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ASSIGNMENT ON

HUMAN RIGHTS IN INDIAN CONSTITUTION

SPECIAL PROTECTION TO CHILDREN

SUBJECT: - HUMAN RIGHTS

SUBMITED TO: SUBMITTED BY:

DR. MEENA KETAN SAHU CHANDRA SEKHAR MISHRA

ASSOCIATE PROFESSOR (HEAD) 2nd SEMESTER

POST GRADUATION

(DEPARTMENT OF LAW)

SAMBALPUR UNIVERSITY JYOTI VIHAR, BURLA

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TABLE OF CONTENTS

1. INTRODUCTION

2. CURRENT STATUS OF CHILDREN IN INDIA

3. CONSTITUTIONAL PROVISIONS WHICH PROTECT THE RIGHTS OF

CHILDREN IN INDIA

4. LAWS WHICH BIND THE PROTECTION OF THE CHILD IN INDIA

5. CASE LAWS

6. CONCLUSION

7. BIBILIOGRAPHY

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INTRODUCTION
“Children do not constitute anyone’s property: they are neither the property of their parents
nor even the society. They belongs only to their own freedom.”

As minors, by law children do not have any power to make decisions on their own. Instead, these
decisions are made by their parents, caretakers, social workers, teachers, youth workers and others
are instilled with such authority. It is generally believed that the state gives insufficient control
over their own lives and makes them vulnerable. A stirring view in most cultures is that younger
the children the more they are vulnerable both psychologically and physically. Most of the
activities of children are regulated by the age limit of the children- in which they leave to school,
In which age they can marry, in which age they are considered as adults as per the criminal justice
system, in which age they can work, in which age they can work, in which age they can join the
armed forces, etc. But the age limit differs from activity to activity and country to country. In the
Constitution on India and Child Labor (Prohibition and Regulation) Act 1986, a ‘child’ is defined
as a person below 14 years of age. The recently amended Juvenile Justice Act 2015 children (16-
18 years) may be treated as adults if they commit heinous crimes like rape, acid attack, murder etc.
The Constitution makers were aware of the fact that children are the promises of the nation, the
future of India was in the hands of children. They were concerned about making provision for the
protection of the children. By protection, they meant protection of mind, protection of the body,
protection of dignity, protection of their rights…etc. The Constitution had laid down many
provisions which dealt with the lives of the children. In order to strengthen the provisions in the
constitution, there has been the introduction of many legislations, policies, schemes etc.1

CURRENT STATUS OF CHILDREN IN INDIA

As per an article published on Business Standard, the Praja Foundation report established that
even if there was a decline in crimes against children in Delhi, the trial of 99% of cases under the
POCSO Act was still pending. The report also brought attention to the fact that the POCSO Act
was enacted keeping in mind the sole purpose of providing speedy justice to minors.

The following are the key takes from the report:

• Around 42% of the total rape cases were committed against children below 18 years in
2020, as compared to 45% and 47% in 2019 and 2018 respectively.

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• The highest number of rape victims were in the age group of 12 to 18 years (620 out of
721 in 2020).
• In 95% of the rape cases, the offenders were known to the victims (686 out of 721
cases).
• Out of 67% of cases under the POCSO Act, 93% were unnatural offences.
• Out of 3,32,274 IPC cases that were to be tried in the Delhi courts, the trial of 92% of
cases was pending as of December 2020. This reflected an overburden on the judiciary
leading to the delayed justice for victims.
• In 2020, the judgments for only 56 cases were given, thus portraying the inefficacy in
following the provisions of the said Act.

As per another article published on NDTV, a new study was carried out by the Kailash Satyarthi
Children’s Foundation (KSCF) which analysed the status of disposal of cases registered under the
POCSO Act. It is based on the data and information published by the National Crime Records
Bureau (NCRB). 2

The following are the key takes from the report:

• Every year, as many as 3,000 POCSO cases which were registered and investigated
were unsuccessful in reaching the court for a fair trial.
• Four child victims of sexual abuse are denied justice every day due to the closing of the
cases by police because of the inadequate proof or lack of proper clue.
• In 2019, 43% of cases were closed by police on the grounds of inadequate proof or lack
of clue, as per the final reports filed in the court.
• From the NCRB data, a majority (two-fifths) of POCSO cases were disposed off/closed
by the police without charge-sheeting. The reason behind this was stated that the cases
were true, but they lacked the evidence or were untraceable.
• The study found that 51% of POCSO-based cases were registered in Madhya Pradesh,
Maharashtra, Uttar Pradesh, Haryana, and Delhi.

