CHAPTER - 1

Introduction
All human beings both adults and children have the right to enjoy their right
and freedom granted to them because they are human. Right of human
being is based on increasing demand for a civilized society.

Each child is having the right to protection from all from violence. Children
as human being are entitled to enjoy all the rights guaranteed by various
international human rights teaches that developed form the Universal
Declaration of Human Rights. Violence against children is common. A child
seriously injured by his parents. Child is used domestic worker or worked in
a factory.

Child defines under Article 1 of the International Convention on the Rights

of Child, 1989 that every human being below the age of 18 years is a child
unless under the law applicable to the child majority is attained earlier.
Article 23 of our constitution does not mention who a child is but prohibited
the employment of a child below the age of 14 and further mandates the
state to provide free and compulsory education up to 14 years. The first
Indian law defining child prescribed prohibitory regulation of employment of
children below seven years of age. Later the amended Factories Act, 1922
the minimum age of child to 12 years. Child below 12 years of age only
prohibited from being employment. Subsequently the Factories Act, 1934
raised the minimum age from 12 years to 13 years. The present Factories
Act , 1948 prescribes prohibited regulation for employment of children who
have not reached 14 years of age .the act define a child as a person who
has not completed 15 years of age and adolescent as one aged between
15 and 18. The Mines Act ,1951 define a child as a person with has not
completed the age of 15.

The shops and commercial establishment act prescribe different age limits
in different state from 12-14 years. The Beedi and Cigar Workers Condition
of Employment Act, 1966 prohibits employment of children below 14 years
in any industrial premises. The Child Labour (Prohibition and Regulation)

1
Act, 1986 and The Apprentices Act, 1961 treats a person up to the age of
14 years as a child. This act has made necessary amendments in other
acts to bring uniformity in age.

Children in confict with law are juveniles who have allegedly committed a
crime under the Indian Penal Code. The integrated child protection scheme
also recognises a third category of children; Child in contact with law.
These children are victims of or witnesses to crimes. Integrated child
protection scheme lastly outlines that vulnerable children groups also
include but are not limited to the following: "children of potentially
vulnerable families and families at risk, children of socially excluded groups
like migrant families, families living in extreme poverty, scheduled castes,
scheduled tribes and other backward classes, families subjected to or
affected by discrimination, minorities, children infected and/or affected by
HIV/AIDS, orphans, child drug abusers, children of substance abusers,
child beggars, trafficked or sexually exploited children, children of
prisoners, and street and working children."

United Nation International Children Emergency Fund views vulnerable

children as those who are abused, exploited, and neglected. Child
protection is derived out of the duty to respond to the needs of vulnerable
groups of children. United Nation International Children Emergency
Fund outlines the following groups as vulnerable Children subjected to
violence, Children in the midst of armed conflict, Children associated with
armed groups, Children affected by HIV/AIDS, Children without birth
registration, Children engaged in labour, Child engaged in marriage,
Children in Conflict with the Law, Children without Parental Care, Children
used for commercial sexual exploitation, Female children subjected to
genital mutilation / cutting, and Trafficked children.

Vulnerability of children leads to and is further created by the socio-cultural,

socio political and socio-religious situations they are in. A child who is
forced or born into a situation or discriminated group is at risk for abuse,
neglect and exploitation. The lack of a protection system either due to mis-
implementation of national laws and programmes or the absence of

2
protection policies and legislation also renders children vulnerable.
Following is a discussion of various protection issues concerning children.

1. Abuse and Violence

2. Child Sexual Abuse

3. Street Children

4. Children Living with AID

5. Child in Armed Conflict

6. Girl Child

7. Child Marriage

8. Children with Disabilities

9. Children affected by Substance Abuse

10. Birth Registration

11. Missing Children

12. Children in Conflict with Law

13. Child Labour

14. Child Trafficking

15. Children without Parental care

16. Child Health and Nutrition

17. Early Childhood (Children below six)

18. Children of Schedule Caste and Schedule Tribe Families

19. Children in Poverty

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What are Child Rights?

A right is as an agreement or contract established between the persons

who hold a right .Defining what age a person is or ceases to be a child is a
constant debate in the India. The Census of India considers children to be
any person below the age of 14, as do most government programmes.
Childhood is the stage between infancy and adulthood. According to
the United Nation Convention on the Rights of the Child. 'A child means
every human being below the age of eighteen years unless, under the law
applicable to the child, majority is attained earlier'. This definition of child
allows for individual countries to determine according to the own discretion
the age limits of a child in their own laws. But in India various laws related
to children define children in different age limits.

