Rights under India Law for Protection of Children
-- Shiv Shankar Banerjee, Advocate, Supreme Court of India --

In the 19th century, the utilitarian economist J.S. Mill assigned that the State has a much wider function than the duty of simply providing freedom. The United Nations believed that (in a prospering country) the State should shoulder the responsibility of the holistic growth of its population, especially of the children. However, there is no such agreement among social scientists based on distinguishing features, social justice, and welfare state. Justice is itself a social phenomenon, so, it always has a direct relation between men, relationship within a group, be it small or large. There is nothing as such called individual justice, in sense of something that concerns one individual isolated from everyone else, but when people talk about social justice, it sounds as if it is one kind of justice, to be contrasted with another one and even talk about legal rights as well as moral rights, although an effort is often made to bring the force of law behind some moral right, by making it legal right. So, the legal right and moral right should coincide and be recognized and must be protected by law. Children’s rights are a subject of Human Rights with particular attention to the rights of special protection and care afforded to minors. This right includes the right of the child to associate with both his/her parents, human identity, as well as the basic need for physical protection, food, universal State-funded education, health care, and criminal laws appropriate for the child’s age and development of the child. Also, equal protection of the child’s Civil rights and freedom from discrimination on the basis of the child’s race, gender, sexual orientation should be included. Therefore, if we go through the synopsis of the global view, there we can find under United Nations General Assembly summit in 1990, which adopted a declaration on survival, protection, and development of the child. The Convention on Rights of Child has been adopted by the General Assembly of United Nation on 20th November 1989 and ratified by India on 11 December 1992 It was required under the provisions of the UN Convention on the Rights of the Children, as under Article 4, that appropriate legislative, administrative and such other measures are to be taken by State parties to ensure that the rights guaranteed in the Convention are being implemented effectively. This implementation of the treaty at the international arena was decided to be monitored by the UN Committee on the Rights of the Child, based on periodic reports that are to be submitted by national governments of the State Parties. In accordance to this, based on the first report submitted by the Government of India in 1997, or the First India Country report, the UN Committee, through its Concluding Observations, recommended that there needs to be a statutory and independent Commission be set up, for monitoring the implementation of the UN Convention and to specifically look into child rights specific complaints. In furtherance to this, the Commission for Protection of Child Rights Act was enacted in 2005, to implement the objectives of UNCRC, as, through the preamble on the Act, it states that the law was enacted to “give effect to the policies adopted by the Government.... standards prescribed in the CRC, and all other relevant international instruments.”

Thereafter, the session on Child health, held on the 20th of May 2002, based on an international treaty, which was specifically arranged by the UN assembly, was titled ‘A world fit for children and it was based on an international treaty. The Republic of India enacted a law i.e. Commission for Protection of Child Rights Act 2005, which provides for the creation of the National and State commissions for protection of child rights, by the central and state government respectively. The mandate of this commission is to examine the safeguards for children and inquire into complaints of violation of child rights by the state or private individuals or entities. This mandate also includes inspecting custodial institutions for children, examining factors that affect the enjoyment of rights by children, and analysing laws to examine their compliance with the UN Convention on the Rights of the Child 1989 (UNCRC) and recommending remedial measures. The commission is also meant to serve as a forum that children can access easily to seek redressal for the violation of their rights. Now if it is observed, it will be found that the enactment of the act was made to ensure and edify the principles laid down in those treaties and summits wherein the Republic of India was a party to the same.

