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Child Rights and the Constitution

Here, we will look into various legislations, other statutes, rules, regulations and laws in place regarding child rights and also look into the problems faced by children and the solutions to it. Finally, we will conclude what we can do to have better systems in place after looking at the schemes and policies implemented by the government. In Conclusion, we will analyse and suggest some changes to the present legal framework to include many other provisions necessary for the protection of the rights of children.

Children are necessarily entitled to various specific provisions in India and across the world, but their proper implementation can only lead to their realisation. Violation of rights of children can be seen in the form of abuse, trafficking, inadequate health facilities, malnutrition, and so on. The UN Convention on Child Rights led to development plans, strategies and various other programs to combat the violation of child rights.

A country like India, with the population level requires, needs to pay more attention to enforcing all the legislations, policies, rules and regulations that come out as notifications, it also needs assessment from time-to-time. Despite the presence of International and National Standards, children remain a vulnerable section of the society in need of special care and protection.

The country needs to interpret each section of an Act in its context and overcome its hurdles by finding means to provide equal access to education to all.

Through affirmative action mandated by the constitution of India, we can hope to achieve all-round development. India, being a diverse country, improvement has always been unstable, and some areas have come up well in the development indicators while others are still staggering behind. More and more children are malnourished today, and these issues need to be addressed for a more comprehensive framework. As per 2011 census, the growth in the implementation of child rights in India is stunted, we could hope to grow it with proper implementation of the laws.

Who is a Child?

Child means any person who has not completed eighteen years of age.[i]

What are Child Rights?

The most basic needs of the children are referred to as rights. The most basic needs of children are referred to as rights. Child rights are specialised human rights that apply to all human beings below the age of 18. According to the United Nations Convention on the Rights of the Child (UNCRC,1989), Child Rights are minimum entitlements and freedoms that should be afforded to all persons below the age of 18 regardless of race, color, gender, language, religion, opinions, origins, wealth, birth status or ability and therefore apply to all people everywhere. The specialised rights found by them are Right to Survival, Protection, Participation and Development. [ii]

Problems Children In India Face

Children in India go through the following problems for which various legal provisions have come about

Child Abuse

Children were subjected to exploitation in various forms, and thus the need for provincial legislation was realised. In several countries like India, intrafamilial child abuse, that is detrimental to the growth of a child has gained momentum, and this has led to the establishment of National Institute for Public Cooperation and Child Development (NIPCC), 1988. Consequently, Pande can argue that "... high pitched campaigns have often yielded concentration on non-issues. Child abuse is one such case since the problem has been taken up for implementation without having ascertained the nature and magnitude of the problem." [iii]

Various provisions in the Directive Principles of State Policy (Constitution of India) and the Indian Penal Code provides specific provisions if the child rights are violated. The Ministry of Women and Child Department(MWCD) came out with four indicators to demarcate the extent of abuse including physical, sexual, emotional and girl-child neglect. Goa Children's Act, 2003 was the only specific piece of child abuse legislation before the 2012 Act called POCSO(The Protection of Children from Sexual Offences (POCSO) Act, 2012).

POCSO is the extensive provision relating to child abuse in India and provides for the definition of a child, offences under the Act and also for the creation of a Child Welfare Committee. Article 15(3) and Article 39 under Part IV of the Indian Constitution, including other legislation passed by the Indian Parliament delivers the same purpose as UN Convention on the Rights of the Child(UNCRC), adopted by the UN General Assembly in 1989.

Child Soldier

Children below the age of 18 are recruited by various Military Corps and Armed Forces according to the capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes.[iv]

Article 1, 2, 3 and 4 of the Optional Protocol to the Convention on the Rights of the Child [v] provides legislations in favour of children recruited by Armed Forces and Military Corps. Specifically in India, Section 83 of the Juvenile Justice Act, 2015 penalises the State or any other such organisation that recruits children forcefully for labour work. Article 19 and Article 37a of CRC (The United Nations Convention on the Rights of the Child) confers upon the State the responsibility to prevent any such abuse and also the duty to protect the rights of Children.

Furthermore, in addition to the Articles enshrined in the Constitution of India for the protection of rights of children, Article 34 and 36 of CRC and also the POCSO Act provides for the powers of the State to make rules to protect the child against all forms of exploitation that he may be subjected to.

In the case of Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India, the court issued a directive that North-Eastern States and relevant Central Government ministries needed to ensure that schools, hospitals and children’s home complexes currently occupied by armed/security forces are vacated and that school buildings and hostels are not allowed to be occupied by the armed or security forces in the future for whatsoever purpose. [vi]

Child Labour

According to Article 1 of CRC,  A child means every human below the age of 18 years unless, under the law applicable to the child, a majority is attained earlier. The Article thus grants individual countries the discretion to determine by law whether childhood ceases at 12, 14, 16, or whatever age is found appropriate.[vii]

The main object of the Child Labour ( Prohibition and Regulation) Act, 1986, is to address the concern over the employment of children in hazardous industries when they are below the age of 14. The Act under Section 13 gives the facilities children are entitled to while they are employed (in case the child is above the age of 14) and also lists which industries cannot employ them. Factories Act 1948, The Beedi and Cigar Workers( Condition of Employment) Act, 1966, Plantation Labor Act, 1951 and Domestic Workers (Registration Social Security and Welfare) Act, 2008 contains in them relevant provisions under the Sections enacted in the legislation.[viii]

Changes in the form of Amendments have been made in the Child Labour Act of 1986 with time when the inclusion of more exclusive provisions was realised. The Act delegates the power to make rules and regulations to the Central Government and the concerned authority who have come out with provisions regarding processes and occupation that children can engage in and also relating to the penalties that the State or the company/authority that employs the child may have to face if they violate the norms of the Act. The National Policy on Child Labour, August 1987 contains the action plan for tackling the problem of child labour.