The Indian Penal Code, 1860 finds that no child below the age of seven
may be held criminally responsible for an action under Sec 82 IPC. In case
of mental disability or inability to understand the consequences of one's
actions the criminal responsibility age is raised to twelve years under Sec
83 IPC. A girl must be of at least sixteen years in order to give sexual
consent, unless she is married, in which case the prescribed age is no less
that fifteen. With regard to protection against kidnapping, abduction and
related offenses the given age is sixteen for boys and eighteen for girls.

According to Article 21 (A) of the Indian Constitution all children between

the ages of six to fourteen should be provided with free and compulsory
education. Article 45 states that the state should provide early childhood
care and education to all children below the age of six. Lastly Article 51-A
(k) states the parents/guardians of the children between the ages of six and
fourteen should provide them with opportunities for education.

The Child Labour (Prohibition and Regulation) Act, 1986 defines a child as
a person who has not completed fourteen years of age. The Factories Act,
1948 and Plantation Labour Act, 1951 states that a child is one that has not
completed fifteen years of age and an adolescent is one who has
completed fifteen years of age but has not completed eighteen years of
age. According to the Factories Act adolescents are allowed to work in

4
factories as long as they are deemed medically fit but May not for more
than four and half hours a day. The Motor Transport Workers Act 1961, and
The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 both
define a child as a person who has not completed fourteen years of age.
The Merchant Shipping Act, 1958 and Apprentices Act, 1961 don't define a
child, but in provisions of the act state that a child below fourteen is not
permitted to work in occupations of the act. The Mines Act, 1952 is the only
labour related act that defines adult as person who has completed eighteen
years of age (hence a child is a person who has not completed eighteen
years of age).

The Prohibition of Child Marriage Act, 2006 states that a male has not
reached majority until he is twenty-one years of age and a female has not
reached majority until she is eighteen years of age. The Indian Majority Act,
1875 was enacted to create a blanket definition of a minor for such acts as
the Guardians and Wards Act, 1890. Under the Indian Majority Act, 1875 a
person has not attainted majority until he or she is of eighteen years of age.
This definition of a minor also stands for both the Hindu Minority and
Guardianship Act, 1956 and the Hindu Adoption and Maintenanc Act, 1956
Muslim, Christian and Zoroastrian personal law also upholds eighteen as
the age of majority. The first Juvenile Justice Act, 1986 defined a boy child
as below sixteen years of age and a girl child as below eighteen years of
age. The Juvenile Justice (Care and Protection of Children) Act ,2000 has
changed the definition of child to any person who has not completed
eighteen years of age.

Universally child rights are defined by the United Nations and United
Nations Convention on the Rights of the Child .According to the united
Child Rights are minimum entitlements and freedoms that should be
afforded to all persons below the age of 18 regardless of race, colour,
gender, language, religion, opinions, origins, wealth, birth status or ability
and therefore apply to all people everywhere. The United Nation finds
these rights interdependent and indivisible, meaning that a right cannot be
fulfilled at the expense of another right.

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The purpose of the united nation convention on the rights of the child is to
outline the basic human rights that should be afforded to children. There
are four broad classifications of these rights. These four categories cover
all civil, political, social, economic and cultural rights of every child.These
rights are:

Right to Survival: This right includes the right to life, the highest attainable
standard of health, nutrition and adequate standards of living. It also
includes the right to a name and a nationality.

Right to Protection: This included freedom from all form of exploitation,

abuse, inhuman or degrading treatment and neglect, including the right to
special protection in situations of emergency and armed conflicts.

Right to Participation: It includes respect for the views of the child, freedom
of expression, access to appropriate information and freedom of thought,
conscience and religion.

Right to Development: It contains the right to education, support for early

childhood development and care, social security, and the right to leisure,
recreation and culture activities.

What is Child Protection?

United Nation International Children Emergency Fund considers child

protection as the prevention of or responding to the incidence of abuse,
exploitation, violence and neglect of children. This includes commercial
sexual exploitation, trafficking, child labour and harmful traditional
practices, such as female genital mutilation/cutting and child marriage.
Protection also allows children to have access to their other rights of
survival, development, growth and participation. United Nation International
Children Emergency Fund maintains that when child protection fails or is
absent children have a higher risk of death, poor physical and mental
health, HIV/AIDS infection, educational problems, displacement,
homelessness, vagrancy and poor parenting skills later in life.

According to the Integrated Child Protection Scheme Child Protection is

about keeping children safe from a risk or perceived risk to their lives or

6
childhood. It is about recognizing that children are vulnerable and hence
reducing their vulnerability by protecting them from harm and harmful
situations. Child protection is about ensuring that children have a security
net to depend on, and if they happen to fall through the holes in the system,
the system has the responsibility to provide the child with the necessary
care and rehabilitation to bring them back into the safety net.

It is important to understand the difference between these two concepts.