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The study also states that the courts are in dire need of advancing the justice delivery
•
mechanism, as up to 89% of victims of child sexual abuse were awaiting justice by the
end of 2019.
As per another article published by the Free Press Journal, the one-year timeframe for POCSO
cases under Section 35 of the POCSO Act is only on paper. Also, even if there are special courts
designed under this Act, an average of about three years for the cases to conclude, which may
extend to four or six years, was estimated. as per the Prosecutors, the delay was due to the
overburdened courts, given the fact that many POCSO cases were being filed.

Last but not the least, an article published on DNA in 2018 opinionated that India would take 20
years to clear the backlog of 2016 POCSO cases. This statement was given by Nobel Peace
Laureate and child rights activist Kailash Satyarthi. 3

CONSTITUTIONAL PROVISIONS WHICH PROTECT THE RIGHTS OF

CHILDREN IN INDIA

The constitution ensures the rights and protection of children through its various provisions.
Children on the account of their sensitive age and immature age need special care and protection.
They have specific rights and legal entitlements that are being recognized nationally and
internationally. The constitution has recognized the rights of children to a great extent and included
many articles dealing with the compulsory and free education, liberty and development in
childhood, non-discrimination in educational spheres and prohibition of their employment in
factories, mines and hazardous conditions.

1.Right to equality

Article 14 of the Constitution of India states that every person is equal before the law and has equal
protection of the laws. Thus, this right is applicable to children of India, as well, because, they too,
are the citizens of this nation.

2.Right against discrimination

Article 15 of the Constitution talks about the prohibition of discrimination based on race, caste,
etc. Under Article 15(1), no citizen shall be discriminated against based on his religion, race, caste,

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sex, place of birth or any of them. Further, Article 15(3) states that the State shall not be prevented
from making any special provisions for women and children.

3.Right to freedom of expression

Article 19(1)(a) has conferred a right to freedom of speech and expression to each and every citizen
of India. This right is applicable to everyone, including the children of India. Children have
the liberty of expression as long as their opinions and knowledge do not harm others.

4.Right to life

According to Article 21 of the Constitution of India, every person has the right to life, liberty and
security. It also states that no individual must be deprived of his life or personal liberty unless
according to procedure established by law. Similarly, every child in India has the right to personal
liberty and due process of law.

5.Right to health

Under Article 21 of the Constitution of India, although indirectly, every child has the right to lead
a healthy life. Issues like HIV infections, lack of safe drinking water, adequate sanitation,
malnutrition, inter alia, come under the protection of life.

6.Right to education

Under Article 21A of the Constitution of India, every child in the age group of 6-14 has the right
to free and compulsory elementary education. Moreover, Article 45 states that the State shall strive
to provide early childhood care and education for all children under the age of six years.

7.Right to being protected from trafficking and forced into labour

Article 23 of the Constitution of India states that every person (including children) has the right to
be protected from trafficking, begging and other similar forms of bonded labour.4

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8.Right to be protected from hazardous employment

Under Article 24 of the Constitution of India, every child below the age of 14 has the right to be
protected from employment in factories or mines or be engaged in any other precarious
employment conditions.

9.Right to be protected against abuse

Article 39(e) of the Constitution of India states that the health and strength of workers and the
young age of children are not violated, and that, there is a right to be protected from being abused
and not forced by economic necessity to enter avocations or minor occupations that do not suit
their age or energy.

10.Right to equal opportunities and facilities

Article 39(f) of the Constitution of India states that children must be provided with just
opportunities and facilities to progress in a healthy way and conditions of liberty and dignity. Also,
children and youngsters are given protection against ill-treatment and moral and material
abandonment.

11.Rights against social injustice and all forms of exploitation

Article 46 of the Constitution discusses the rights of the weaker sections of the society and that
they should be safeguarded from social injustice and all forms of exploitation.