It envisages:

  1. a legislative action plan,
  2. focusing and convergence of general development programmes for benefiting children wherever possible, and
  3. project-based action plan of action for the launching of projects for the welfare of working children in areas of high concentration of child labour.[ix]

Moreover, The Right to Education Act, 2009 ensures all children below the age of 14 get to attend schools and thus preserves the rights of children.

The International Labour Organisation(ILO) is a United Nations(UN) organisation which was established in 1919, and it has set a legal standard in the form of Recommendations and Conventions in pursuance of prevention of child labour. Some of the 8 Core Conventions include Forced Labour Convention (No. 29), Abolition of Forced Labour Convention (No.105), Equal Remuneration Convention (No.100) among many others.

Child Marriage

Even though the age for marriage has been increased to 18 for girls and 21 for boys, there is still child marriage prevalent in India due to reasons uncountable, among which is poverty. The Child Marriage Restraint Act, 1929 mentions that the punishment of imprisonment up to 15 days along with a fine of one thousand rupees. It is the amendment of this Act that raised the age of marriage on boys and girls in India, the amendment in 1940 also included other provisions regarding the same.

Prohibition of Child Marriage Act, 2006 was enacted to amend the flaws in the Child Marriage Restraint Act, and under this Act (not applicable to the territory of Kashmir and Muslims) the children have the choice to declare their marriage as worthless up to two years of reaching adulthood. [x]

According to the report Improving Children’s Lives, Transforming the Future-25 years of child rights in South Asia by the United Nations’ children agency, UNICEF, India has the second-highest number of child marriages with 43% of women aged the age of 18 between 2005-2013 first married 20-24.[xi]

There is a clash between the Central Law and Personal Law. Hindu Remarriage Act, 1956 specifies punishment only if the consent of the Union is not obtained and only if one of the parties wants to get the marriage annulled. In Muslim Personal Laws[xii] and Indian Christian Marriage Act (ICMA), 1872 and Under Parsi Marriage and Divorce Act (PMDA), 1936, the age and other provisions regarding child marriage are different.

In recent years there has been more significant movement at the state level in terms of the development of state-level action plans. While some states have taken limited action, Rajasthan launched a Strategy and Action Plan for the Prevention of Child Marriage in March 2017.[xiii]

Child Trafficking

Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (proposed by the Ministry of Women and Child Development) sets up State and District Anti-Trafficking Committees for institutionalised, organised and coordinated preventive strategy to ensure the safety of vulnerable sections of the society like women and children.[xiv] Article 23 of the Indian Constitution abolishes human trafficking and any forms of forced labour like begar.

Two other essential legislation which was enacted to prevent children trafficking and prostitution are The Suppression of Immoral Traffic in Women and Girls Act, 1956 and The Immoral Traffic (Prevention) Act, 1956 both prevent commercialised vice and soliciting.

Further, Sections 370 and 370A were introduced by the Criminal Law (Amendment) Act, 2013. The fundamental changes introduced by these provisions are the specific criminalisation of recruitment, transfer, transport, harbouring a person for prostitution, forced labour, and so on.[xv]

The UN Sustainable Development Goal 8.7 asks all nations to ‘Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms .’[xvi]

Child Victims Of Domestic Violence

Child Victims of Domestic Violence: Domestic violence is the cause which affects the Education of the children. Pattern of abusive and coercive behaviour of intimate partners by using, physical, sexual and psychological attacks reduced academic progress and increased disruptive or unfocused classroom behaviour for children, adolescents, and teenagers. Children from dysfunctional families are less likely to function successfully at school (Valerie Garnett, 2013).[xvii]

Violation of Educational Rights

In the Global level, Right to Education (RTE) was inculcated in the Universal Declaration of Human Rights in 1948, and This led to the enactment of Right of Children to Free and Compulsory Education Act or the RTE Act, 2009. The Act states education as a Fundamental Right of every child between the age of 6-14 years. To get a historical background, the Education Commission started working in 1964 and held contentions with many global organisations, and finally, the responsibility of education was conferred on the Center and the State(1976).

The 86th amendment to the Indian Constitution in 2002 added Article 21A as a fundamental right saying- the state shall make available free and necessary education to all children of the age of 6 to 14 years in such way as the state may, by law, decide.

Apart from this, Article 45 of the Directive Principles of State Policy provides that the State must ensure every child gets to be educated. Article 30 of Part III of the Constitution of India is a provision specifically for the minorities to set up and manage educational institutions. Article 29(1) and Article 350(B) has relevant provisions in regard of language safeguards (for linguistic minorities). Article 15, 17, 46 safeguards the educational interests of the weaker sections of Indian society, that is, socially and educationally backward classes of citizens and listed castes and scheduled tribes. [xviii]

Some of the significant Child Rights in India are Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, Goa Children’s Act, 2003 and The Indian Majority Act, 1875.

Other laws relating to Child Labour in India include Children (Pledging of Labour) Act, 1933, The Bonded Labour System (Abolition) Act, 1976, 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 and The W.B. Shops & Establishment Act, 1963.

Some of the legislations against Child Trafficking include Indian Penal Code 1860, Andhra Pradesh Devadasi’s (Prohibition of Dedication) Act, 1988 or Karnataka Devadasi (Prohibition of Dedication) Act, 1982, Bombay Prevention of Begging Act, 1959, Immoral Traffic (Prevention) Act, 1986, Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, The Suppression of Immoral Traffic in Women and Girls Act of 1956 (SITA) and, The Immoral Traffic (Prevention) Act of 1986 (ITPA), colloquially called PITA, an amendment to SITA.

Each State has its legislation Drugs, and Substance Abuse and these laws apply to children as well.

Laws relating to Child Marriage in India are Hindu Marriage Act, 1956, Muslim Personal Law, Indian Christian Marriage Act (ICMA), The Child Marriage Restraint Act, 1929, Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976, The Prevention of Child Marriage Bill, 2004 and Supreme Court Order 252.

