Reflection of constitutional provisions concerning the rights of children

Introduction

The notion of human rights has emerged as a pressing global issue that has gained much advocacy for its implementation on a global level. The concept of human rights has branched out over the course of centuries to attempt to root out innumerable social evils like black slavery, inequality of genders and class, immoral trafficking of people, exploitation of children etc. If human rights are talked about in the context of Abraham Maslow’s hierarchy of needs, then one understands the basics of human rights that are derived by any organisation in this regard. The primary block of the pyramid of Maslow’s hierarchy of needs talks about a person’s physiological needs, after such a fulfilment the blocks that succeed state the need for security, belongingness, esteem and finally, self-actualisation. These blocks in the pyramid can be said to be the foundations of a human being living an ideal life.

In India’s context, human rights remains a field that needs a lot of work to be done, as it is the hub of human trafficking, disregard for basic human dignity among lower caste by the upper caste, exploitation of women and children are prevalent societal issues.

The rights of the minorities remain widely ignored, including those of children. The proper care and protection of a child may be disregarded due to other issues emerging from human trafficking for various illegal purposes, employing child labour, etc. These factors not only take away the child’s ability to grow in all aspects but also deprives them of their rights.

Why rights for children

Child rights have emerged as a pressing issue, globally in the past few decades. There is more advocacy for child rights now than ever. People, in general, are more aware of their rights, but when it comes to a child, he/she is heedless due to lack of agencies in place to spread such awareness.

Rights of the children remain vastly neglected despite there being numerous provisions for the same in the Indian constitution and governmental programmes for the betterment of children at a national level.

What are child rights?

To understand the concept of child rights better, one must familiarise themselves with who one thinks ‘child’ is and what do ‘rights’ mean first. As defined in the constitution of India, a child is someone who is below the age of 18 years, (in other acts related to children the age varies from 14, 16, 18). In simple words, rights are one’s liberty. The citizen is someone who is a right holder, and the state plays the role of a duty bearer. Children are essentially holders of their inherent rights.

They are entitled to support, care and protection by the duty bearers, i.e. the State and the government is obligated to liquidate the rights of children.

Various attempts have been made to define the rights of children in the laws passed for the protection and care for children. “According to the United Nations Convention on the Rights of the Children – that India ratified in 1992 – all children are born with fundamental rights:

1. Right to Survival – to life, health, nutrition, name, nationality
2. Right to Development – to education, care, leisure, recreation, cultural activities
3. Right to Protection – from exploitation, abuse, neglect
4. Right to Participation – to expression, information, thought, religion” (1)

The purpose of this writing is to concisely look at some of the areas related to child exploitation, the steps taken by the government to advance the impoverished conditions of the children in need of care and protection and the effectiveness of such provisions. The article focuses on three fields that are: child labour, right to education and child trafficking, as these areas majorly concern the child exploitation and infringement of their rights.

Child labour

Child labour is usually a result of poverty, unawareness of rights, social backwardness and illiteracy. A failure of well-structured education system i.e. cruel treatment by a teacher towards a student, groupism among higher class/caste students, unequal treatment towards students of different communities etc. results in the child being an outcast, there are also other social discriminations based on financial power that may hinder a child from attending school or be treated unequally that may result in the child dropping out of school. Other aspects where a child is forced to work could be under the need for financial gains due to being poverty-stricken, being a poor and orphan child under a relative’s guardianship could attract harsh treatment and pressure to work, or the parents may end up selling their child due to extreme poverty to gain money

It is estimated that 1.5 crore children are involved in child labour in the country currently. Major causes of child labour are poverty, economic backwardness and illiteracy, of which 80 percent of child labour is concentrated in rural areas.

According to the United Nations, any work carried out to detriment and engage children who are in the age of 5 to 14 years is a violation of international law and national legislation. If this work deprives them of schooling or puts them under the dual burden of schooling and work is child labour.

