A Critical Analysis Of Child Related Laws And Offences Against Child-An Indian Perspective
“The ultimate test of a moral society is the kind of world that it leaves to
its children” this quoted by the German theologian Dietrich Bonhoeffer. The soul
is healed by being with children. Children are the future of a country; children
are the assists of the nation. But as we all know that the children are the most
vulnerable. Every child has right to lead a decent life. Child means a person
between birth and puberty. The main aim of the article is, to understand what
are the legislations especially for the protection of child and the offences
against the child. The object of the article is to understand offences against
child and child protection law.
According to Article 1 of the CRC,[2] “Child means every human being below the age of eighteen year unless under the law applicable to the child, majority is attained earlier”
Child Labour (Protection and Regulation) Act,1986
“Child means a person who has not completed his fourteenth year of age. This Act aims at prohibiting the engagement of children in work. Therefore, this Act makes provisions for the persons who have not completed their fourteenth year of age.
S. 2(c) of the Plantation Labour Act, 1951
Child means a person who has not completed his fifteenth year”
S. 25 of the act prohibits the engagement of ‘child' in the plantation work except between the hours 6 am and 7 am and the child not complete the age of 15 years is not allowed to work.
This is the same definition was given in Motor Transport Workers Act, 1961, S. 21 of the act prohibits the employment of a child in motor transport undertaking.
The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 define
“Child means a person who has not completed fourteen years of age. In this act S. 24 Deals with No child is required or allowed to work in any industry premises.
Prohibition of Child Marriage Act, 2006
According to this act a male child means who is not completed the age of 21 years and female is not completed the age of 18 years. S. 3 of the act is a deal with child marriage is voidable at the option of a person who was a child at the time of marriage.
S. 2(d) of the POCSO Act, 2012[3] deals with “Child means any person below the age of eighteen years”
The main object of the act is for the protection of children from sexual offences and harassment.
S. 2(12) The JJ Act[4] defines child means a person who has not completed 18 years o age.
· Child according to S. 2(12) The Juvenile Justice (Care and Protection of Children) Act,
1956 : Hindu Adoption and Maintenance Act
2006- Child Marriage Restraint Act
2009- Right of Children to Free and Compulsory Education Act
2012- Protection of Children From Sexual Offences Act
2015- Juvenile Justice (Care and Protection of Children) Act
Offences Against children/ major child issues
Child Labour[6]
Child labour is the practice of having children engages in economic activity, on part or full time basis. The practice deprives children of their childhood, and in harmful to their physical and mental development. Poverty, lack of education and growth of informal economy are considered as the important causes of child labour in India.
Causes of Child Labour
Primary causes
ILO Suggests poverty is the greatest single cause behind child labour. For impoverished households, income from a child's work is usually crucial for his or her own survival or for that of the household.
Cultural causes
In many cultures, particular where informal economy and small household businesses thrive, the cultural tradition is that children follow in their parents footsteps, and at the same time many cultures the education of girls is less valued and these girls pushed into child labour such as providing domestic services.
Macroeconomic causes
The macroeconomic factors causes encouraged widespread wild spread child labour across the world, over most of human history. This is based on a demand and supply side.
Consequences of child labour
The presence of a large number of child labours is regarded as a serious issue in terms of economic welfare. The child labour leads to illiteracy, commit crime etc…children in hazardous working conditions are even in worse condition. Children who work, instead of going to school, will remain illiterate which limits their ability to contribute to their own well being as well as to community they live in. child labour has long term adverse effects for India.
The major National legislative developments include the following:
The Factories Act, 1948- The act prohibits the employment of children below the age of 14 years in any factory.
The Mines Act, 1952- The act prohibits the employment of children below 18 years of age in a mine.
The Child Labour (Prohibition and Regulation) Act,1986 – The act prohibits the employment of children below the age of 14 years in hazardous occupations identified in a list by the law.
The Juvenile Justice (Care and Protection) of Children Act, 2000 and JJ Act 2015- The law made it a crime, punishable with a prison term, for anyone to procure or employ a child in any hazardous employment or in a bondage.
The Right of Children to Free and Compulsory Education Act,2009-the law mandates free and compulsory education to all children aged 6 to 14 years.[7]
Initiatives against child labour
In 1979, the Indian government formed the Gurupadswamy committee to find about child labour and means to tackle it. The child labour prohibition and regulation act was not enacted on the recommendations of the committee in 1986.a National policy on rehabilitating children working in hazardous occupations.
NGO Schemes[8]
Many NGOs like Bachpan Bachao Andolan, CARE India, child Rights and you, Global march against Child labour, RIDE India etc. have been working to eradicate child labour in India.