Child Rights In India

The child rights in India are mentioned in the constitution, in Acts, legislations, policies and schemes.

Constitution of India

The Founding Fathers of the Constitution have brought about specific provisions in Chapter III and IV of the Constitution under Fundamental Rights and Directive Principles of State Policy respectively, recognising the importance of child welfare and their development.

The Preamble of The Indian Constitution

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;[xix]

The Preamble of the Indian Constitution gives us a bird’s eye view of what basic rights the children are entitled to.

The Fundamental Rights

Fundamental rights are those rights which are essential for the development of the individual and the society and apply to everyone irrespective of caste, creed, sex, birthplace, religion or race. These are justiciable and enforceable rights.

The Fundamental Rights enshrined in the Constitution of India are as follows:

  1. Right to equality (Articles. 14-18)
  2. Right to freedom (Articles. 19-22)
  3. Right against exploitation (Articles. 23-24)
  4. Right to freedom of religion (Articles. 25-28)
  5. Cultural and Educational Rights (Articles. 29-30), and
  6. Right to constitutional remedies (Articles. 32-35)

Article 14- Equality before Law
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.[xx]

This provision of the Indian Constitution applies to the children as well.

Article 15- Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth

Article 15(1) specifies that the State shall not discriminate any citizen residing in the territory of India based on caste, creed, sex, birthplace, religion or race and 15(2) says that no person can be restricted from using any public property on any of these grounds.

Article 15(3)
Nothing in this article shall prevent the State from making any special provision for women and children.[xxi]

The above Article is a positive step for the benefit of women and children, and this came around the time when Article 21 was inculcated in the Constitution of India providing the right to food, nutrition and health.

Article 17-Abolition of Untouchability
Untouchability is abolished, and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable under the law.[xxii]

This Article prevents the practice of Untouchability in any form within the territory of India and the need for such a right was realised because children were subjected to brutal exploitation in the past.

Article 19 -Protection of certain rights regarding freedom of speech etc

Article 19(1) of the Indian Constitution provides for the protection of different freedoms of the citizens of India like the freedom of speech and expression, the freedom to form associations and assemblies, the freedom to move, reside and settle and the freedom to choose a profession.

The other clauses of the same Article talks of how the State can impose reasonable restrictions on this Article. Children also, subject to specific conditions are entitled to Article 19 enshrined in the Constitution of India.

Article 21- Right to Life and Liberty
No person shall be deprived of his life or personal liberty except according to a procedure established by law.[xxiii]

Article 21 of the Constitution of India states underlies the primary importance of early childhood developments and the right to food, nutrition and health are part and parcel of this right.

Article 21A- Right to Education
The State shall provide free and compulsory education to all children of 6 to 14 years in such manner as the State, may by law determine.

A series of decisions, including Mohini Jain v. the State of Karnataka, 1992, Unnikrishnan v. State of A.P., 1993, etc. culminated in converting a non-enforceable right to education in Directive Principles of State Policy into an enforceable Fundamental Right, leading to the incorporation of Article 21-A.[xxiv] In the judgement by the Supreme Court of India, the right to life of an individual is fully realised only when it is read with right ti education and hence, it was added after Article 21 and was added to the Fundamental Rights and subsequently removed from the Directive Principles of State Policy.

Article 23- Prohibition of traffic in human beings and forced labour

  1. Traffic in human beings and begar and other similar forms of forced labour are prohibited, and any contravention of this provision shall be an offence punishable per law
  2. Nothing in this article shall prevent the State from imposing compulsory service for a public purpose, and in imposing such service, the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.[xxv]

This right provided under the Fundamental Rights can also be read with the Right against Exploitation under Article 17 of the Indian Constitution and is a vital provision in protecting the rights of children.

Article 24-Prohibition of employment of children in factories, etc

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause ( 7 ); or such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause ( 7 )[xxvi]

More often than not, we get to hear the world Child labour, to prevent this from happening, a Fundamental Right, justiciable and enforceable has been brought about

Other Articles
Children in India are also entitled to other rights like, Right Protection against arrest and detention (Article 22), Freedom of Conscience and practice of Religion (Article 25), Freedom to manage religious affairs (Article 26) , Freedom to promote one’s religion (Article 27), Freedom of religious instruction (Article 28), Protection of Rights of Minorities (Article 29) including the Right to conserve one’s language, script and culture and facilities for instruction in mother-tongue at primary stage under Article 350, and The Right to move the Supreme Court for enforcement of rights (Article 32) popularly known as Right to Constitutional Remedies.

Directive Principles of State Policy

Though the Directive Principles of State Policy are supplementary to Fundamental Rights and provide direction to governance, they are, however, nonjusticiable in themselves and require legal sanction for realisation. There are some specific provisions under this for children and the realisation of their rights.

Article 39A- Equal justice and free legal aid
The State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.[xxvii]

Article 39(e) states that
that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;[xxviii]

Clause (e) of Article 39 has provisions relating to the health and well-being of the children.

Article 39(f) states that
those children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. [xxix]

This provision in the Constitution of India talks specifically about the opportunities and facilities to be vetted out to them in a manner that protects their freedom and dignity.

Other provisions under the Directive Principles of State Policy include Article 47 and Article 51 that enshrines the raising of nutrition level to meet the standards of people and the need to respect the International treaties entered upon by India.

Fundamental Duties

Article 51A
Clause (k) of Article 51A states that

It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.[xxx]

India adopted a National Policy for Children in 1974, declaring children to be the nation’s most precious asset. In the 1990 World Summit for Children, the Government of India adopted a National Plan of Action for Children in 1992 keeping in mind some goals and subsequently in the same year ratified Conventions on the Rights of the Child (CRC).