Child rights are a set of principles or ideals. They are entitlements and
some of them are justifiable in a court of law, but they are not tangible.
Protection is one of these rights. But Child Protection is more than a right. It
is a framework or system by which the rights of a child can come to be. The
framework consists of various duty bearers such as the departments of the
government, police, school, civil society, who all have roles to play to
ensure that a child's rights are met, and in the case that a child's rights are
violated that the violator be brought to justice and care be provided to the
child. Child protection is not only treatment, but should also be preventive.
Risk management needs to take place to reduce the risk of violation of
child rights in any given circumstance or space.

Child protection is hence the means through which all other rights of a child
can be upheld. For example a child has a right to live a normal childhood in
a family environment. The child protection framework need to first take
steps to ensure families are able to survive by providing them when health,
education, and food for free or at minimal cost. The next step is to address
the needs of children who have fallen through the cracks such as destitute,
abandoned, and orphan children. The framework includes the mechanisms
to relocate these children into caring families either through adoption or
foster care and provide these children with access to health and education
services. Hence the framework is not a single ministry or single
government body it is the interlinking functions of all ministries and sectors.

United Nation International Children Emergency Fund defines a Child

protection system as:
The set of laws, policies, regulations and services needed across all social
sectors especially social welfare, education, health, security and justice to

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support prevention and response to protection related risks. These systems
are part of social protection, and extend beyond it. At the level of
prevention, their aim includes supporting and strengthening families to
reduce social exclusion, and to lower the risk of separation, violence and
exploitation. Responsibilities are often spread across government
agencies, with services delivered by local authorities, non-State providers,
and community groups, making coordination between sectors and levels,
including routine referral systems, a necessary component of effective child
protection systems.
Due to economical reasons, especially in poor countries, children are
forced to work in order to survive. Child labour often happens in difficult
conditions, which are dangerous and impair the education of the future
citizens and increase vulnerability to adults. It is hard to know exactly the
age and number of children who work. But the figure is underestimated
because domestic labour is not counted.
In some countries, children can be imprisoned for common crimes. In some
countries, like Iran or China, criminals can even be sentenced to capital
punishment for crimes committed while they were children. Military use of
children is made; they also risk being prisoners of war. Other children are
forced to prostitution, exploited by adults for illegal traffic in children or
endangered by poverty and hunger. Infanticide today continues at a much
higher rate in areas of extremely high poverty and overpopulation, such as
parts of China and India. Female infants, then and even now, are
particularly vulnerable, a factor in sex-selective infanticide.

Child abuse

Most children who come to the attention of the child welfare system do so
because of any of the following situations, which are often collectively
termed child abuse. Abuse means abuse of power, exercising a power for a
purpose not intended. This includes willful neglect; knowingly not exercising
a power for the purpose it was intended. This is why child abuse is defined
as taking advantage of a position of trust having been invested with powers

Physical abuse is physical assault or battery on the child. An assault has

some adverse consequence that the victim did not agree to the difference
between surgery and stabbing the victim agrees to the consequences of
battery but the agreement is fraudulent in some way e.g. unnecessary

8
surgery under false pretences. Physical abuse also harassment, a physical
presence intended to provoke fear.

Child sexual abuse is sexual assault or battery on the child. The vast
majority of physical assaults are a reaction to a situation involving a specific
victim. Sexual assault is predominantly perpetrator gratification against any
suitable target. Sexual abuse covers the range of direct and indirect
assaults and the means of facilitation such as stalking and internet
offences.

Neglect, including failure to take adequate measures to safeguard a child

from harm, and gross negligence in providing for a child's basic needs.
Needs are the actions to be taken to protect and provide for the child.
Safeguarding is the duty of a person given the powers of responsibility for
the child to take the necessary measures to protect the child. If a child is
physically or sexually abused then there is an abusive person responsible
for the assault and a negligent person responsible for failing to protect from
the assault. In some cases they may be the same.

Psychological abuse, when meeting the child's needs by taking the

necessary steps to protect and provide for the child the child's wishes and
feelings must be considered when deciding on delivery of the provision that
best serves the child's needs. Willfully failing to provide in accordance with
the child's wishes and feelings, whilst it is in his/her best interests is
emotional abuse or negligently is emotional neglect.

Child maltreatment

Services are provided by bodies corporate or legal personalities. Parental

responsibility gives parents and businesses that make provision to children
and families equivalent legal entities. This includes public bodies and public
bodies that regulate private bodies. This has been described as the
partnership between state and family
A position held in a body corporate places a person in a position of trust.
Child maltreatment is the neglectful or abusive exercise of power in a
position of trust by either business in delivery of the products that best
serve the child's needs for the parents to provide for the child or by the
parents in providing for the child with those products.