Pratham is India's largest non- governmental organization with the mission ‘ every child in school and learning well.'
People union for civil liberties V. UOI[9]
SC observed that it was clear breach of Article 24 of the constitution to employ children below the age of 14 in construction work. The court proceeds to prohibit any kind of violation article 14 in construction work. The court proceed to prohibit any kind of violation of Article 23 and 24 and further laid emphasis on strict observance of Fundamental Rights by private individuals and spoke strongly against any form of forced labour.
Bandhua mukti morcha V. UOI $ ors.[10]
In this case, The employment of children in the carpet manufacturing industry in mirzapur, utter Pradesh. It is instructed the district magistrate to conduct raids, and subsequently got 144 children, who were under the forced custody of the owners, released.
Sheela Barse V. UOI[11]
In this case the supreme court give an direction to release the children's who were being exposed to chemical fumes and coal dust from their employment.
M. C Mehta V. State of Tamil Nadu[12]
The supreme court gave directions to the government to eliminate child labour, which included the conducting surveys and withdrawal of children working from hazardous industries.
Sexual Exploitation
The child sexual abuse also called child molestation, is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. The sexual abuse can occur in a variety of settings, including home, school, or any place.
POCSO Act[13]
To deals with child sexual abuse case, government was enacted asocial law. The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of the child at every stage of the judicial process by incorporating child friendly mechanism for reporting, recording evidence, investigation and speedy trial of offences through designated special courts.
S.7 of the act deals with sexual assault and s. 8 respectfully deals with the punishment for sexual assault.
Child pornography
Child pornography is that exploits children for sexual stimulation and commercial gains. Such exploitation may take many forms.
POCSO Act s.13, 14, 15 are deals with the child pornography and punishment.
53% of girl children in India are victims of sexual exploitation in one form or another. The sex crimes include rape, child molestation, lewd conduct, possession and distribution of child pornography or obscene material, prostitution, solicitation for prostitution, pimping, pandering, indecent exposure, penetration of the genital or anal region by a foreign object and sexual battery etc.
Ghanashyam Mishra V. State[14]
In this case a 10 years old child was raped by 39 years old men and the court held that the person is liable for 7 years of imprisonment and also pay compensation to the father and the child.
Kidnapping
The crime of unlawfully seizing and carrying away a person by force or fraud, or seizing and detaining a person against his or her will called Kidnapping
IPC[15]
S. 359 deals with kidnapping and s. 360 deals kidnapping from India
s. 363 deals with punishment for kidnapping
Ghouse Hj kadeer Mastan V. Rex[16]
Facts:
The girl was from Hanafi School who has attained puberty and had been taken away by the accused and they got married.
Held:
The accused was convicted for kidnapping.
Abduction
Child abduction or child theft is the unauthorized removal of a minor from the custody of the child's natural parents or legally appointed guardians.
Begging
The begging is one of the crime faced by the children's. some of the people used children for begging and it also affect their future.
Adoption
Adoption is a legal process by which a child is placed with a married couple or a female who agree to raise her as a their own child and assume all responsibility for her. The following are the child laws exist in India.
Hindu adoption and maintenance Act of 1956 deals with adoption laws relating Hindus, jain, Sikhs or Buddhist.
Guardian and Wards Act of 1890 deals adoption by foreign citizens, NRIs and Indian nationals who are Muslims, Christians or Jews.
Juvenile Justice Act also deals the law relating adoption of children by non- Hindu Parents.
L. K Pandey V. UOI
The supreme court of India has laid down certain guidelines for foreign adoption in an attempt to safeguard the interests of the children. The first guideline is the applications made under the Guardian and Wards Act, 1890 has to be disposed of within months. And other one is requirement for personal presence of the foreign national.
Constitutional safeguards[17]
The constitutional safeguards discussed in Article 23 and 24 and Article 21A was incorporated right to education is a fundamental right. The state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may, by law, determine.
Art 51A (k) who is 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.
Unnikrishnan V. State of AP [18]
The right to education is a fundamental right and it was incorporated in Art 21 A of the Indian Constitution.
Ashok Kumar Thakur V. UOI [19]
The case is also deals with Child Education. The strict order for compulsory education is passed. The age between 6-14 years must be provide free and compulsory education
Child Marriage
one of the crime faced by the children is earlier marriage child marriage restraint act prohibit the child marriage. The child marriage prevents a child to attend their schools and act as a servant for domestic purpose.