The relevant provisions of the said Act need to be understood in the present context. If the act, which provides a Commission for Protection of Child Rights Act 2005, is analysed, it can be seen that under section 3, it provides for the establishment of a National Commission for Protection of Child Rights to be made by the Central Government, as a body that would pertain particularly to Child rights, section 17 further requires the establishment of State Commissions, the powers of which are similar to that of the National Commission, as stated under section 24. The functions and powers of the National Commission are defined under section 13 of the said act. If a quick look is taken over section 13 of the said act, it will be found that certain things are provided in the said Act, and in fact, the commission is entitled to take suo-moto complaint and investigation in respect of deprivation and violations of child rights, non-implementation of law provided for protection and development of the children. The term “development” has its own importance in this particular act. When the Commission of Protection of Child Rights Act 2005, is being discussed, then automatically the reference of the rules under Juvenile Justice Care and Protection of Children Act 2007, will become relevant. The rule under the act of 2007 came into the picture on the 26th day of October 2007. In fact, if the rules and the preamble of the rules are being looked into, then, it can be categorically stated that the Convention on Rights of Child has been adopted by the General Assembly of United Nation on 20th November 1989 and ratified by India on 11 December 1992 emphasizing the conferment of rights on children and the juvenile. Therefore, it can be seen that the Act of 2005 and the rules of 2007 are in harmony with each other, with a common objective of the development of children within the nation, given the international treaty. Now in this regard, few important decisions will shed more light on this issue. Children are amongst the most vulnerable section in any society. They represent almost one-third of the world population and unless they are provided with the proper opportunities of making them grow into responsible citizens of tomorrow, they will slip out of the hands of the present generation. While the Indian Judiciary was deciding the rights, the judiciary referred to the growing consciousness of the world community in respect of child rights. The court, in the case of Salil Bali v Union of India[1], also referred to several international instruments like Beijing Rules, Riyadh Guidelines, and Havana Rules and recognized the special vulnerability of children. In reference to this, if the International scenario is considered, then it will surface that, the UN first recognized the rights of the child on 20th November 1959, followed by the Beijing Rules of 1985. Thereafter there was a guideline from the UN in 1990, commonly known as the Riyadh Guidelines of 1990, which specifically provided guidelines for the prevention of juvenile delinquency, followed by the Havana Rules on the 14th December 1990.

A short while ago, there was a case filed in public interest litigation before the honourable High Court at Calcutta by a society named Mushidabad Sonar Bangla Education and welfare society. Even if we look into the said matter we will find that in one of its order of the honourable division bench that is on 13-12-2019 that a cohesive platform must be created with the involvement of state government and West Bengal State Legal Service Authority as well as WBCPRC to ensure complete implementation of national early childhood care and education policy in letter and spirit.

Along with the said act, we have to also look into the National policy for children 2013, formulated by the Government of India. The very introductory paragraph of said policy recognized the fact, that, India is the home to the largest child populated country, and the Constitution of India guarantees fundamental rights to all the children in the country and empowers the State to make special provisions for the children. The directive principles of the state policy specifically guide the State in securing the tender age of the children from abuse and ensure that children are given opportunity and facility to develop. In fact the National policy of children of 1974, that recognized the program for children, should find a prominent place in the National Plan for the development of the human resources, so that the children grow up to become robust citizens, physically fit, mentally alert and morally healthy. Thereafter, the National chapter for children of 2003 adopted on 09th February 2004, underlines the intent to secure for every child its inherent right to be a child and enjoy a healthy and happy childhood, is also there. Therefore, the survival, health, nutrition, development, education, protection, and participation are undeniable rights of every child and the key priorities of this policy.

Therefore, the act is having an immense impact on the present society. To understand the perspective of the act, a few sections are to be considered which will give a definite idea about the act and how it is intended to be implemented in society for the benefit of child rights. Sections 16 and 23 of the said Act, deals with annual and special reports by the National and State commissions, that are to be submitted to the Central government and the pertaining State government, respectively.

In fact, based on this report, the central government and state government, whatever the case may be, shall cause the annual and special reports of the commission to be laid before the house of the parliament or state legislative respectively, and such is to be done, along with a memorandum of action taken or purpose to be taken on the recommendation of the commission, the reason given for non-acceptance to be communicated. This means we can have an idea of it having a huge impact and the fact that even the steps and implementation of the act are to be ratified by the legislative wing of the country.

Further looking into the Act, we see that section 15 of the Act lays down the procedures to be followed, post an inquiry, which usually brings to cognizance any violation of rights or contravention to any provision of the Act. This section exemplifies the importance and role of the Commission in matters of cognizance of Protection of Child rights in India. However, it was held in the case of Zainabhiva Education Society v. Chairman, Karnataka State Commission for protection of child rights, Bangalore and another[2], concerning section 15 of the Act, that the powers of the Commission under this section is only limited to giving recommendations to the concerned Government or authority, with respect to the requirement of initiation of proceedings for prosecution, or any such action deemed necessary for ensuring the compliance to the provisions of the act, and to protect the rights and interests of the child. And while the commissions can also recommend the Government or authority to grant as an interim measure, an interim relief to the victim or his family members, it is beyond the authority and jurisdiction of the commission to pass an order that directs the payment of such compensation.