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Child protection systems listed the following categories of children needing
help

1. Child victims of sexual abuse/exploitation

2. Child victims of neglect or abuse

3. Child victims of trafficking

4. Children with disabilities

5. Children in a situation of migration

6. Unaccompanied children in a situation of migration

7. Children without parental care/in alternative care

8. Children in police custody or detention

9. Street children

10. Children of parents in prison or custody

11. Children in judicial proceedings

12. Children in or at risk of poverty

13. Missing children (e.g. runaways, abducted children, unaccompanied

children going missing)

14. Children affected by custody disputes, including parental child

abduction

15. Children left behind by parents who move to another country for
work

16. Children belonging to minority ethnic groups, e.g. Roma

17. Child victims of female genital mutilation or forced marriage

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Children are the future of a country. They bring the development &
prosperity to the country but as well as know that the children are the most
vulnerable part of the society & can be easily target in india eve have
enacted many laws & acts related to children in order to protect them & to
give them a healthy growth.

Vulnerability of children to exploitation gained international attention and

paring various instruments to protect the right of children.

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CHAPTER - 2
International Scenario
Whose rights are affected by negligence and other conditions in every
Society. In many societies in the world especially in the developing world
from tender age their rights are abused for a variety of reasons. A child has
a number of basic rights, protection and prevention illegal right to
nourishment, adequate nutrition food, basic health care, love and affection
of family, society, not to abuse the tender age, recreation to basic.
Education, right to development, right to indentify, community and social life
etc.

The beginning of the movement for the rights of the child can be traced
back to the mid-nineteenth century with publication of article in June 1852
by slagvolk, titled The Rights of the Children, followed by Kate Kliggins,
children rights in 1892. With the attention gradually shifting to the working
conditions of children, the legal position of children in England began to
change with the introduction of factory laws which concentrated on the
amelioration of the working conditions of employees especially children.

The first impression of international concern over the situation of children

came in 1923 when the Council of the newly established non-
governmental organization Save the Children International Union adopted a
five- points declaration on the rights of the child. This Geneva Declaration
was endorsed the following years, 1924 by the fifth Assembly of the
League of Nations. In 1948, the General Assembly of the United Nations
approved an expanded version of that and in 1959, went on to adopt a new
declaration for child welfare and protection. The Convention on the Rights
of the Child, 1989 the culmination of the efforts to bring the international
community to recognize the needs of children.

2.1 - Universal Declaration of Human Right, 1948

The Universal Declarations of Human Rights contain two articles that
specifically refer to children Art 25, 26.

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Declaration of the Rights of the Child, 1959 The UN Declaration of the
Rights of the Child had been set forth in a League of Nations Declaration of
1924. The preamble that children need special safeguards and care,
including appropriate legal Protection before as well as after death.
Declarations pledge that mankind owes to the child the best it has no give,
and Specifically call voluntary organization and local authorities to strive for
the observance of childrens rights.

Principles in the Declaration of the Rights of the Child, 1959 is that a child
is to enjoy, special protection as well as opportunities and facilities by law
and by other means, for healthy and normal physical, mental, moral,
spiritual and social development in conditions of freedom and dignity.

Declaration of the Rights of the Child, 1959 Principle and child is entitled to
a name and nationality, to adequate nutrition, housing, recreation and
medical science, to education and for the handicapped to, special
treatment, education and care. Declaration of the Rights of the Child,
principles are on protection against neglect, cruelty and exploitation,
trafficking, underage labor and discrimination.

Article 25

(1) Everyone has the right to a standard of living adequate for the health
and well-being of himself and of his family, including food, clothing, and
housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old
age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance.
All children, whether born in or out of wedlock, shall enjoy the same social
protection.

Article 26
(1) Everyone has the right to education. Education shall be free, at least in
the elementary and fundamental stages. Elementary education shall be
compulsory. Technical and professional education shall be made generally
available and higher education shall be equally accessible to all on the
basis of merit (2) Education shall be directed to the full development of the
human personality and to the strengthening of respect for human rights and
13
fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further the
activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be
given to their children

2.2 - International Covenant on Economic, Social and Cultural

Rights, 1966
The International Covenant on Economic, Social and Cultural Rights is a
multilateral treaty adopted by the United Nations General Assembly on 16
December, 1966 and in force from 3 January, 1976. Commits its parties to
work toward the granting of economic, social, and cultural rights to the Non-
Self governing and Trust Territories and individuals, including labour
rights and the right to health, the right to education, and the right an
adequate standard of living. As of 2015, the Covenant has 164 parties A
further six countries, including the United States, have signed but not
ratified the Covenant.
The International Covenant on Economic, Social, and Cultural Rights is
part of the International Bill of Human Rights, along with the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights including the latter's first and second Optional Protocols.
The Covenant is monitored by the united nation Committee on Economic,
Social and Cultural Rights.
The International Covenant on Economic, Social, and Cultural Rights has
its roots in the same process that led to the Universal Declaration of
Human Rights A "Declaration on the Essential Rights of Man" had been
proposed at the 1945 San Francisco Conference which led to the founding
of the United Nations, and the Economic and Social Council was given the
task of drafting it. Early on in the process, the document was split into a
declaration setting forth general principles of human rights, and a
convention or covenant containing binding commitments. The former
evolved into the Universal Declaration of Human Rights and was adopted
on 10 December, 1948.
Drafting continued on the convention, but there remained significant
differences between United Nation members on the relative importance
of negative civil and political versus positive economic, social and cultural

