Legislative framework governing child rights:
Child Labour (Prohibition and Regulation) Act, 2016 (amendment of the 1986 act)
As per the law, a child is defined as a person below 18 years of age. Children below 14 years of age are prohibited from working in all occupations, except: helping in non-hazardous family business, and child artists in entertainment industry and sports. Children between 14 to 18 years of age (also called adolescents) are prohibited from working in hazardous occupations. Violation of the law by an employer can invite imprisonment for a term of 6 months to 2 years.
A major criticism of this law is: The provision allowing child labour in “family or family enterprises” dilutes the ban on child labour, since most of the India’s child labour is family based – with children helping their families in fulfilling their debt obligations through bonded labour.
Apart from the Child Labour Prohibition Act 2016, several other labour laws too have provisions restricting employment of children. The Factories Act, 1948 prohibits employment of children below the age of 14 years in any factory. The Mines Act, 1952 prohibits the employment of children below the age of 18 years in a mine.
Juvenile Justice (Care and Protection of Children) Act, 2000 – amended in 2015
A juvenile is a child who has committed a crime. The Juvenile Justice Act is the primary legal framework for juvenile justice in India. It protects children in the judicial custody and prescribes rehabilitation or counselling for children involved in a crime. No child could be treated or tried as an adult as per the provisions of this law, however, after the 2015 amendment of the law, juveniles in the age group of 16 to 18 years involved in ‘heinous offences’ can be tried as adults.
Protection of Children from Sexual Offenses Act, 2012 (POCSO Act)
The POCSO Act was enacted to protect children from sexual offences, and to punish sexual offenders against children. The law defines a child as a person under the age of 18 years (biological age, not mental). It criminalises sexual intercourse with a person below 18 years of age, even if the intercourse is consensual. It also criminalises watching or keeping child porn in any form.
The POCSO (Amendment) Bill, 2019 seeks to further strengthen the existing law by increasing punishments and penalties against sexual offenders.
Major Criticisms: The POCSO Act is criticised for its low conviction rates. Most cases are not reported, or end up in acquittal as the complainant withdraws the punishment, due to social pressure from family and society. Also, the act does not function on a retrospective basis, i.e. cases of sexual offence prior to the year 2012 do not come under the purview of POCSO Act, remedy under such cases can be sought under other relevant provisions of the Indian Penal Code (IPC).
The Prohibition of Child Marriage Act, 2006
The Act prohibits child marriage and also provides for voidification of a marriage if either of the partners in the marriage was a child at the time of the marriage. Under this law, “child” means a person who, if a male, has not completed 21 years of age, and if a female, has not completed 18 years of age.
Right of Children to Free and Compulsory Education Act, 2009 – RTE
The Right to Education Act mandates the government to provide free and compulsory education to all children aged 6-14 years. The law brought into effect the fundamental right to education given by the 86th Constitution Amendment 2002. Here, free means that the government is obliged to provide free education, and compulsory connotes that the government should take steps to ensure or promote the attendance of children in the schools.
The No-detention policy: The section 16 of the RTE Act, 2009 stipulated that no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education, i.e. class 8th. However, in January 2019, this no-detention policy was scrapped by an amendment to the law passed by the parliament. The amendment to the Act permits schools to detain children in class 5 and class 8 if they fail an annual exam twice.
The 25% EWS Quota: Section 12(1)(c) of the RTE Act mandates all private schools (other than minority schools) to allocate 25% of their seats to students from economically weaker sections, SCs, STs, or those with physical disability. A reimbursement for such admissions is provided by the state governments, under rules framed by the state government, to the schools.
86th Constitution (Amendment) Act, 2002
The 86th Constitution (Amendment) Act, 2002 was a landmark that made education a fundamental right, though it could be implemented only after the Right to Education Act, 2009. The amendment brought the following changes to the Constitution of India:
- Article 21A added- Right to Education:
The 86th amendment added the landmark Article 21A to the Constitution, which states: “The State Shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”
- Article 45 (DPSP) amended:
The 86th amendment also amended one of the Directive Principles of State Policy (DPSP) to remove a redundancy. As the education for children of age 6 to 14 years was now a fundamental right, it was removed from the DPSPs by replacing the phrase “fourteen years” with “six years” in the Article 45: “The State shall endeavour to provide early childhood care and education for all children until they complete the age of
- Article 51A amended:
The Article 51A (Fundamental Duties) was amended to include one more fundamental duty: of parents to educate their children.
Organisations associated with child rights:
National Commission for Protection of Child Rights (NCPCR)
The NCPCR is a statutory body, established under the Commissions for Protection of Child Rights (CPCR) Act 2005, working under the administrative control of the Ministry of Women & Child Development (MWCD). Its mandate is to advise the government regarding policies, and to undertake research, to promote the general status of child rights in the country.