Another important aspect of this Act that is worth bringing to light is the functions and powers of the National Commission and the State Commissions, section 13 of the Act enlists the powers of the National Commission and section 24 states that the provisions of sections 7, 8, 9, 10, sub-section (1) of section 13 and sections 14 and 15 shall apply to a State Commission too. This presents that in case of any instance of a violation of rights of children, both, the National Commission, as well as the State commission of that particular state, can take cognizance of the violation. This, thus, can call for a clash between the powers of the two commissions. To resolve this clash, section 13(2) of the Act can be understood, further in light of the stance of the Supreme court in this regard. Section 13 (2) provides that the National Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force. This was also reiterated in the case of National Commission For Protection of Child Rights & Ors. v Dr. Rajesh Kumar & Ors.[3], wherein the bench further observed that the National Commission and the State commissions must work in harmony and cooperation, with the ultimate objective to protect children from all sorts of abuse and exploitation, and also held that inquiry can be made by the National Commission into any matter of its concern, only as long as the State commission had not indulged into its inquiry, wherein then, the State Commission will be required to carry out their functions without interference by the National Commission.

In the said Act, it has also been stated under section 25, for providing trial in fast track mood of offense against the children or violation. For the same, the State government may take consultation of the Chief Justice of the High Court by notice with specifications for the establishment of a special session court in each district as a children’s court. And as provided under section 26, the appointment of Public Prosecutors or Special Public Prosecutors needs to be done, for Child rights specific claims in such Children’s courts. This aims to ensure that the matters pertaining to violation of any rights of children is being dealt with, exclusively, so as to focus solely and deeply on the essence of protecting such rights. From this Act, it has a clear indication of the policy, wherein the Government of India or the Republic of India is trying to implement a child’s rights as agreed in the UN convention. However, it is necessary here to note that these provisions haven’t been complied with completely. While there do exist Children’s courts, they have been set up under the Juvenile Justice Act and not definitely in accordance with the provisions of the Commission for Protection of Child Rights Act 2005. This issue is a very pertaining one and has been dealt with specifically by various judicial bodies, including the Supreme Court in the very recent case of National Commission For Protection of Child Rights & Ors. v Dr. Rajesh Kumar & Ors.[4] The court, in this case, required the High courts of the particular states wherein the provisions of establishing a Children’s Court and the appointment of a Public Prosecutor/Special Public Prosecutor, have not been complied with, to submit a report within 2 weeks, explaining the reason for the same. The respective State Governments were also issued notices to respond to such a non-compliance.

Additionally, in a case Forum for Fairness in Education An NGO, through its Authorised Person Shri Raghu S. Chari v Union of India and Ors[5], where the court found that the provisions of the Act were not being implemented in its true letter and spirit in Maharashtra, directions were issued for its implementation. Further, it was opined that a Grievance redressal mechanism is set up by the respective State Government, to address the grievances pertaining to the violation of Child Rights. Additional directions regarding this Mechanism were elaborated upon, including the procedure of receiving complaints being done in the traditional form, i.e. written, on toll-free numbers, as well as on dedicated websites. The anonymity of the complainant was also provided to be an option in cases of gross violation of rights wherein the complainant also bears a risk of becoming a victim.

It is thus quite apparent that the courts in India, through the provisions of the said Act, and through their interpretation of the same, aim to ensure that the objective of the Act is met. They issue orders and notices and guidelines for the enforcement of the same and to ensure that the promised rights of the Children are protected. In fact, after analysing the sections and provisions of the Act, it is very prominent that through this Act, strong efforts were made to ensure that the rights and interests of children are protected and in any case, if there is a violation, there are sufficient substantive and procedural guidelines that are available to remedy that violation. That formulation and submission, and a subsequent evaluation and scrutiny or reports submitted by the established Commissions, check for their accountability and efficiency. There are also measures taken by courts to check for their compliance with the Act. Additionally, efforts are made to study and research further into the field of child rights and include as many branched and specific rights of children, as deemed necessary. However, ensuring proper and absolute implementation of the Act will be the first step to attain the aforementioned objectives. It is also necessary to note that this Act is not stagnant. There are additional policies that are formulated from time to time, to cater to child rights, based on the reports and suggestions of the Commission and various other committees, NGOs, international organizations, and treaties. The National Policy for Children 2013, is one such example, which needs to be implemented as early as possible for the betterment of the children and society as a whole.

[1].  2013 Legal Eagle (SC) 533 : (2013) 7 SCC 705: (2013) 3 SCC (Cri) 686 : AIR 2013 (SC) 2089

[2]. (2019) 2 AIR Kant R 385.

[3]. (2018) 16 Supreme Court Cases 1: (2020) 1 Supreme Court Cases (Cri) 412: 2018 SCC OnLine SC 92.

[4] Id.

[5] 2016 Legal Eagle (Bom) 758 : (2016) 4 BomCR 391.

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