12.Right to Identity

Another important factor for child rights is their right to identity and registration. Only 41% of
births in India are registered. Having an identity is a fundamental human right that gives an
individual the liberty to enjoy all of their other rights. Identity consists of a family name, surname,
date of birth, gender and nationality of the individual. By identification of such identities, an
individual will hold rights and obligations specific to their status (woman, man, child, etc). 5

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LAWS WHICH BIND THE PROTECTION OF THE CHILD IN INDIA

INDIAN PENAL CODE 1860

According to Section 82 of the Indian Penal Code, nothing is an offence which is an offence done
by a child under the age of seven years and Section 83 states that, nothing is an offence which is
done by a child above seven years of age and under twelve. As in this age, the children will not
attain the maturity to distinguish between what is right and what is wrong. The child will not be
aware of the consequences of his/her conduct. He is incapable of understanding good and bad,
which means he/she is totally Dole incapax.6

Section 305 of the Indian Penal Code states the Abetment of Suicide if any person under the age
of eighteen years of age commits suicide and whoever abets them to does such an act shall be
punished under the punishments under the act.

Section 315 refers to Infanticide in the Indian Penal Code which comes in the category of crimes
against children. This Section of the Indian Penal Code provides punishment for the act of killing
an infant. Here, Section 316 of the Indian Penal Code states Foeticide, whoever does the act of
causing death of quick unborn child by act amounting to culpable homicide

Section 317 states the exposure and Abandonment of a child under twelve years, by parent or
person having care of it. The exposure and abandonment by a father or mother of a child under the
age of 12 will be punished for the same.

Section 369 of the Indian penal code states the punishment of kidnapping a child under the age of
ten with an intention to steal from its person.

Section 366A of the Indian Penal Code states the punishment for the Procreation of minor girls
(for inducement to force or seduce, to illicit intercourse). This section provides the action against
the said crime to ensure the protection of the girl child in India.

Section 372 and 373 states the punishment for buying, selling or attain the possession of a person
under the age of eighteen at any age employed or used for the purpose of prostitution or illicit
intercourse with any person or for any unlawful purpose.

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PROHIBITION OF CHILD MARRIAGE ACT 2006

The Government of India introduced the Prohibition of Child Marriage Act 2006 after the repeat
of the Child Marriage Restraint Act. The main aim of this Act is to prevent child marriage. This
Act ensures that child marriage is completely eradicated from society. A child according to this
Act is female who has not attained the age of eighteen and a male who has not attained the age of
twenty-one.7

APPRENTICES ACT 1961

The main purpose of this Act was to prohibit the apprenticeship or training of children under the
age of 14 years and for other minors there require a contract between the employer and the
guardian. A person is qualified to be engaged in apprentice if he is not less than fourteen years and
satisfies such standard of education and physical fitness.

JUVENILE JUSTICE ACT (2015)

This Law, brought in compliance of the Child Rights Convention repealed the earlier Juvenile
Justice Act of 1986. This Act was further amended in 2006 and 2010. This Act was again repealed
in 2015, This Act provides a special approach to the protection, treatment and development of
children, this law mentions how a child should be protected in a home, without a home, begging
etc…Under section 15 of this Act special provision had been made to tackle child offenders
committing heinous offences under the age group of 16-18 years. The way in which a child should
be protected from all the external threats.

THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT 1986

This prohibits the engagement of children in certain employment which is hazardous to the child
who can affect the child mentally and physically. It regulates the conditions of work of children in
other employment.

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THE HINDU ADOPTION AND MAINTENANCE ACT 1956

This Act generally dealt with the provisions for a Hindu adult to adopt a child and the Hindu law
of maintenance to wives, parents and children.

PROBATION OF OFFENDERS ACT 1958

This law lays down the restrictions on the imprisonment of offenders fewer than twenty-one years
of age. This Act is in order to prevent the conversion of young offenders to obstinate
criminals. Since there are chances for their transformation when they are subjected to jails along
with criminals.8

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT 2012

The POCSO Act, 2012 is a law to provide for the protection of children from the offences of sexual
assault, sexual harassment and pornography while safeguarding the interest of children in every
stage of the judicial process by incorporating child-friendly mechanisms. The Act provides for
Special courts that conduct the trial in-camera and without revealing the identity of the child.

INFORMATION TECHNOLOGY ACT, 2000

The Information (IT) Act, 2000 contains sufficient provisions for combating the prevailing cyber
crimes. In particular, Section 67B of the Act specifically provides for strict penalties for
publishing, browsing or transmitting child pornography electronically.

In addition, Section 79 of the IT Act and the Information Technology (Intermediary Guidelines)
Rules, 2000 require that the intermediaries shall observe due diligence while discharging duties
and shall inform the users of computers resources to act accordingly.

