match factory in Shivakasi, in the Tamil Nadu district of Kamraj.
There is a long heritage of matchbox and firework manufacturing in Shivakasi,
which employs a considerable number of youngsters as well as adults in the many
factories. There are several dangers associated with the manufacturing of matches
and firecrackers. Despite the best practices and extra precautions, deadly incidents
occur on a regular basis. There are also substantial health risks associated with
working in these industries, as various toxic compounds were used. As a result,
the court found that the employment of minors in match factories violated Article
39(f) since it was closely linked to the manufacturing process up to and including
the final fabrication of match sticks or firecrackers.

There a constitutional principle that prohibits children from working in factories

throughout their formative years, according to the Supreme Court. Article 45 of
the Constitution mandates that kids receive free and obligatory education up to the
age of 14. It is a little more complicated than that in practice, though. Children are
forced to look for work due to a lack of resources.

Children may thus be used in the packing process, but the packaging should be
done in a location apart from the site of manufacturing to minimize exposure to
accidents. Children's tender hands are more suited to sorting out and processing

292 Geeta Menon, Kids Kidnapped to Work in Hazardous Employment 167 (Concept Publishing
Co. Jaipur 3rd edn.,2003).
293 AIR 1990 SC 263
 35

the goods for packaging, thus the court set a minimum salary for children of Rs. 6,000/-
per month, which is the same as the wage for an adult factory worker. In addition,
the court ruled that specific facilities for enhancing the lives of youngsters were
required. This would need an educational institution, a recreational area, and a
place to socialize. The school day should be rearranged so that work is not
impacted, and general education as well as job-oriented education should be
accessible. Both adults and children shall be covered by a Rs.50,000/- insurance
policy in the event of an accident, the court said. As a condition of employment,
the employer should be responsible for the cost of the group insurance policy's
premium.

“M.C. Mehta v. State of Tamil Nadu” 294, is a Public Interest Litigation by the petitioner
demanding compensation for the legal representatives of 30 individuals who
perished in a cracker plant fire at Shiva Kashi. However, except for the packaging
unit, the court has not allowed youngsters to be worked in the manufacturing area
at large. There was no record of the deceased's age, so no one knew whether there
were any children among the 30 people who had died. In addition to requiring the
State of Tamil Nadu to pay the insured sum of Rs 50,000/- towards compensation,
the court ordered the employers to keep records indicating the age of their
employees, so that it would be easier to identify the victims and to inquire whether
the workplace was within the permissible area in the case of a child being involved
in an accident.

As a result, it is argued, the court should have put an immediate halt to child labour given
the illegal nature of the practice in general and the cracker factory in particular.
Instead of requiring the company to have a list of workers with their ages listed on
it. Even at firms that make illegal fireworks, minors may be employed, according
to a ruling by a California court. When a kid dies, the

294 AIR 1992 SC 456

36

compensation paid to the parents is of little use to them. The wellbeing of the
child, not the financial plight of the parents, should be the main concern of the
court.

In “Rajangam, Secretary, District Bidi Workers Union v. State of Tamil

Nadu”295, There was a petition to the Supreme Court claiming that the owners of
Bidi factories in the state of Tamil Nadu were manipulating the records of their
employees, failing to pay them the appropriate compensation for the work they
had done, failing to implement the provisions of labour laws, and exploiting child
labour. The supreme court ordered an investigation into the charges based on a
report filed by the society for community organisation Trust, which had been
selected by the court to look into the claims. As a result, state governments should
either ban child labour immediately or phase it out over the course of three years
at the latest. In accordance with the Child Labor (Prohibition and Regulation) Act,
1986, all of its restrictions must be properly followed. But the court did not adopt
a harsh position to entirely prohibit youngsters from working in Beedi
manufacturing company since the whole process is home-based and cannot be
controlled. Would have been nice if the court had been proactive and not left it up
to the state administration.