Related Case Laws
Ganesh Ram V. State of Jharkhand and Ors. [20]
A bench of S Mukhopadhya, N Tiwari held “if a person, below 14 years of age, is appointed, penal order can be passed against the employer under the Child Labour (Prohibition and Regulation Act 1986) but no order, penal in nature, be passed against the employee”
Jaya Kumar Nat $ Anr V. State of NCT of Delhi $ Anr [21]
Delhi High Court directs the Government of Delhi to come out with a proper scheme to address the issue of rehabilitation of these rescued the children and provide free and compulsory education.
P.U.D.R V. UOI [22]
In this case Supreme Court directed the state government to amend the schedule of the employment of children Act, 1938. Further court held that construction work is hazardous occupation.
Salal Hydro project V. State of J $ K [23]
In this case the court held that the child labour is a difficult problem and it is purely on account of economic problem and it cannot be solved by mere legislation. So long poverty continues the problem of child labour education is not possible.
Lakshmi Kumar Pandey V. UOI [24]
The court held that, the uniform law of adoption applicable to all communities including the Muslims also.
Sakshi V. UOI [25]
The case of child abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently required the parliament will give serious attention to make laws seriously and child friendly approach also be taken.
Seema Roy V. State NCT of Delhi [26]
The court held that take necessary steps to prevent children in hazardous work place. and make several guidelines.
SUGGESTIONS
CONCLUSION
In the history of human rights, the rights of children are most ratified. The constitution of India provides that the state as a directive principle of state policy, must seek to ensure and protect the child rights. In the present times protection of children from all kinds of exploitation and abuse has become the main objective of our society. This writing deals the child rights and as well as the child laws and crimes against child.
REFERENCE:
Child-Definition [1]
There are several definitions relating to a child.According to Article 1 of the CRC,[2] “Child means every human being below the age of eighteen year unless under the law applicable to the child, majority is attained earlier”
Child Labour (Protection and Regulation) Act,1986
“Child means a person who has not completed his fourteenth year of age. This Act aims at prohibiting the engagement of children in work. Therefore, this Act makes provisions for the persons who have not completed their fourteenth year of age.
S. 2(c) of the Plantation Labour Act, 1951
Child means a person who has not completed his fifteenth year”
S. 25 of the act prohibits the engagement of ‘child' in the plantation work except between the hours 6 am and 7 am and the child not complete the age of 15 years is not allowed to work.
This is the same definition was given in Motor Transport Workers Act, 1961, S. 21 of the act prohibits the employment of a child in motor transport undertaking.
The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 define
“Child means a person who has not completed fourteen years of age. In this act S. 24 Deals with No child is required or allowed to work in any industry premises.
Prohibition of Child Marriage Act, 2006
According to this act a male child means who is not completed the age of 21 years and female is not completed the age of 18 years. S. 3 of the act is a deal with child marriage is voidable at the option of a person who was a child at the time of marriage.
S. 2(d) of the POCSO Act, 2012[3] deals with “Child means any person below the age of eighteen years”
The main object of the act is for the protection of children from sexual offences and harassment.
S. 2(12) The JJ Act[4] defines child means a person who has not completed 18 years o age.
· Child according to S. 2(12) The Juvenile Justice (Care and Protection of Children) Act,
Important Child Protection Laws In India [5]
1948 : Factories Act1956 : Hindu Adoption and Maintenance Act
2006- Child Marriage Restraint Act
2009- Right of Children to Free and Compulsory Education Act
2012- Protection of Children From Sexual Offences Act
2015- Juvenile Justice (Care and Protection of Children) Act
Offences Against children/ major child issues
- Child labour
- Child marriage
- Child trafficking
- Child pornography
- Begging
- Sexual exploitation
- Kidnapping and abduction
Child Labour[6]
Child labour is the practice of having children engages in economic activity, on part or full time basis. The practice deprives children of their childhood, and in harmful to their physical and mental development. Poverty, lack of education and growth of informal economy are considered as the important causes of child labour in India.
Causes of Child Labour
- Primary causes
- Cultural causes
- Macroeconomic causes.
Primary causes
ILO Suggests poverty is the greatest single cause behind child labour. For impoverished households, income from a child's work is usually crucial for his or her own survival or for that of the household.
Cultural causes
In many cultures, particular where informal economy and small household businesses thrive, the cultural tradition is that children follow in their parents footsteps, and at the same time many cultures the education of girls is less valued and these girls pushed into child labour such as providing domestic services.
Macroeconomic causes
The macroeconomic factors causes encouraged widespread wild spread child labour across the world, over most of human history. This is based on a demand and supply side.