Further, the Right to Education Act 2009 has entrusted the NCPCR with the duty of reviewing implementation of the RTE Act and to inquire into complaints relating to children’s right to free and compulsory education. Also, the POCSO Act (Prevention of Children from Sexual Offences) 2012 has entrusted the NCPCR to monitor the implementation of the act and regularly advise the state and central governments for its effective implementation.
Powers: The NCPCR has powers of a civil court – to enquire into violation of child rights by any person, organisation, custodial home or rehabilitative institutions. It can recommend the government or any authority to provide relief to a victim, or to take action against an offender. Though the NCPCR does not have its own powers to punish a person, it can approach the Supreme Court or the High Court seeking necessary directions, orders or writs to protect and promote child rights.
The NCPCR has also launched an online complaint management system for child abuse: POCSO e-box, wherein anyone can submit a complaint and the NCPCR would take the required action.
UNICEF – United Nations Children’s Fund
UNICEF is a United Nations programme that provides humanitarian and developmental assistance to children and mothers in developing countries. It works with national and local governments across the world to promote child health, reduce infant and neonatal mortality rate, promote education, etc. to enable children to achieve their full potential.
The UNICEF was originally established in 1946 as the United Nations International Children’s Emergency Fund – to provide emergency food and healthcare to children and mothers in countries that had been devastated by World War II.
The ‘State of the World’s Children’ (SOWC) Report is a flagship publication of UNICEF, that examines a key issue affecting children each year. The last such report was published for the year 2017, with the theme “Children in a Digital World”, that examined different ways in which digital technology is affecting children’s lives.
Non-Government Organisations working for child rights:
- Save the Children
- Life on the Street Report analyses life of children in street situations. ‘Save the Children’ has also worked with the NCPCR in developing a Standard Operating Procedure (SOP) for children in street situations.
- Forgotten Voice Report talks about child friendly city – safe playing grounds, safe environment, participation in social life.
- Pratham is the most popular organisation that promotes children’s education.
- Its popular flagship report – ASER report -Annual Status of Education Report – shows the status of learning outcomes among school children. The report is prepared on the basis of household surveys conducted in sample representative groups in over 500 districts. ASER reports highlight the students’ inability to apply basic literacy and numerical skills to everyday tasks.
- More NGOs: Child Rights and You, Smile Foundation, etc.
International Conventions and initiatives related to child rights:
- International Labour Organisation (ILO) conventions:
- Minimum Age Convention
- The agreement sets minimum age for admission to employment at 15 years, and for hazardous work – 18 years.
- India is a party (signed + ratified) to this convention.
- Worst Forms of Child Labour Convention, 1999
- The agreement seeks to eliminate slavery, forced labour, human trafficking, etc. of children. It defines a child as a person under 18.
- India is a party to this convention.
- Minimum Age Convention
- UN Convention on the Rights of the Child
- With 140 signatories, the convention sets out the civil, political, economic, social, health, and cultural rights of children.
- India is a party to this convention.
International Programme on Elimination of Child Labour – IPEC
IPEC is a global programme launched by the International Labour Organisation (ILO) in 1991. India was the first country to join it in 1992.
The Indus Project was a joint initiative of the Ministry of Labour, Government of India and the Department of Labour, United States of America (USDOL) for identification and rehabilitation of child and adolescent workers working in ten hazardous sectors. The project was implemented in 21 districts across five states/UTs viz. Delhi, Maharashtra, Madhya Pradesh, Tamil Nadu, and Uttar Pradesh. The project was completed in 2009, by which time an estimated 1 lakh child and adolescent workers were withdrawn and rehabilitated.
The KidsRights Index is the annual global index which ranks how countries adhere to and are equipped to improve children’s rights. It is an initiative of the KidsRights Foundation, in cooperation with Erasmus University Rotterdam. It consists of five domains: Right to Life, Right to Health, Right to Education, Right to Protection, and Enabling Environment for Child Rights. The index ranks India at 117th position out of 181 countries for which data is available.
Hague Convention on the Civil Aspects of International Child Abduction
- The convention is an intergovernmental agreement that deals with issues of parental kidnapping and child (defined as under 16) abduction across international borders.
- It provides for bringing back children to the country of their habitual residence.
- India is not a signatory to this convention.
- (Dec 2017) – A Supreme Court judgement clarified that as India is not a signatory to the Hague Convention, courts in India have unlimited discretion to determine which parent should have the custody of the child, in the best interests of the child.
More related info:
- Global Slavery Index – published by Walk Free Foundation.
- Alliance 8.7 – A global initiative for a world without forced labour, modern slavery, human trafficking and child labour, as envisaged by the Sustainable Development Goal (SDG) 8.7.
- PENCIL Portal – Platform for Effective Enforcement for No Child Labour – is a mechanism to monitor and implement effectively the government’s efforts to eradicate child labour.
- Labour is a subject in the concurrent list.