The 86th Amendment to the Constitution, on the Fundamental Right to Education for the 6 to 14 years age group, has also led to the inclusion of an additional clause under article 51A that imposes a fundamental duty upon parents or guardians to provide opportunities for education of their children/wards between the ages of 6 and 14 years.[xxxi]

Constitutional Provisions must be backed by law, policy and programmes and schemes

The following are some Articles and the legislations which came about as the need to enforce them arose.

Article 21

  • Right to Education Bill, 2008

Right Against Exploitation (Articles 23, 24 and 39e)

  • The Immoral Traffic (Prevention) Act, 1956
  • Bonded Labour System Abolition Act (1976)
  • Child Labour (Prohibition and Regulation Act), 1986
  • Children (Pledging of Labour) Act, 1933

Right to equality and equal opportunity; and Right against discrimination (Article 15,39f;)-

  • The Persons with Disabilities Act, 1995
  • Laws for Scheduled Caste(SC) and Scheduled Tribe (ST)
  • The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013
  • Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994

Protection against arrest and detention (Article 22)

  • Juvenile Justice(JJ) Act, 2015[xxxii]

Legislations In India
The Right Of Children To Free And Compulsory Education Act, 2009
The Right to Education is an Act which was enacted on 4 August 2009 in pursuance of Article 21A of the Indian Constitution, and this Act made education compulsory for the children in the age group of 6-14, also making it a fundamental right.

The Act came up with some unexpected provisions like the specification of norms in elementary schools and also prevented the child from being expelled or held back from writing board examinations. The observation made by Sam Carlson on the enactment of The Right to Education Act of 2009 is India was,  The RTE Act is the first legislation in the world that puts the responsibility of ensuring enrolment, attendance and completion on the Government. [xxxiii]

It is Act No.35 of 2019, and the extended title of the Act reads:
An Act to provide for free and compulsory education to all children of the age of six to fourteen years. S.3 (1) reads the same and S.3(2) states that the child shall not pay any fee that may prevent him from completing his elementary education. S.16 of the Act has provisions for holding back the child from going to school and sub-section 4 under S.16 states that, No child shall be expelled from a school till the completion of elementary education.

The Act under Section 3 further refers to the Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which has provisions for the education of children with disabilities. Under Section 4 of the Act, there are specifications regarding the elementary education of the child and says that anyone who is above the age of 6 is also entitled to the right to elementary education. Further provisions under Section 4 talk about the specialised training the child is entitled to, as the situation may ask for.

This can be seen as an essential improvement in the legislation for the better enforcement of the rights of children. Section 5 of Chapter II covers the necessary provisions under the transfer of schools and goes on to state that the delay in producing a transfer certificate shall not be the reason for the denial of admission.

In addition to Directive Principles of State Policy, under Section 6 of the Act, duties are delegated by the Parliament to the Central and State governments to establish schools in whichever areas found necessary within three years of the commencement of the Act. S.7 with the headnote Sharing of financial and other responsibilities, states the financial responsibilities conferred upon the Central Government by the Act and how the Central Government may allocate its budget or establish any authority as may be deemed necessary.

The duty of the appropriate Government to establish schools and maintain the infrastructure and other facilities like faculty, training facilities, attendance, reservation, and so on are elaborately discussed under Section 8 of the Act. The other provisions under Chapter III deal with the responsibilities of the local authority, as the situation may be and Section 10 also confers upon parents or guardians the duty to admit their children in school. In addition to the duties and responsibilities of the Government, this section of the Act has significance.

Chapter IV recognises the standards that the school must live by, some rules that it must abide by, under the Act.

Some of them are:
The school must provide free and compulsory education (Section 12), the school must not collect a capitation fee or screening procedure for admission (Section 13), the collection of the proof of the age of the candidate Section 14, the collection of certificate of recognition (Section 17) and so on. Every school shall have a School Management Committee (Section 20) and must follow every norm, as stated in Section 19 of the legislation(the Act sets up a committee).

All these sections of the Act have come in the light of protection of the rights of education of children. Section 16 of the Act, formerly present in the Act prevents any physical punishment and mental harassment to the child. For the welfare of child enrolled in a school, the school mandatory should have a Development Plan (Section 22) and various provisions in the same chapter deal with the teachers, where duties and powers are conferred upon them for the welfare of the child by every other means. Chapter V sets up a particular system of evaluation of papers.

Chapter VI, which is the most crucial section of this Act, deals with the protection of the rights of children. Section 31 talks about how The National Commission for Protection of Child Rights constituted under section 3, or, as the case may be, the State Commission for Protection of Child Rights constituted under section 17 must ensure that the child’s rights are monitored.[xxxiv]

The Act sets up a National Advisory Council, which shall aid the Central Government in implementing the provisions of the Act and suggest for changes from time-to-time for the development of child education (Section 33). Section 34 of the delegates the same powers to the State Advisory Council. The power to issue directions within the Act is with the Central Government, which may, with time, delegate the power to some authority. Thus, the passing of the Right to Education Bill, 2002 was a successful step in pursuance of protection of the educational rights of the child.

The Prohibition Of Child Marriage Act, 2006
Due to the social effects of child marriage on young children, especially girls, child marriage was formally abolished in 1929, with the enactment of the Child Marriage Restraint Act (CMRA). However, as a result of the CMRA's ineffectiveness, new legislation was enacted 77 years later, in the form of the Prohibition of Child Marriage Act, 2006 (PCMA, 2006).[xxxv] The High Court held that provisions of the Prohibition of Child Marriage Act, 2006 are secular, that they apply to all communities including Muslim, and that these provisions override the Muslim personal laws.[xxxvi]

Section 375 of the IPC provides for three circumstances relating to rape:

  1. Firstly sexual intercourse with a girl below 18 years of age is rape (statutory rape).
  2. Secondly and by way of an exception, if a woman is between 15 and 18 years of age, then sexual intercourse with her is not rape if the person having sexual intercourse with her is her husband. Her willingness or consent is irrelevant under this circumstance.
  3. Thirdly sexual intercourse with a woman above 18 years of age is rape if it is under any of the seven descriptions given in Section 375 of the IPC (non-consensual sexual intercourse).