Consequences of child labour
The presence of a large number of child labours is regarded as a serious issue in terms of economic welfare. The child labour leads to illiteracy, commit crime etc…children in hazardous working conditions are even in worse condition. Children who work, instead of going to school, will remain illiterate which limits their ability to contribute to their own well being as well as to community they live in. child labour has long term adverse effects for India.
The major National legislative developments include the following:
The Factories Act, 1948- The act prohibits the employment of children below the age of 14 years in any factory.
The Mines Act, 1952- The act prohibits the employment of children below 18 years of age in a mine.
The Child Labour (Prohibition and Regulation) Act,1986 – The act prohibits the employment of children below the age of 14 years in hazardous occupations identified in a list by the law.
The Juvenile Justice (Care and Protection) of Children Act, 2000 and JJ Act 2015- The law made it a crime, punishable with a prison term, for anyone to procure or employ a child in any hazardous employment or in a bondage.
The Right of Children to Free and Compulsory Education Act,2009-the law mandates free and compulsory education to all children aged 6 to 14 years.[7]
Initiatives against child labour
In 1979, the Indian government formed the Gurupadswamy committee to find about child labour and means to tackle it. The child labour prohibition and regulation act was not enacted on the recommendations of the committee in 1986.a National policy on rehabilitating children working in hazardous occupations.
NGO Schemes[8]
Many NGOs like Bachpan Bachao Andolan, CARE India, child Rights and you, Global march against Child labour, RIDE India etc. have been working to eradicate child labour in India.
Pratham is India's largest non- governmental organization with the mission ‘ every child in school and learning well.'
People union for civil liberties V. UOI[9]
SC observed that it was clear breach of Article 24 of the constitution to employ children below the age of 14 in construction work. The court proceeds to prohibit any kind of violation article 14 in construction work. The court proceed to prohibit any kind of violation of Article 23 and 24 and further laid emphasis on strict observance of Fundamental Rights by private individuals and spoke strongly against any form of forced labour.
Bandhua mukti morcha V. UOI $ ors.[10]
In this case, The employment of children in the carpet manufacturing industry in mirzapur, utter Pradesh. It is instructed the district magistrate to conduct raids, and subsequently got 144 children, who were under the forced custody of the owners, released.
Sheela Barse V. UOI[11]
In this case the supreme court give an direction to release the children's who were being exposed to chemical fumes and coal dust from their employment.
M. C Mehta V. State of Tamil Nadu[12]
The supreme court gave directions to the government to eliminate child labour, which included the conducting surveys and withdrawal of children working from hazardous industries.
Sexual Exploitation
The child sexual abuse also called child molestation, is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. The sexual abuse can occur in a variety of settings, including home, school, or any place.
POCSO Act[13]
To deals with child sexual abuse case, government was enacted asocial law. The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of the child at every stage of the judicial process by incorporating child friendly mechanism for reporting, recording evidence, investigation and speedy trial of offences through designated special courts.
S.7 of the act deals with sexual assault and s. 8 respectfully deals with the punishment for sexual assault.
Child pornography
Child pornography is that exploits children for sexual stimulation and commercial gains. Such exploitation may take many forms.
POCSO Act s.13, 14, 15 are deals with the child pornography and punishment.
53% of girl children in India are victims of sexual exploitation in one form or another. The sex crimes include rape, child molestation, lewd conduct, possession and distribution of child pornography or obscene material, prostitution, solicitation for prostitution, pimping, pandering, indecent exposure, penetration of the genital or anal region by a foreign object and sexual battery etc.
Ghanashyam Mishra V. State[14]
In this case a 10 years old child was raped by 39 years old men and the court held that the person is liable for 7 years of imprisonment and also pay compensation to the father and the child.
Kidnapping
The crime of unlawfully seizing and carrying away a person by force or fraud, or seizing and detaining a person against his or her will called Kidnapping
IPC[15]
S. 359 deals with kidnapping and s. 360 deals kidnapping from India
s. 363 deals with punishment for kidnapping
Ghouse Hj kadeer Mastan V. Rex[16]
Facts:
The girl was from Hanafi School who has attained puberty and had been taken away by the accused and they got married.
Held:
The accused was convicted for kidnapping.
Abduction
Child abduction or child theft is the unauthorized removal of a minor from the custody of the child's natural parents or legally appointed guardians.
Begging
The begging is one of the crime faced by the children's. some of the people used children for begging and it also affect their future.
Adoption
Adoption is a legal process by which a child is placed with a married couple or a female who agree to raise her as a their own child and assume all responsibility for her. The following are the child laws exist in India.
Hindu adoption and maintenance Act of 1956 deals with adoption laws relating Hindus, jain, Sikhs or Buddhist.
Guardian and Wards Act of 1890 deals adoption by foreign citizens, NRIs and Indian nationals who are Muslims, Christians or Jews.