14
rights. These eventually caused the convention to be split into two separate
covenants, "one to contain civil and political rights and the other to contain
economic, social and cultural rights The two covenants were to contain as
many similar provisions as possible, and be opened for signature
simultaneously. Each would also contain an article on the right of all
peoples to self-determination.
The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter
of the United Nations.
The first document became the International Covenant on Civil and Political
Rights, and the second the International Covenant on Economic, Social
and Cultural Rights. The drafts were presented to the United Nation
Assembly General for discussion in 1954, and adopted in 1966.
International Covenant on Economic, Social and Cultural Rights contain
two articles that specifically refer to children Article 10 and 13.
Under Article 10 The state a parties to the present covenant recognize
that:
Protection and assistance should be according to the family. Which is the
natural and fundamental group unit of society, particularly for its
establishment and it is responsible for the care and education of dependent
children. Marriage mute be entered into with the free consent of the
intending spouses.
Special protection should be accorded to mother during a reasonable
period before and after childbirth. During period working mother should be
accorded paid leave with adequate social security benefits.
Special protection and assistance should be taken on behalf of all children
and young person without any discrimination for reasons of parentage or
other condition.children and young person should be protection from
economis and social exploitation.therir employment in work harmful to their
moral or health or dangerous to life or likey to hamper their normal
development should be punishment by law. State should also age limit
below which the paid employment of child labour prohibited and punishable
by law.
Articles 13- the states parties to the present covenant recognize the right of
everyone to education. The right of everyone to free education (free for
15
the primary level and "the progressive introduction of free education" for
the secondary and higher levels). This is to be directed towards the full
development of the human personality and the sense of its dignity and
enable all persons to participate effectively in society. Education is seen
both as a human right and as "an indispensable means of realizing other
human rights and so this is one of the longest and most important articles
of the Covenant.
Article 13(2) - lists a number of specific steps parties are required to pursue
to realize the right of education. These include the provision of free,
universal and compulsory primary education generally available and
accessible secondary education in various forms (including technical and
vocational training), and equally accessible higher education. All of these
must be available to all without discrimination. Parties must also develop a
school system (though it may be public, private, or mixed), encourage or
provide scholarships for disadvantaged groups. Parties are required to
make education free at all levels, either immediately or progressively
primary education shall be compulsory and available free to all secondary
education shall be made generally available and accessible to all by every
appropriate means, and in particular by the progressive introduction of free
education and higher education shall be made equally accessible to all, on
the basis of capacity, by every appropriate means, and in particular by the
progressive introduction of free education

Articles 13(3) and 13(4) -

Require parties to respect the educational freedom of parents by allowing
them to choose and establish private educational institutions for their
children, also referred to as freedom of education. It also recognizes the
right of parents to ensure the religious and moral education of their children
in conformity with their own convictions. This is interpreted as requiring
public schools to respect the freedom of religion and conscience of their
students, and as forbidding instruction in a particular religion or belief
system unless non-discriminatory exemptions and alternatives are
available.
The Committee on Economic, Social and Cultural Rights interpret the
Covenant as also requiring states to respect the academic freedom of staff
and students, as this is vital for the educational process. It also

16
considers corporal punishment in schools to be inconsistent with the
Covenant's underlying principle of the dignity of the individual.