In India, the states with most cases of child labour freed:

1) West Bengal

2) Madhya Pradesh

3) Uttar Pradesh

Major laws

Child labour (prohibition and regulation) act 1986

Amended in 2016 with child labour (prohibition and regulation) amendment act 2016

It states the prohibition on employment or working of children below the age of fourteen. The 2016th amendment adds the adolescents to the act and prohibits their employment in hazardous environments and occupations while the non-hazardous occupation was allowed.

Several children continue to work as waste collection, and this is very hazardous to the children’s health.

PENCIL Platform for effective enforcement FOR NO child labour

Was set up as a portal where complaints for child labour could be registered, under the Ministry of Labour and Employment’s National Child Labour Project (NCLP). “Complaints about child labour filed on PENCiL are forwarded to the district nodal officer for further action. Each district nominates a district nodal officer (DNO) who checks if the complaint is genuine. If yes, rescue measures are undertaken in coordination with police. All this happens within 48 hours of getting a complaint.” (2)

Role of NCPCR

National Commission for protection of child’s rights is an Indian governmental commission, established by an act of parliament, the commission for protection of child Rights Act in December 2005. It was tasked with examining the mental and physical torture against children.

In the context of the Indian Constitution’s article 24 has stated the prohibition of employment of children in factories.

Right to education

Education plays a key role in any nation’s development. Education not only opens an entryway fro an individual but also contributes to the collective good of the society.

India’s education mechanism affects its developing state and hinders it from significant growth. With a massive population of 135 crores, securing education to each individual is a task in itself for the government and policymakers alike. Education for many is hindered by problems of poverty, inaccessibility, caste discrimination, lack of infrastructure, shortage of qualified staff etc. The Government of India has time and again tried to implement different policies and passed various laws to ensure education to all children but due to improper follow-up and implementation on the ground level, education for all remains to be a big question mark.

Major laws

Right to education act

The Right to Education (RTE) Act was enacted in 2009, and this Act made education for every child between 6 and 14 years a fundamental right. It has also set the primary rules that must be followed by every elementary school all over the country. Its purpose was to at least equip each child with elementary education free of cost. The RTE act was designed to focus on the making of a curriculum that ensures that the child attains all-round development by building their knowledge, working on their talent, and bringing out their potential. The Right to Education Act has also made it mandatory to reserve 25 per cent in private schools for children from economically weaker families.

Sarva Sikhsha Abhiyan (SSA) is an Indian Government scheme that furthers the purpose of RTE and is focused on the “universalisation of primary education “in a time bound manner”. The 86th amendment to the Constitution of India made education free and compulsory to children between the ages of 6 to 14 and also a fundamental right (Article- 21A). It aims to follow the rules and regulation mentioned in the RTE act and ensure its speedy implementation.” (3)

Mid-day Meal Scheme is a school meal programme of the Government of India designed to improve the nutritional standing of school-age children throughout the country. Under the programme free lunches are to be supplied on working days for children in primary and upper primary classes in government, government- aided, local body. The purpose of the scheme was to attract more number of students and encourage them to attend school daily by providing a meal during school lunch. The motive was to solve the issue of hunger emerging from extreme poverty and help educate students on a wider range.

Child Trafficking

Child trafficking remains to be one of the most horrendous social evils that exist today. Children are trafficked for their organs, forced labour, sold into slavery etc.

Children are vulnerable targets for manipulation. Extreme poverty, conflict, lack of access to education and job opportunities, victims to domestic violence, weak law enforcement, a lack of good quality public education and harmful practices like child marriage are all factors that cater to trafficking of children. In most of these scenarios child trafficking becomes undisturbed, a poverty-stricken may be forced to give up their child, sell them to gain money or child may run away from home due to inhuman treatment, lack of education may close doors to a lot of job opportunities thus forcing the child to work to provide for the family. The child is mentally incapable of thinking of consequences of his/her actions and ends up falling prey to some trafficker’s false promises for a better future. Other ways children are trafficked are by combined efforts of some illegal organisations, corruption on the part of persons with authority etc. The children once trafficked have a bleak future ahead of them with almost no possibility of achieving anything significant as an individual. They may be sold in the black market for their organs, or exploited as sexual or domestic slaves, and maybe shipped to another country altogether.