The observation made by the Supreme Court in another judgment in “M.C. Mehta
v. State of Tamil Nadu”296, It is considered a milestone decision. During the trial,
the court was able to contemplate the issue of child labour, not only in the fire
cracker or matchbox factories, but across the nation. It was judged appropriate by
the court to assess the matter in a larger scope and perspective, treating it as a
national issue that did not concern only to any one part of the country, by looking
beyond the city of Shiva Kashi where the petition was filed. Considering that the

295 (1992) 1 SCC 221

296 AIR 1997 SC 2218.
 37

judicial branch is one of the three primary state institutions, the court believed it
owed it to the most vulnerable members of society to do its part when asked to
rule on an issue of this magnitude and importance, namely the elimination of child
labour. India's international obligations and local laws were used by the court in
making its judgement.

4.2.4 Prohibition of Traffic in Human Beings

In Bachpan Bachao Andolan v. UOI297 The petitioner sought the SC under Article
32 following a series of encounters with several youngsters who had been
trafficked to participate in circuses. Children's fundamental rights were violated by
the acts performed in these Circuses. These youngsters were smuggled into Nepal
from neighboring nations and from backward parts of Indian states. Following
extensive study and investigation, it was discovered that organized crimes
including child trafficking from Nepal are common. Typically, these children are
traded to circus owners by agents or relatives; rarely, desperate parents are
persuaded by promises of high incomes and extravagant lifestyles. Then, in these
locations, these youngsters are routinely assaulted physically, mentally, and
sexually. There is a breach of the J.J. Act and all international human rights and
child rights treaties and conventions. Employing children in circuses violates a
number of basic and statutory rights, including the right to education, the right to
freedom of speech, the competence to enter into a contract for circus employment,
current labour legislation and the contract's legality, and child-related legislative
restrictions. labour. The apex Court considered various aspects of and relating to
the problem of child trafficking. The debate was held for numerous reasons that
contribute to the problem of child trafficking like inadequacy of existing
legislation, India's obligations under international regional instruments, as well as
its national strategy and policies. It was also discussed by the supreme court how

297 AIR 1990 SC 292

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we can combat human trafficking and whether the existing child protection
mechanism is sufficient to deal with the problem. The court gave crucial
directions to the central Government regarding children working in the Circuses.

In accordance with Article 21 A of the Constitution, issue appropriate

notices prohibiting the employment of children in circuses.

Conduct raids in such place to free the children working there and to
check the infringement of FR‘s of the children. The liberated children
be cared for until they turn 18.

Encourage their parents to take them back home after proper

verification.

Frames scheme of rehabilitation of rescued children from Circuses 298.

4.3 CHALLENGES AHEAD

Infant mortality, child marriage, maternal death, child widows, and child
trafficking even beyond national borders are plaguing India along with
prostitution, child abuse, and child labour, as it does in many impoverished
countries. Numerous hurdles must be overcome.

As a consequence, a child-centered culture must be formed. The legal system must

interpret the law in accordance with the CRC's rights and processes. A young
person will be able to seek justice through the justice system because of the
children centred culture. All children's laws should be evaluated according to the
CRC and its standards, and there should be communication between the CRC and
its laws. The Indian justice system has a long way to go in protecting the rights of
children and bringing justice to them. Child justice cannot be achieved through
legal reform. The most effective approach to avoid knowledge of this sort of abuse
and how to deal with it among various providers - physicians, teachers, attorneys,

298 Prayag Mehta, Mortgaged Children 146 (Allied Publishers, New Delhi,4th Edn., 2009)
 39

judges, police, volunteers, parents, trade unions, and social workers - so that they
can be much more successful. limiting the possibility of misuse, if feasible, by
reacting. As a result, these problems should be resolved as soon as possible.
Above all, the concept of universal law for formulating policies, establishing
frameworks and procedures, and taking actions that are always inevitably in the
best interests of the child must be followed. Let the child thrive like a flower
through the nourishment of the rights, the fruits of freedom, and the attention and
care of both parents and the state under the direction of society. The fight for the
rights of children will be a long and difficult one.