2.3 - International Covenant on Civil and Political Right, 1966

The International Covenant on Civil and Political Rights is part of
the International Bill of Human Rights along with the International Covenant
on Economic, Social and Cultural Rights and the Universal Declaration of
Human Rights
The International Covenant on Civil and Political Rights is monitored by
the United Nations Human Rights Committee a separate body to the United
Nations Human Rights Council, which reviews regular reports of States
parties on how the rights are being implemented. States must report initially
one year after acceding to the Covenant and then whenever the Committee
requests usually every four years. The Committee normally meets in
Geneva and normally holds three sessions per year.
The International Covenant on Civil and Political Rights has its roots in the
same process that led to the Universal Declaration of Human Rights. A
Declaration on the Essential Rights of Man had been proposed at the 1945
San Francisco Conference which led to the founding of the United Nations,
and the Economic and Social Council was given the task of drafting it. Early
on in the process the document was split into a declaration setting forth
general principles of human rights, and a convention or covenant
containing binding commitments. The former evolved into the Universal
Declaration of Human Rights and was adopted on 10 December, 1948.
The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter
of the United Nations
Drafting continued on the convention, but there remained significant
differences between UN members on the relative importance
of negative Civil and Political versus positive Economic, Social and Cultural
rights These eventually caused the convention to be split into two separate
covenants, "one to contain civil and political rights and the other to contain
economic, social and cultural rights The two covenants were to contain as
many similar provisions as possible, and be opened for signature
simultaneously. Each would also contain an article on the right of all
peoples to self-determination.
17
The first document became the International Covenant on Civil and Political
Rights and the second the International Covenant on Economic, Social and
Cultural Rights. The drafts were presented to the UN General Assembly for
discussion in 1954, and adopted in 1966 As a result of diplomatic
negotiations the International Covenant on Economic, Social and Cultural
Rights was adopted shortly before the International Covenant on Civil and
Political Rights.
International Covenant on Civil and Political Rights contain one article that
specified refer to children Article 24.
Article 24 mandates special protection, the right to a name, and the right to
a nationality for every child.
2.4 - Convention on the Rights of the Child, 1989
The United Nations Convention on the Rights of the Child 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.
Nations that ratify this convention are bound to it by International law.
Compliance is monitored by the united nation Committee on the Rights of
the Child, which is composed of members from countries around the world.
Once a year, the Committee submits a report to the Third Committee of
the United Nations General Assembly, which also hears a statement from
the convention on the rights of the child Chair, and the Assembly adopts a
Resolution on the Rights of the Child.
Governments of countries that have ratified the Convention are required to
report to, and appear before, the United Nations Committee on the Rights
of the Child periodically to be examined on their progress with regards to
the advancement of the implementation of the Convention and the status of
child rights in their country. Their reports and the committee's written views
and concerns are available on the committee's website.
The United Nation General Assembly adopted the Convention and opened
it for signature on 20 November, 1989 the 30th anniversary of
its Declaration of the Rights of the Child. It came into force on 2
September, 1990 after it was ratified by the required number of nations.
Currently, 196 countries are party to it, including every member of the
United Nations except the United States.
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2.5 The world Summit for Children, 1990
The United Nation World Summit for Children was held in the United Nation
Headquarters in New York City on 29 September, 1990. The Summit had
the then largest ever gathering of heads of state and government to commit
to a set of goals to improve the well- being of children worldwide by the
year 2000. It was the first time a United Nation conference had set a broad
agenda for a wide range of goals in health, education, nutrition and human
rights.

The main result of the World Summit was the joint signing of a World
Declaration on the survival, protection and development of children and a
plan of action comprising a details set of child related human development
goals.

The World Summit for Children was a follow up action to the Convention. it
was held at the un Headquartera and was the first ever World Sumitt which
enables nation leaders to focus exclusively on issues affecting the future of
children. The goals adopted at this Summit were:

1. Reduction in child deaths and child malnutrition

2. Increasing immunization level

3. Halving maternal mortality

4. The universal ratification of the Convention on the Rights of the Child.

Nutrition

1. Malnutrition: reduction of severe and moderate malnutrition among

under-five children by half
2. Water: universal access to safe drinking water
Education

1. Family planning: access by all couples to information and services to

prevent pregnancies that are too early, too closely spaced, too late,
or too numerous

19
 2. Knowledge skills and values required for better living: increased
acquisition by individuals and families of knowledge, skills and values
for better living
3. Universal access to basic education: achievement of primary
education by at least 80% of primary school-age children
4. Universal access to education with an emphasis on primary
education for girls and literacy training for women
5. Early childhood development (ECD): expansion of ECD activities,
including appropriate low-cost family and community-based
interventions
Protection

1. Improve protection of children in extremely difficult circumstances

2. Growth monitoring: growth promotion and regular growth monitoring
among children to be institutionalized in all countries by the end of
the 1990

2.6 - World Conference on Human Rights, 1993

In the World Conference on Human Rights considerable urgency was
expressed for the protection and implementation of the rights of the child.
The World Conference reiterates the principle of first call for children. In this
respect it underlines the importance of the role of the United Nation
International Children Emergency Fund in the protection and promotion of
the rights of the child. Human Rights begin with Children Rights is the new
perception given by the United Nation International Children Emergency
Fund for the promotion of rights of the child. An opinion was also expressed
that measure should be taken to achieve universal ratification of the
Convention as well as its effective implementation.