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CASE LAWS

Thresiamma Varkey’s v. State of Kerala (2017)

In this case, the question at hand was ‘Whether an offence committed before the commencement
of any Act be tried in which court?’ Thus, it was concluded that the court where the case is being
tried does not have the jurisdiction to try such an offence. Therefore, the case was redirected to be
transferred to the Judicial Magistrate of First Class (JMFC) for trial.

Ramkirat Munilal Goud v. the State Of Maharashtra And Anr., 2021

In this case, the Division Bench awarded a death sentence to a 30-year-old man who was accused
of committing an egregious crime of sexually assaulting a 3-year-old child and then murdering her
brutally.

Kishan Pattnayak v. State of Orissa

Poor people were forced to sell children to buy food. The Orissa government was compelled to
take several welfare actions. The petitioner wrote a letter to the Supreme court of India bringing
to the court’s notice the extreme poverty of the Kalahandi in Orissa where hundreds of people
were dying due to starvation as a result they were forced to sell their children. This case has taken
the issue of the lack of food and poverty. In this judgment, the Supreme Court took significant
steps in implementing irrigation projects in order to reduce drought and certain measures were
taken in order to ensure fair selling prices.

Unnikrishnan J.P &Ors v. State of Andhra Pradesh

The court held that the right to education is implicit in the right to life. The Judgment on this case
expanded the Right to education being enshrined to Right to Life. In 2002, by the 86th Amendment
of the Constitution inserted Right to Education within Right to life.

M.C Mehta v. State of Tamil Nadu

The judgment passed states the direction to prohibit child labour in hazardous conditions; the
petitioner was concerned about the high rate of child labour in hazardous conditions in the Match
factories of Savakis in Kamraj district of Tamil Nadu. The judgment gave out the visions of the

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constitution and also linked between child labours with poverty, the judgment also stated that there
has been no proper eradication of child labour by the state,9

Sanjay Suri v. Delhi administration

The court laid down orders to transfer some guilty officers and laid down the rules to protect
children in jails. Juvenile undertrials were the subject of Sanjay Suri’s petition. Many children
were sent to jail despite the prohibition in the children’s Act. The Juvenile were kept together with
habitual and other adults where they were brutalized and made to do undesirable tasks,

Gaurav Jain v. Union of India

The Supreme Court held that segregating the children of prostitutes would not be in their interest.
The Supreme Court held that the children of the prostitute have the right to equality of opportunity,
dignity, care and protection and recapitalized so as to be a part of the mainstream of social life
without any pre-stigma attached on them.

Vishal Jeet v. Union of India

Several directions were issued to end the sexual exploitation of children. The court issued
directions to the state government to set up rehabilitation homes for the children found begging in
the streets and also minor girls pushed into ‘flesh trade’ to protective homes.

Sheela Barse v. the Secretary Children’s Aid Society & Ors

The petition was filed in public interest with regard to improper functioning of childcare institution
in Mumbai, The Supreme Court directed that in no case should a child kept in jail and a central
law must be enacted to bring uniformity in the juvenile justice system.

CONCLUSION

There is an age-old Bible saying “Children are a gift from the Lord; they are a reward from him”,
but with the aforementioned horrendous instances the saying enters into a realm of
absurdity. Every child deserves to be treated fairly, equally and with utmost dignity, irrespective

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of all their differences. They are entitled to all the basic rights, no matter what race, colour, caste,
creed, language, ethnicity or gender they belong to.

The nation, the government, the citizens of the country, must stand united and raise their voice
against any atrocities a child goes through. It is important that the suffering of children throughout
the country be ended, and they should be given a healthy, happy and safe environment that nurtures
them physically, mentally and emotionally, only then, will the future of the nation be in safe
hands. 10

BIBLIOGRAPHY

https://blog.ipleaders.in/rights-of-a-child-in-india-a-comprehensive-guide/

https://blog.ipleaders.in/legal-framework-protection-child-rights/

https://vikaspedia.in/education/child-rights/understanding-child-rights

https://www.legalserviceindia.com/legal/article-11-protection-of-childrens-human-rights-in-
india.html

https://www.unicef.org/child-rights-convention/convention-text

https://www.smilefoundationindia.org/child-rights/

https://en.wikipedia.org/wiki/Children%27s_rights

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