Child laws in India an overview.
- Law Mates
- Nov 10, 2020
- 6 min read
“Children establish one’s name” that is they are the precious assets of a country, and without them, there will be no world. Neglect, abuse, and abandonment of children compel the society to make laws for the protection of children even in old civilizations. It seemed that “The code of Hammurabi” of the Babylonian period which lasted about 1500 years gave priority to the protection of children. According to Hammurabi Code, a person’s life is deemed to be less worthy without a few children. It shows the special status of children and the need for the exceptional care they deserve in society.
Introduction
The first statute related to children came into existence during the time of British India, The Children (PLEDGING OF LABOUR) ACT, 1933, which expediently prohibit agreements in written or oral, expressed or implied to pledge the labor and employment of children. The law not only forbids child labor but also make it void, and guaranty penalty for the parents or guardian whoever pledges the work of a child. This act survived virtually unchanged until the International Labor conference was held in 1937 which adopted a unique exclusive article on India. In 1938 the law set a minimum age of employment in working docks as 14 years and specific industries at 15 years of old.
In 1950, Article 24 of the Indian constitution stated that no child below the age of 14 should be employed in any factories or mines by the employers or any other hazardous employment, and article 24 considered as a fundamental right guaranteed in part 3 of the constitution. The directives of state policy in part 4 direct that all states shall endeavor to provide free and compulsory education to children until they attained the age of 14 within ten years.
Many years after ten years had elapsed, in J.R Unnikrishnan v. State of Andhra Pradesh (1993) 1 SCC 645, the Supreme court had declared free education to all children below the age of 14 to be a fundamental right. In 2002, the Constitution amended to reflect the judicial declaration, reads in Article 21 Right to Education as a fundamental right, compulsory and free education to all children shall be provided by state according to the law determined until the age of 16. Inclusion of article 51 K in the amendment of Constitution, make it the duty of parent or guardian to provide opportunities to education until the age of 14 of their ward.
Definition of Child labor from 1986 and forward.
Though the Constitution of India adopts the Right to an education free and compulsory for all children below the age of 16, the law does not adopt uniformity in defining the child. So in 1979 Gurupadaswami committee was set up to determine the definition of child labor. The committee reported to the central govt., that meagerness in penalties prescribed in law increased the child labor status than it intended. In 1986 Sanat Mehta committee reiterated the recommendations of the Gurupadaswami committee to define the child. But different act follows different age concerning its provisions.
The govt enacted the CLPRA 1986, (the Child Labour and prohibition Act) of India contain only fewer prosecutions and punishments and did not act as a deterrent law. The ultimate aim of CLPRA 1986 was prescribing uniform age for child labor. Still, it failed in its object, and later the first periodic report of the committee on the rights of the child lead India to the assurance of Prime Minister that India would abolish child labor within five years. For that, intensive measures implemented by the central govt., in states and regions where employment of child is maximum. From 1997 onwards, abuse of child workers in domestic help was reported by the National Human Rights Commission to govt. National Human Rights Commission urged the central govt, to amend its rule regarding child labour which first ordered the govt employees to stop hiring children under 14 years of age for domestic help. Gradually this ban applied to all over India and domestic child workers or servants added to the prohibited list of occupations in CLPRA 1986. Another area of child labour was hotels, restaurants, and dhabas also were banned since 2006.
The act intended to prohibit child labour entirely and implement the law to ban child labour where it has not been banned. Indian penal code and criminal procedure code also contains a provision for abuse of a child and human trafficking. According to the Indian Penal Code, selling or hiring of any girl under the age of 18 years for prostitution or any other immoral purposes is also an offense.
The above-said acts are mainly concentrating only on the child labour aspect, and other areas related to child abuse were not concerned. Some of the offenses against children are dealing with provisions of other laws available in India.
Provisions for protection of a child under the Information Technology act 2008.
Section: 67 B
Punishment for publishing or transmitting of material depicting children in the sexually explicit act, etc. in electronic form.
ITAA defined the child as ‘’any person who has not completed the age of 18.’’
Any person who entices the children for and on a sexually explicated act or in a manner that may offend a reasonable adult on the computer resources or abuse children on the internet is punishable with imprisonment for a term that may extend to five years and fine up to 10 Lakhs rupees.
Child marriage act 1930 aimed to prevent the evil of child marriage, it does not make marriage automatically void, and it provides only a meagre penalty or injunction for those who solemnize the child marriage. Under this act, the minor girl in a wedding is taken back to parental custody until she attains her age once it is solemnized. This parental custody of the minor girl after the wedding pointed out that the act of 1930 was not adequate to produce the desired result.
In 2006 parliament enacted the Prohibition of child marriage act made child marriage null and void. The act mainly aims to protect the girl child (minor) from mental and physical abuse. In case any children were born under the child marriage, there are provisions under the same act to take into custody of those children and provide maintenance to them. The verdict, of Gujarat High court while hearing the case of a 17-year-old girl who married a man 12 years elder than she upheld that the Prohibition of Child marriage under 2006 act prevailed over the personal laws of religion.
Juvenile justice Act 1986, was enacted by the parliament for the protection and rehabilitation of abandoned juveniles. Those times both abandoned juveniles and offended juveniles were lodged together in the observation home until the inquiry was completed. Juvenile justice care and protection of children act to deal with three types of children’s problem (a) Juvenile in conflict with the law (b) child in need of care and protection (c) rehabilitation and social reintegration of child. The crucial aim of this act is to put a stop to the publication of the name, address, etc. Of a juvenile to any magazine or newspaper based on disqualification of the status of the child. Lack of supervision of authorities was a major drawback of this act.
Juvenile Justice Act 2015, replaced the juvenile justice care and protection act 2000 and made that the court can try young offenders as adults if they involve in heinous crimes. And separate lodging of juvenile offenders and others were also adequately solved in the 2015 act. Though this is in contravention with the child rights convention, the pressure of circumstances to take measures needs to answer.
The sexual offenses related to children are deal with Posco Act 2012, on the principles based on
· Right to life and survive: a traumatized child needs every step should take to enable the child to enjoy a healthy environment.
· The best interest of the child: best interest means not only protecting the child from victimization and hardship. At the same time, involve in the justice process as a victim or witness but also enhance the child’s capacity to contribute to the justice system.
· The right to be treated with dignity and compassion: Child’s private life needs to be protected by limited interference and information shared on a need to know basis.
· Right to be protected from discrimination: The age of the child should not consider as a barrier to a child’s right to participate in the justice process whereas the child should treat as a capable witness, according to the level of maturity.
· Right to be informed: The concerned authority adequately informed about the status of the case, the decision by the court, etc. to the child.
Conclusion:
Over a generation, child laws enacted the rights and obligations of children unsystematically. But still, need to review how can focus on their overall developments through the rules.
Author:
Treasa Deepa
Reference:
THE CHILDREN (PLEDGING OF LABOUR) ACT, 1933. 1ACT NO. II OF 1933 [24th February 1933]
https://indianexpress.com/article/cities/ahmedabad/prohibition-of-child-marriage-act-to-prevail-over-personal-laws-hc/
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