2.7 - Provision in International Labour Organisation

The International Labour Organization was created in 1919, as part of the
Treaty of Versailles that ended World War I. The Constitutions of the
international labour organization was drafted by the labour commission, a
body set up by the allied countries during the Paris Peace Conference. The
Labour Commission was chaired by the head of the American Federation
20
of Labour and was composed of delegates from nine countries: Belgium,
Cuba, Czechoslovakia, France, Italy, Japan, Poland, the United Kingdom
and the United States. The International Labour Organisation is a tripartite
organization with representatives from governments, employers and
employees part of the executive bodies. The driving force behind the
creation of the International Labour Organization was the idea that peace
could only really be achieved by social justice.

The areas of concern outlined by the International Labour Organisation are

still important today:

1. Regulation of working hours

2. Regulation of labour supply

3. Protection of workers who are ill or injured due to work

4. Protection of children, adolescents and women

5. Provisions for pension and social security

6. Up-holding the principle that pay should equal the value of the
work

7. Up-holding the principle of freedom of association

8. Organization of technical and vocational training to meet labour

demands

The objectives of the International Labour Organisation are Promote and

realize standards and fundamental principles and rights at work. Generate
greater opportunities for women and men to secure decent employment
and income. Improve the coverage and effectiveness of social protection
for all. Reinforce tripartism and mediate negotiation, consultation and
exchange of information between, the three stakeholders on issues of
common interest.

The representatives of member countries of the International Labour

Organisation meet once a year in June in Geneva for the International
Labour Conference. There are a 183 member states in the International
21
Labour Organisation. Two government delegates, an employer delegate
and a worker delegate represent each Member Country. The purpose of
the conference is to decide on labour standards, discuss important labour
issues as well as elect the governing body. The Governing Body meets
three times a year in Geneva and is the executive branch of the
International Labour Organisation . The Governing Body makes proposals
on budget, policy and programmes for the conference to adopt. It also
elected the Director-General. The Body consists of elected representatives
of all three parties of the International Labour Organisation. The
International Labour Organisation also has a permanent administrative
centre, called the International Labour Office. The Office comes under the
supervision of the Governing Body and Director-General.

The Director-General is elected for a five-year term. The current Director-

General is Juan Somavia. He was elected to his first term as the ninth
Director-General of the International Labour Organisation in 1998. He was
re-elected for a second term in 2003 and a third term in 2008. He has held
many positions in the United Nation such as Chairman of the Social
Committee of the United Nations Economic and Social Council and
President of the United Nations Economic and Social Council.

The International Labour Organisation has a number of areas of work:

1. International Labour Standards these standards aim at giving equal

opportunities of employment to all people in conditions promote
safety, security and dignity.

2. Official Meetings International Labour Organisation holds meetings

not only at the international level but also at the national, state and
sectoral level to discuss labour issues affected those areas.

3. Events and Campaigns are organised to increase awareness and

participation of the public in resolving labour issues.

4. Projects International Labour Organisation engages in technical

cooperation projects to carry forth the objective of providing decent
work for people. One of the projects the International Labour

22
 Organization is engaged in is International Programme on the
Elimination of Child Labour.Training offers information and training
packets to states and employers to improve their skilled human
resources for better work. Publications, Statistics and Databases

The International Labour Organisation International Programme on the

Elimination of Child Labour was started in 1992 with the overall goal of the
ordered elimination of child labour. India was the first country to join it in
1992 when it signed a Memorandum of Understanding with International
Labour Organization. To achieve this International Labour Organisation
works to build the capacity of International Labour Organisation agencies
and NGOs to deal with the child labour causes and create programmes for
child labourers. It researches intervention methods at the community level
which as effective and can be replicated elsewhere. International Labour
Organisation also runs a mass awareness movement to create social
mobilisation that aims at elimination of child labour.international programme
on the elimination of child labour currently has projects in 88 countries. It is
the biggest single operational programme of the International Labour
Organisation.

23
CHAPTER - 3
Protection under constitution
The first step to fulfil the rights of children can be found in the Constitution
of India. There are a number of articles that address various needs of
children as outlined below. The articles are divided into two categories:
Fundamental Rights and Directive Principles of State Policy. Fundamental
Rights are justifiable in a court of law and are negatives that prohibit the
states from doing thing. The courts are bound to declare a law as invalid if
it violates a fundamental right. Directive principles are positive suggestions
for states, and are not justifiable in a court of law. Children on their tender
age and immature mind need special care and protection. They have
certain special rights and legal entitlements that are nationally and
internationally. The constitution of india recognized the rights of children for
the first time and included several articles their liberty, livelihood and
development of childhood, non-discrimination in educational, compulsory
and free education and prohibition of their employment in factories, mines
and hazardous industries. Socially and physically children are the weakest
of the society.

There are many provisions in the constitution that are directly or indirectly
related to the protection and development of children.

3.1 - Fundamental Rights

Article 14- The State shall not deny to any person equality before the law or
the equal protection of laws with in the territory of India.

Article 15(3) - The State shall not discriminate against any citizen. Nothing
in this Article shall prevent the State from making any special provisions for
women and children.

