Child Protection

 ‘Child Protection’ is about protecting children from or against any perceived or real danger or risk to their life, their personhood and childhood. It is about reducing their vulnerability to any kind of harm and protecting them in harmful situations

Child Protection - Legal Perspective

Children have the right to be protected from all exploitative and vulnerable situations that have been discussed.  But that is possible only if you make yourself aware of the real problems and risks that children face and of the remedies that are available in law and policy to change the situation in the best interest of children.

Sex – Selective abortion, Female foeticide and infanticide

The main law for prosecuting persons who are engaging in sex selective abortion is the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. The offences under the Act include the following.

• Conducting or associating or helping in the conduct of PND techniques/tests in an un-registered unit
• Sex selection on a woman or a man or both or on any tissue, embryo, conceptus fluid or gametes derived from either or both of them
• Taking the services of an un-qualified person, whether on honorary or payment basis.
• Conducting a PND test for any purpose other than those mentioned as permissible in the Act.
• Sale, distribution, supply, renting, allowance or authorization of use of any ultrasound machine or any other equipment capable of detecting sex of a foetus to non-registered units.
• Advertisement or communication in any from in print, electronic media or internet by units, medical professionals or companies on the availability of sex determination and sex selection in the form of services, medicines, or any kind of techniques, methods or ayurvedic medicines.

Apart from this law, the following sections from the Indian Penal Code, 1860 are also important.

• When death is caused by a person (Section 299 and Section 300).
• Voluntarily cause a pregnant woman to miscarry the unborn baby (Section 312).
• Act done with intent to prevent a child being born alive or to cause it to die after birth (Section 315).
• Causing death of an unborn child (Section 316).
• Exposing and abandoning of a child below 12 years (Section 317).
• Concealing the birth of a child by secretly disposing her/his body (Section 318).

The punishment for these offences extends from two years up to life imprisonment, or fine or both.

Child Marriage

• Prohibition of Child Marriage Act, 2006 envisages preventing child marriages with enhanced punishments of rigorous imprisonment for two years and/or fine of INR 1 lakh.
• It defines a child to mean a male below 21 years and female below 18 years. A minor is defined as a person who has not attained the age of majority as per the Majority Act.
• There are provisions for maintenance of the girl child. The husband is liable to pay the maintenance in case he is a major. In case the husband is a minor, his parents would be liable to pay the maintenance.
• The legal status of a child marriage is voidable at the option of the parties. However, if the consent is obtained by fraud, deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void.
• The Act also provides for the appointment of a Child Marriage Prohibition officer whose duties are to prevent child marriages and spread awareness regarding the same.

Child Labour

Children (Pledging of Labour) Act, 1933 declares any agreement by a parent or guardian to pledge the labour of a child below 15 years of age for payment or benefit other than reasonable wages, illegal and void. It also provides punishment for such parent or guardian as well as those who employ a child whose labour is pledged.

Article 24 enshrined in the Fundamental Rights and the Directive Principles of State Policy, lays down that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

The Child Labour (Prohibition & Regulation) Act (CLPR Act) 1986 (subsequently amended) prohibits employment of a child in 18 occupations and 65 processes and regulates the conditions of working of children in other occupations/ processes. As per this Act a child means any person who has not completed 14 years of age. The Act provides punishment for the offence of employing or permitting employment of any child in contravention of the provisions of this Act.

List of other labour laws that prohibit child labour and/or regulate working conditions for child labourers and can be used to book the employers is as follows:

• The Factories Act, 1948.
• The Plantation Labour Act, 1951.
• The Mines Act, 1952.
• The Merchant Shipping Act, 1958.
• The Apprentices Act, 1961.
• The Motor Transport Workers Act, 1961.
• The Beedi and Cigar Workers (Conditions of Employment) Act, 1966.
• The W.B. Shops & Establishment Act, 1963.

Child Trafficking

The legal framework available for dealing with a case against child trafficking is as follows:

The Indian Penal Code 1860 - The IPC punishes cheating, fraud, kidnapping, wrongful confinement, criminal intimidation, procuring minors, buying and selling of minors for immoral purposes.

Special and Local Laws that can be used to book particular forms and purposes of trafficking include:

• Andhra Pradesh Devadasi’s (Prohibition of Dedication) Act, 1988 or Karnataka Devadasi (Prohibition of Dedication) Act, 1982
• Bombay Prevention of Begging Act, 1959.
• Bonded Labour System (Abolition) Act, 1976.
• Child Labour Prohibition & Regulation Act, 1986.
• Child Marriage Restraint Act, 1929.
• Guardian ship and Wards Act, 1890.
• Hindu Adoption and Maintenance Act, 1956.
• Immoral Traffic (Prevention) Act, 1986.
• Information Technology Act, 2000.
• Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
• Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989.
• Transplantation of Human Organ Act, 1994.

Corporal Punishment

There is no Central legislation in India banning corporal punishment in schools. Different States, however, have enacted laws or made policies to ban it.

Street and Runaway Children

Juvenile Justice (Care and Protection) Act 2015 - The JJ Act, 2015 provides for strengthened provisions for both children in need of care and protection and children in conflict with law. Some of the key provisions include:

• change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”;
• inclusion of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children;
• special provisions for heinous offences committed by children above the age of sixteen year;
• separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children;
• inclusion of new offences committed against children

Child Begging

Kidnapping or maiming a minor for begging is punishable under Section 363A of IPC. As per Section 2(1) of the Bombay Prevention of Begging Act, 1959, “Begging” means-

• Soliciting or receiving alms, in a public place whether or not under any pretence such as singing, dancing, fortune telling, performing or offering any article for sale;
• entering on any private premises for the purpose of soliciting or receiving alms;
• exposing or exhibiting any sore, wound injury, deformity of diseases whether of a human being or animal, for extorting alms;
• allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms;
• having no visible means of subsistence and wandering about or remaining in any public place in such condition or manner, which makes it likely that the person doing so exist for soliciting or receiving alms;

Presently, there is no Scheme of the Central Government on Beggary nor there is a central law on the matter. The States are responsible for taking necessary preventive and rehabilitative steps. Around 22 States / Union Territories have enacted their own anti-beggary legislation or adopted legislation enacted by other States/UTs.

INTERNATIONAL CONVENTIONS AND DECLARATIONS

India is signatory to a number of international instruments and declarations pertaining to the rights of children to protection, security and dignity.

It acceded to the United Nations Convention on the Rights of the Child (UN CRC) in 1992, reaffirming its earlier acceptance of the 1959 UN Declaration on the Rights of the Child, and is fully committed to implementation of all provisions of the UN CRC.

India is also a signatory to the International Conventions on Civil and Political Rights, and on Economic, Social and Cultural Rights which apply to the human rights of children as much as adults.

Three important International Instruments for the protection of Child Rights that India is signatory to, are:

• Convention on the Rights of the Child (CRC) adopted by the UN General Assembly in 1989, The Convention prescribes standards to be adhered to by all State parties in securing the best interest of the child and outlines the fundamental rights of children,
• Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is also applicable to girls under 18 years of age.
• SAARC Convention on Prevention and Combating Trafficking in Women and Children for Prostitution emphasizes that the evil of trafficking in women and children for the purpose of prostitution is incompatible with the dignity and honour of human beings and is a violation of basic human rights of women and children.