Under Article 34 of the CRC, the Government of India is bound to undertake all appropriate national, bilateral and multilateral measures to prevent the coercion of a child from engaging in any unlawful sexual activity. [xxxvii]

It is an Act(No.6 of 2007) to provide for the prohibition of solemnisation of child marriages and matters connected therewith or incidental thereto(Long Title). It extends to the whole of India except the State of Jammu and Kashmir, and it also applies to all citizens of India without and beyond India(Section 1(2)).[xxxviii]

Section 3 of the Act deals with the declaration of child marriage as null and says that the marriage shall be voidable at the option of the contracting party who was a child at the time of the marriage, provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage. Further, if at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer( Section 3(2)).[xxxix] This is one of the most critical provisions of the Act and has its importance in many case-laws.

Section 4 has dealt with Provision for maintenance and residence to a female contracting party to child marriage and states that the male contracting party will have to maintain the female minor and in cases where he is a minor himself, the female minor must be maintained by the parents or guardians of the male contracting party. Section 5 and Section 6 of the Act are significant in the light of child rights because it deals with the children of child marriages, their custody and legitimacy, respectively.

The punishment (imprisonment and/or fine as the situation may demand) to the male party to the child marriage who was a major during the solemnisation of the marriage is mentioned in Section 9 of the legislation. Section 15 makes the offence of child marriage cognizable and non-bailable and Section 16 sets up a Child Marriage Prohibition Officers.

More often than not, children are kidnapped and forced into child marriage and sometimes even sold for the same, and the marriages arising out of such situations shall necessarily be null under Section 12(An appropriate step to prevent forced child marriages in children violating their rights).

The Child And Adolescent Labour (Prohibition And Regulation) Act, 1986
The Central Government of India brought about this Act called Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 ("CL Act") to put an end to the evil practice of child labour in India. According to the amendment made by the Parliament in the year 2016 in this regard, the name of the Act has been changed to 'Child and Adolescent Labour (Prohibition and Regulation) Act, 1986' and this Act has the provisions for the employment of children in any hazardous industries.

It is an Act to prohibit the engagement of children in all occupations and to prohibit the engagement of adolescents in hazardous occupations and processes and the matters connected therewith or incidental thereto (Long Title). [xl]

This Act extends to the territory of India and Section 2 of the Act with Headnote Definitions has the meanings of the legal jargons used in the legislation. Part II of the Act is the essential Part of the Act and states that children in the age-group of 6-14 shall not be allowed to work in hazardous industries and can work in such establishments which are not harmful and does not hamper the education of the child. Section 5 sets up a Technical Advisory Committee which is constituted by the Central Government to help it with the enforcement of various statutes of this provision and also to advise the Central Government on the same.

Part III regulates the conditions of work of Adolescents and states that no child shall be required to work beyond the duration, period and curfew of work. They are also entitled to weekly holidays(Section 8) and can also approach the Magistrate or the police directly if any of the provisions of this Act are violated.

The health and safety of the adolescent working in an appropriate industry have been laid down in Section 14 of the Act which must be abided by for the proper working conditions of children. The Act also lays down the penalties and characterises the offence as cognizable(S.14B). S.14C constitutes a Child and Adolescent Labour Rehabilitation Fund to which the amount the employer owes to the child must be credited. Further, to protect the mental health of the child, the child is entitled to rehabilitation under S.14D. This shows how significant Labour Laws in India are.

The Juvenile Justice (Care And Protection Of Children) Act, 2015
The Juvenile Justice (Care and Protection of Children) Act, 2015(from now on the JJ Act) o juveniles in conflict with law and children in requirement of care and protection. The law saw its course and proved to be quite useful with several convicts been held for the commission of offences under the Act of 2000, which earlier went unnoticed due to absence of a specific law in this regard.[xli]

It is Act No.2 of 2016 and was enacted in pursuance of Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (1993), and other related international instruments.[xlii]

Chapter II of the Act deals with The General Principles of Care and Protection of Children like Presumption of innocence, dignity and worth, best interest, safety and measures. Section 4 of this Act constitutes a Juvenile Justice Board, and the Central Government confers upon it the right to take necessary steps in pursuance of this legislation. Section 8 broadly lays down the functions of the Board, and it has provisions to adjudication of justice.

Section 10 states that the child in the Juvenile Police Unit must be produced before the magistrate within 24 hours. Each of these provisions shows how necessary it is to protect the legitimate rights of the people. Section 12 has the provisions for the child to be released on bail and the circumstances under which it can happen. Most of the sections of this Act deal with the redressal of the grievances, duties of the magistrate and penalties and all of these are more or less related to the rights of children in India.

Section 19 of the Act empowers the Central Government to constitute a Children’s Court which will broadly deal with cases under this Act. Section 27, perhaps the significant Section 27 of the Act sets up a Child Welfare Committee for discharging the duties on behalf of the Central Government and also for the sensitisation of it and the provisions relating to the power and functions of the Committee has been put forth in the same chapter in the further provisions.

The final sections of the Act deal with the care and protection of children in conflict with the law and the registration of childcare institutions. Following the Act, there shall be a constitution of Observation Homes(S.47), Special Homes(S.48), Place of Safety(S.49), Children’s Home(S.50) and Fit Facility(S.51). The concept of Adoption, which has debates going around it even in the modern days, has relations with Child Rights, and it has been covered under S.56 of the Act.