Juvenile Justice Act also deals the law relating adoption of children by non- Hindu Parents.
L. K Pandey V. UOI
The supreme court of India has laid down certain guidelines for foreign adoption in an attempt to safeguard the interests of the children. The first guideline is the applications made under the Guardian and Wards Act, 1890 has to be disposed of within months. And other one is requirement for personal presence of the foreign national.
Constitutional safeguards[17]
The constitutional safeguards discussed in Article 23 and 24 and Article 21A was incorporated right to education is a fundamental right. The state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may, by law, determine.
Art 51A (k) who is 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.
Unnikrishnan V. State of AP [18]
The right to education is a fundamental right and it was incorporated in Art 21 A of the Indian Constitution.
Ashok Kumar Thakur V. UOI [19]
The case is also deals with Child Education. The strict order for compulsory education is passed. The age between 6-14 years must be provide free and compulsory education
Child Marriage
one of the crime faced by the children is earlier marriage child marriage restraint act prohibit the child marriage. The child marriage prevents a child to attend their schools and act as a servant for domestic purpose.
Related Case Laws
Ganesh Ram V. State of Jharkhand and Ors. [20]
A bench of S Mukhopadhya, N Tiwari held “if a person, below 14 years of age, is appointed, penal order can be passed against the employer under the Child Labour (Prohibition and Regulation Act 1986) but no order, penal in nature, be passed against the employee”
Jaya Kumar Nat $ Anr V. State of NCT of Delhi $ Anr [21]
Delhi High Court directs the Government of Delhi to come out with a proper scheme to address the issue of rehabilitation of these rescued the children and provide free and compulsory education.
P.U.D.R V. UOI [22]
In this case Supreme Court directed the state government to amend the schedule of the employment of children Act, 1938. Further court held that construction work is hazardous occupation.
Salal Hydro project V. State of J $ K [23]
In this case the court held that the child labour is a difficult problem and it is purely on account of economic problem and it cannot be solved by mere legislation. So long poverty continues the problem of child labour education is not possible.
Lakshmi Kumar Pandey V. UOI [24]
The court held that, the uniform law of adoption applicable to all communities including the Muslims also.
Sakshi V. UOI [25]
The case of child abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently required the parliament will give serious attention to make laws seriously and child friendly approach also be taken.
Seema Roy V. State NCT of Delhi [26]
The court held that take necessary steps to prevent children in hazardous work place. and make several guidelines.
SUGGESTIONS
- There is a need to increase the punishment for offences against child.
- Child related offence are increases day by day so effective controlling mechanism needed
- There is a need for implement several child protection measures.
CONCLUSION
In the history of human rights, the rights of children are most ratified. The constitution of India provides that the state as a directive principle of state policy, must seek to ensure and protect the child rights. In the present times protection of children from all kinds of exploitation and abuse has become the main objective of our society. This writing deals the child rights and as well as the child laws and crimes against child.
REFERENCE:
- https//en.m.wikipedia.org/wiki/child
- Convention on rights of child
- Protection of offences from sexual offences Act, 2012
- Juvenile justice (care and protection of children ) Act,2015
- https://www.cry.org/child-rights
- https://www.ilo.org/ipec/facts/lang-en/index.htm
- supra
- https://www.legalserviceindia.com
- People union for civil liberties V. UOI,(2002) SCR 294
- Bandhua mukti morcha V. UOI $ ors. AIR 802,1984 SCR(2) 67
- Sheela Barse V. UOI,JT1986,scale 92) 230
- M. C Mehta V. State of Tamil Nadu 1987SCR(1) 819 AIR 1989
- Protection of children from sexual offences Act,2012
- Ganesh Ram V. State of Jharkhand and Ors,2006 (2) JCR 489
- Indian Penal Code, 1860
- Ghouse Hj kadeer Mastan V. Rex,1949 CriLJ 535
- Indian constitution,1949
- Unnikrishnan V. State of AP,1993 AIR 217SCR (1) 47
- Ashok Kumar Thakur V. UOI $ ors (2008)
- Jaya Kumar Nat $ Anr V. State of NCT of Delhi $ Anr 2015
- Ganesh Ram V. State of Jharkhand and Ors.
- P.U.D.R V. UOI,1984 SCR (1) 456
- Salal Hydro project V. State of J $ K,(1984) 3 SCC538
- Lakshmi Kumar Pandey V. UOI,1984 AIR 469
- Sakshi V. UOI,1994 Crlj 5025
- Seema Roy V. State NCT of Delhi, W. P (CRL)1548 of 2015
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