Major laws

Trafficking in Human Beings or Persons is prohibited under the Constitution of India under Article 23(1).

Some other laws in the form of acts have been passed by the government to curb the trafficking of persons and protect and prevent children from exploitation of all kinds.

• “The Immoral Traffic (Prevention) Act, 1956 (ITPA) this act is the initial legislation for prevention of trafficking for commercial sexual exploitation caused by trafficking of persons. Immoral Traffic Prevention Act, 1986 PITA only discusses trafficking related to prostitution and not concerning other purposes of trafficking such as domestic work, child labour, organ harvesting, etc.
• The act defines a child as any person who has completed eighteen years of age. The first section of the act has provisions that outline the illegality of prostitution and the punishment for owning a brothel or a similar establishment.
• If a person is found with a child it is assumed that he has detained that child there for the purpose of sexual intercourse and hence shall be punishable to seven years in prison up to life imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh rupees.
• Any person committing prostitution in public with a child shall be punishable to seven year in prison up to life imprisonment, or a term which may extend to ten years and also a maximum fine of one lakh rupees.
• Any child found in a brothel or being abused for the purpose of prostitution can be placed in an institution for their safety by a magistrate.” (4)
• Criminal Law (amendment) Act 2013: has come into force wherein “Section 370 of the Indian Penal Code has been substituted with Section 370 and 370A IPC which provide for comprehensive measures to counter the menace of human trafficking including trafficking of children for exploitation in any form including physical exploitation or any form of sexual exploitation, slavery, servitude, or the forced removal of organs.” (5)
• Protection of Children from Sexual offences (POCSO) Act, 2012, “which has come into effect from 14th November, 2012 is a special law to protect children from sexual abuse and exploitation. It provides precise definitions for different forms of sexual abuse, including penetrative and non-penetrative sexual assault, sexual harassment etc.” (6)

Criticism

All the schemes mentioned, laws put in place and acts passed for purposes of promoting or demoting as the situation demands, have all been fairly well drafted and it seems stupendous on paper,however the ground realities beg to differ. The rising population of India directly conveys the increasing number of mouths to be fed, educated, provided social security, and also there is an elevated demand for jobs among other things.

For all the laws or schemes in place, there is no organised system of proper and regular follow-ups, which is one of the biggest drawbacks when the question of implementations of the same is raised. The data related to implementation of the laws regarding the child can be easily manipulated. The actual numbers of child labourers in a region may differ vastly from the recorded number or the data collected in reference with mid day meal (number of children fed, consumption of food etc) can be hugely deceiving mostly due to corruption in various levels of the system responsible for such discharge of duties. Policies don’t reach where they are most required and there is a lack of funds and manipulation even in the numbers of the funds provided.

There are various aspects like, increasing literacy levels, promoting small businesses as a way to boost the economy, improving rehabilitation facilities, making better policies and implementing them, that India needs to propel in the near future to not only secure a better future for its young generation but also its citizens in totality.

References

(1) https://www.cry.org/child-rights

(2)https://economictimes.indiatimes.com/news/politics-and-nation/pencil-power-keeping-victims-of-child-labour-in-schools-through-attendance-stipend/articleshow/70926584.cms?from=mdr

(3) http://ncasindia.org/index.php/resources/rte-infobank/

(4)https://vikaspedia.in/social-welfare/social-awareness/human-trafficking-1/human-trafficking

(5) https://www.mea.gov.in/human-trafficking.htm

(6) https://www.mea.gov.in/human-trafficking.htm

An effort by Ananya Mishra

Law student
Amity Law School