It has provisions for adoption within India and outside India and the Act also talks about the setting up of various Agencies to keep a check upon it. This shows the extent to which Child Rights has been brought to the mainstream. Chapter IX talks in length about the punishments to those who violate other rights of children specified under this Chapter which include kidnapping, abduction, sale of children, using a child for peddling, and so on. The State Governments shall constitute a Juvenile Justice Fund(S.105) and District Child Protection Unit(S.106) all in the interest of protecting the rights of the children.

The Protection Of Children From Sexual Offences Act, 2012
This Act was enacted to discourage the wide-ranging child sexual abuse and to protect the legitimate rights of the vulnerable sections of the society. India has signed the UN Convention ratified this Act and hence had to implement it for the physical, emotional, intellectual and social development of the child.

The punishments in violations of this Act varies according to its criminal degree. It is an Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for the trial of such offences and matters connected therewith or incidental thereto.[xliii]

Chapter II deals with the various sexual abuses that are common in today’s world; the sub-sections also include its definitions and the punishment in its regard. Chapter II also deals with sexual assault, aggravated sexual assault, sexual harassment and the punishment thereon. Chapter III has all offences commitment against children concerning pornography.

Further provisions of the Act deal with the procedure of redressal for vetting out justice to the aggrieved party. All these show that it is necessary to properly implement these Acts to bring about all-round development in child rights in India. Chapter VI has an essential piece of information in recording the statements of the child and makes sure he has every right to speech and expression. Chapter VII of the Act constitutes a Special Court for proper implementation of the provisions of the Act and for the speedy trial of cases that come under the Act.

Section 39 of the Act makes sure the mental health of the child is not affected by a bad experience and offers assistance for rehabilitation. The child has the right to take assistance of legal practitioner.—subject to the proviso to Section 301 of the Code of Criminal Procedure, 1973 (2 of 1974){and Section 40 of this Act} and the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act.[xliv]

The modification in the law will address the need for stringent measures against the rising trend of child sex abuse in the country and combat the menace of relatively new kind of crimes, the government said, stressing that the strong penal provisions will act as a deterrent. [xlv]

The Commissions For Protection Of Child Rights Act, 2005
It is An Act to provide for the constitution of a National Commission and State Commissions for Protection of Child Rights and Children's Courts for providing speedy trial of offences against children or of violation of child rights and for matters connected in addition to that or incidental thereto.

This Act enacted in pursuance of Declaration on Survival, Protection and Development of Children adopted at United Nations (UN) General Assembly Summit in 1990, Convention on the Rights of the Child (CRC), National Charter for Children, 2003 and UN General Assembly Special Session on Children held in May, 2002 adopted an Outcome Document titled A World Fit for Children.[xlvi]

Section 3, Chapter II of the Act talks about the establishment of a National Commission for Protection of Child Rights its duties, powers and responsibilities. The rest of the sections of the chapter talks of the constitutions and the protection of child rights children are entitled to. Chapter IV sets up a State Commission for Protection of Child Rights. Chapter V talks about the setting up of Children’s Courts, wherever necessary for the proper implementation of the provisions of this Act.

This Act was enacted in the establishment of commissions but is as essential as the other Acts that provide for the protection for specific rights of the children.

The Children Act, 1960
In the light of the protection of the rights of children in the Union Territories, this Act was enacted. The Long Title of the Act reads, An Act to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in the Union territories.[xlvii] Child Welfare Boards and Children Courts are established under Section 4 and 5 of this Act, respectively(Chapter II). Chapter IV of the Act talks in detail about Delinquent Children, their bail and assumptions relating to it. It is a vital Act enacted in respect of Juvenile Delinquency.

Judicial Response
M.C. Mehta Vs. State of Tamil Nadu and Others-
The Court found that children under the age of 14 could not be engaged in hazardous employment, and ordered the government to establish and maintain a child labour rehabilitation welfare fund.[xlviii]

Mohini Jain vs. State of Karnataka
In this case, the Supreme Court was called upon to deal with the question of right to education under Article 41 and once again the Court emphasized the importance of Directive Principles by holding that the right to education is concomitant to the Fundamental Rights and made the following observation:
The directive principles which are fundamental in the governance of the country cannot be isolated from the Fundamental Rights guaranteed under Part III. These principles have to be sent into the Fundamental Rights. Both are supplementary to each other. The State is under a constitutional mandate to each other.

The State is under a constitutional mandate to create conditions in which all could enjoy the Fundamental Rights guaranteed to the individuals under Part III. Without making Right to education under Article 41 of the Constitution a reality, the Fundamental Rights under Chapter III shall remain beyond the reach of the vast majority which is illiterate.

The Fundamental Rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and thoroughly enjoyed unless a citizen is education and is conscious of his individualistic dignity.[xlix]

Vishal Jeet vs. Union of India
Hon'ble Supreme Court issued directions to the State Government for setting up rehabilitate homes for children found begging in streets, and also the minor girls pushed into 'flesh trade' to protective homes."[l]

Other Committees And Organisations
National Human Rights Commission (NHRC)
The National Human Rights Commission started making legislations for the protection of the rights of children from October 1993 with the advent of Child Labour (Prohibition and Regulation) Act, 1986. Constitution also has provisions for protecting children from hazardous industries in Article 45. The Chairperson, Members and Special Rapporteurs of the Commission have toured rigorously to monitor States where child labour is prevalent.[li]

Right to Education, RTE became a fundamental right after the 86th amendment to the constitution of India due to the efforts of NHRC. In the year 2004, the Commission asked the Central Government to enact and enforce legislation to prevent children living with HIV/AIDS from being discriminated against, including being barred from school (Right to Health).

In terms of the Provisions of Section 5 of the Child Labour (Prohibition & Regulation) Act, 1986, further occupations and processes may be added to the Schedule of the Act as per the recommendations of the Child Labour Technical Advisory Committee (CLTAC). Besides, a Central Advisory Board on Child Labour has also been constituted to review the implementation of the existing legislations and suggest measures for the welfare of working children.[lii]

In addition to this, various legislations enacted by the Parliament of India has sections by which an exclusive committee authority and a court could be established in the exercise of that particular provision of the Act.

The Ministry Of Women And Child Development
The Ministry of Women and Child Development, a branch of the Government of India, is an apex body for the administration of the rules and regulations and laws relating to women and child development in India. [liii] The Ministry has been implementing various schemes for the upliftment of children in society, and some of them have proved to be immensely successful. They are listed below:


  • National Institute of Public Cooperation and Child Development (NIPCCD)
  • National Commission for Women (NCW)
  • National Commission for Protection of Child Rights (NCPCR)
  • Central Adoption Resource Agency (CARA)
  • Central Social Welfare Board (CSWB)
  • Rashtriya Mahila Kosh (RMK)

National Institute of Public Cooperation and Child Development (NIPCCD)
National Institute of Public Cooperation and Child Development, popularly known as NIPCCD, is an apex organisation for the promotion of the development of women and children. Established in New Delhi in the year 1966 under Societies Registration Act of 1860, it functions under the aegis of the Ministry of Women and Child Development.[liv]

National Commission for Women (NCW)
The National Commission for Women (NCW) is a statutory body of the Government of India, generally concerned with advising the government on all policy matters affecting women. It was established on 31 January 1992 under the provisions of the Indian Constitution, as defined in the 1990 National Commission for Women Act.[lv]

Child Rights Commissions
National Commission for the Protection of Child Rights (NCPCR)

The Protection of Child Rights Act, 2005 delegated the power to set up a National Commission for Child Rights to the Central Executive (Section 3), which notified the setting up of NCPCR on 20th Jan 2006. [lvi]It was established by the Government under this Act to implement all the provisions properly and to suggest changes to the present legal framework.

According to the Act, the Commission also has the responsibility to protect the child from discrimination based on class, creed, race, gender, place of birth or religion. It shall also give special attention to matters regarding child rights protection and care, review then and come up with an alternative development plan.

State Commission for the Protection of Children Rights (SCPCR)
The Protection of Child Rights Act 2005 delegates the power to set up a State Commission for Child Rights to the State Executive (Section 17), which implements the provisions of this Act, reviews it and suggests a different method for its working after implementation. In Kerala, we have the Kerala State Commission for the Protection of Child Rights, which concentrates mainly on ending the child rights problems in Kerala.

Central Adoption Research Authority (CARA)
It is a nodal body of the Ministry of Women and Child development, and it monitors and regulates in-country and inter-country adoptions. It was constituted because India was a party to the multilateral Hague Convention and the authority also conducts orientation programs and training.

Central Social Welfare Board (CSWB) and Rashtriya Mahila Kosh (RMK) are similarly two bodies set up by the same Ministry to ensure the protection of the social welfare of women and children.

Programs And Schemes
The below mentioned are some schemes and programs brought about to protect different child rights as the situation may seem.

Integrated Child Development Service(ICDS) Scheme
The Integrated Child Development Service (ICDS) Scheme was implemented to provide for nutrition, immunisation, vaccination and other health-related provisions. It is one of the World’s most prominent programmes and has been renamed as Anganwadi Services. Their objectives are to protect the mental, physical, psychological health of the child.

Integrated Child Protection Scheme (ICPS)
Is a governmental program implemented by the Government Of India to help secure the safety of children, with a particular emphasis on children in need of care and protection, juveniles in conflict or contact with the law and other vulnerable children. Its primary purpose is to create a central structure to provide oversight and standardisation for pre-existing and evolving child protection schemes in India. Proposed in 2006 and implemented in 2009, the ICPS is administered at the state level by state child protection committees and societies and at the district level by district child protection societies, among other institutions.[lvii]

National Child Labour Project (NCLP) Scheme
The Central Government has initiated the National Child Labour Project (NCLP) Scheme to prevent child labour in the country, and the scheme focuses on protecting children working in hazardous industries.[lviii]

Beti Bachao Beti Padhao
The Department of School Education and Literacy has supported The Ministry of Women and Child Development to roll out this program to enhance the sex ratio and the status of girl children in schools.

Swachh Vidyalaya
This campaign has been rolled pout in schools by The Ministry of Women and Child Welfare to endure that there is a toilet in each school.

Another education scheme brought about by CBSE(Central Board of Secondary Education) to help people from below poverty line to attend school. PRAGATHI is an initiative by the same Ministry to enhance technical education in children.

All the schemes mentioned above have been enacted regarding the education of children.

Saksham is a project initiated to help the differently-abled children to education.
Various other schemes like Atal Mission, Udisha and much ICT(Information and Communication Technologies) enhanced schemes have been rolled out in India.

National Plan of Action for Children includes goals, objectives, strategies and activities for improving the nutritional status of children, reducing Infant Mortality Rate, increasing enrolment ratio, reducing drop out rates, universalisation of primary education and increasing coverage for immunisation.

Other Schemes Include:

  • Balika Samriddhi Yojana (BSY)
  • Kishori Shakti Yojana (KSY)
  • Early Childhood Education for 3-6 Age Group Children Under the Programme of Universalization of Elementary Education
  • Scheme for the welfare of Working Children in Need of Care and Protection
  • An Integrated Programme for Street Children
  • Childline Services
  • Central Adoption Resource Agency (CARA)
  • Rajiv Gandhi National Crèche Scheme for the Children of Working Mothers
  • Programme for Juvenile Justice
  • General Grant-in-Aid Scheme
  • Pilot Project to Combat the Trafficking of Women and Children for Commercial Sexual Exploitation in Destination Areas
  • National Crèche Fund[lix]

All these are not included in the direct legal framework of Child Rights in India, but they are established as a result of some legislations or by some Government Ministry in pursuance of its duties

National Policy for Children, 1974

Underlying the National Charter for Children 2004, is one of the sources for the peace and prosperity of a child and some other policies for the overall development of child include National Policy for Children, 2013 and National Policy on Child Labour in 1987 are two other policies.

International Conventions
The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC or UNCRC) is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The Convention defines a child as any human being under the age of eighteen unless the age of majority is attained earlier under national legislation. [lx]

In India, children cannot be separated from their families, parents and children exist together as an institution, and so the development in child rights and a better childhood for every child can be reached only with sufficient awareness in the family and with the introduction of new schemes and programs.

Apart from the government, authorities and other organisations, the way the society is shaped must also depend on children’s points of view. If the policies come about based on the rational values, norms and customs that they believe in, it is as if their voices were heard for their development. If the present legislation turns out to be insufficient based on the statistical data that comes out, India can perhaps borrow some policies from foreign countries which have records of success.

I wish that India would become a country to impose its punishments and decisions strictly and also more open-minded in ratifying International Conventions and Treaties. Concerning the privacy of children, India should become more stringent in monitoring, enforcing and adjudicating the legislations. It is undeniable that children in India face innumerable problems and child rights violation are have increased manifold since time immemorial, the reason being the unawareness for what rights are available to them and what is not. Apart from the proper enforcement of the Act, that includes the establishment of proper authorities or courts for the same, or any other necessary institution, a right call to provide incentives for the economically backward sections is the need of the hour.

Small scale movements by NGOs like Child Rights and You(CRY), Smile Foundation and Make a Difference(MAD) and proper budget allocation are some other significant steps towards the improvement of child rights in India.

Since each legislation takes time to come into operation, and since some of them require a more comprehensive and detailed laying down of rules, the powers can be delegated to authorities already existing, or which can be newly established. This ensures that there is timely implementation and notification of rules and regulations, and it is a much faster way of going about it without hastiness. Collaborating with other organisations to ensure proper record keeping and tracking ensures that resources are allocated proportionately.

The Media should cover the critical issues of nutrition and recreation and other problems relating to child rights to reach to a broader audience. Coordinating with civil societies and realisation of Corporate Social Responsibility(CSR) is essential to fulfilling the Sustainable Development Goals(SDG). Even though there are legislations in pursuance of protection of the rights of children, something in addition to that(suggestions as mentioned above) need to be brought about for their realisation.


  1. Juvenile Justice (Care and Protection of Children) Act, 2015
  2. School teachers - A focal agents of Child Rights Protection.
  3. Rejani Thudalikunnil Gopalan, Social, Psychological, and Forensic Perspectives on Sexual Abuse (2018).
  4. (2019),
  5. OHCHR | Optional Protocol to the Convention on the Rights of the Child, (2019),
  6. Supreme Court, Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India and others (7 March 2011)., ensure that schools, hospitals and children’s home complexes currently occupied by armed/security forces are vacated and that school buildings and hostels are not allowed to be occupied by the armed or security forces in the future for whatsoever purpose. (2011).
  7. Shweta., Child rights in India (2012).
  8. Children Acts, Child Labour Laws in India - About Child Labour ( Prohibition and Regulation) Act (2019),
  9. Child Labour policies — Vikaspedia, (2019),
  10. Child Marriage Restraints Act, 1 (2019).
  11. Rajnandini Mahajan, Laws On Child Marriage In India (2016),
  12. R/CR.MA/13658/2014
  13. Girls Brides, India - Child Marriage Around The World. Girls Not Brides Girls Not Brides (2019),
  14. Joshua N. Aston, Trafficking of Women and Children: Article 7 of the Rome Statute 1 (Oxford University Press, New Delhi, 2016).
  15. Criminal Law(Amendment)Act, 2013, (2019)
  16. Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 2000.
  17. (2019),
  18. Right To Education, (2019),
  19. Preamble To The Indian Constitution, (2019),
  20. The Constitution of India, (2012).
  21. Article 15 in The Constitution Of India 1949, (2019),
  22. Article 17 in The Constitution Of India 1949, (2019),
  23. Article Liberty, Article 21 of the Constitution of India - Right to Life and Personal Liberty - Academike Academike (2019),
  24. Brainy IAS - Online & Offline Classes, Brainy IAS (2019),
  25. Article 23 in The Constitution Of India 1949, (2019),
  26. Article 24 of Constitution of India and Prevention of Child Labour, GKToday (2019),
  27. Constitution Act & Central Government, Constitution of India Article 39A - Citation 37900 - Bare Act | LegalCrystal (2019)
  29. CHILDLINE India Foundation : Child Protection and rights in India, 1098 Child Support, (2019),
  30. Childrens Rights: India, (2019),
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  32. Constitution of India | HAQ : Centre for Child Rights, HAQ : Centre for Child Rights (2019),
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  34. Right To Education, (2019),
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  36. Pritisha Borah et al., Child marriage.
  37. Yunusbhai Usmanbhai Shaikh v. State of Gujarat, Criminal Misc. Application No. 8290 of 2015
  38. Pritisha Borah et al., Child marriage.
  42. Judgement - Child marriage - Minor - Sexual Intercourse.
  44. The Protection of Children from Sexual Offences Act(2012)
  45. (The Economic Times, 2019)
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  49. AIR 1997 SC 699
  50. 1992 SCR (3) 658
  51. 1990 SCR (2) 861
  52. M.C. Mehta vs State Of Tamil Nadu And Ors, 1990 SCR Supl. (2) 518
  53. Committees/Boards | Ministry of Labour & Employment.
  54. National Commission for Women - Wikipedia.
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  56. National Commission for Women - Day Today GK.
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  61. (2019). United Nations | Shaping our future together,

Written By: TS Sneha, 2nd Semester, The National University of Advanced Legal Studies(NUALS)
Email: [email protected]

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