Article 21-No person shall be deprived of his life or personal liberty except
according to procedure established by law

24
Article 21(A)-The State shall provide free and compulsory education to all
children of the age of 6-14 years in such manner as the State may, by law,
determine.

Mohini Jain v. State of Karnataka

The Indian government reserves a proportion of private school admissions
for students from communities that are recognised by the Indian
Constitution as having experienced historic discrimination, or other groups
designated by the government. These reservations are often referred to as
government seats. In 1989, the government of Karnataka issued a
notification pursuant to the Karnataka Educational Institutions (Prohibition
of Capitation Fee) Act of 1984, which prohibits capitation fees those based
on the number of persons to whom a service is provided, rather than the
cost of providing a service. The notification fixed the maximum allowable
tuition fees to students of private medical colleges in the state. Under the
notification, private medical colleges were allowed to charge higher fees to
students not admitted to government seats than to those admitted to
government seats. Students admitted to government seat were required to
pay Rs 2,000 per year in fees. Karnataka students who were not admitted
to government seats were charged fees up to Rs 25,000 per year. Students
from outside Karnataka were charged fees up to Rs 60,000 per year. Facts
Miss Mohini Jain, a resident in Uttar Pradesh, applied to enrol in a course
at Sri Siddhartha Medical College, a private medical college in Karnataka.
The college requested a deposit of Rs. 60,000 for tuition fees for the first
year and a bank guarantee to cover the fees for the remaining years. Jain
and her family did not have the means to pay the requested sum, and the
private medical college denied her admission to the course. Jain filed a
petition with the Supreme Court of India against the Karnataka government,
challenging the notification permitting the private medical college to charge
a higher tuition fee to students not admitted to government seats than
those admitted to government seats

1. AIR 1992 SC 1858

25
 The Karnataka Medical Colleges Association and the Sri Siddhartha
Medical College were also added as respondents. Issue The case
presented three main questions before the Supreme Court: 1. whether a
right to education is guaranteed under the Indian Constitution. 2. If so,
whether allowing private schools to charge capitation fees violates this
right. 3. Whether charging capitation fee in educational institutions violates
Article 14 of the Indian Constitution, which guarantees equal protection of
the laws. Decision The Supreme Court first held that, although the right to
education was not explicitly guaranteed by the Constitution, it is essential to
the realisation of the fundamental right to life and human dignity under
Article 21. In addition, the Court found that It is clear that the framers of the
Constitution made it obligatory for the State to provide education for its
citizens. In its reasoning, the Court cited the Universal Declaration of
Human Rights, and a number of cases that held that the right to life
encompasses more than life and limb, including necessities of life,
nutrition, shelter and literacy.

Unni Krishnan, J.P. & Ors. V. State of Andhra Pradesh & Ors.
The Supreme Court held that the Right to education though included as a
directive principle in Article 45 of the constitution, should be treated as a
fundamental right within the meaning of Article 21 of the Constitution and
therefore it is the bounded duty of all the organs of the state to enforce this
right to the children upto the age of fourteen years. The court further added
that judiciary being also an important organ of the state, has to keep the
same in mind when called upon to decided matters relating to children
welfare. Providing education to children upto 14 years of age would
certainly help in prevention of child labour and employment of children of
tender age in industrial or other purposes.

1. AIR 1993 SC 2178.

26
 The state responded to this declaration nine years later by inserting,
through the eighty-sixth amendment to Constitution, Article 21-A, which
provides for the fundamental right to education for children between the
ages of six and fourteen. In addition, several States in India have passed
legislation making primary education compulsory. These statutes have
however remained un-enforced due to various socio-economic and cultural
factors as well as administrative and financial constraints. There is no
central legislation making elementary education compulsory

T.M.A Pai Foundation v. State of Karnataka

This case decided by a Constitution Bench of 11-Judges of the Supreme

Court mainly on the question of scope of right of minorities to establish and
administer educational institutions of their choice under Article 30(1) read
with Article 29(2) of the Constitution. This judgment deals with the rights of
and permissible restrictions upon minority (aided and unaided) institutions.
The majority opinion is on behalf of six Judges with one more Judge
concurring with the majority by a separate opinion. Remaining four Judges
gave three separate opinions in which they party dissented from the
majority opinion.
The Supreme Court held as under:

1. With regard to a State law, the unit to determine a religious or linguistic

minority can only be the State.
2. Even for a Central law, for the purpose of determining the minority, the
unit will be the State and not the whole of India; thus, religious and
linguistic minorities, who have been put on a par in Article 30, have to be
considered State-wise

1. AIR 2003 SC 697.

27
3.The question, whether followers of a sect or denomination of a
particular religion can claim minority status even though followers of that
religion are in majority in that State, was left unanswered to be decided
by a regular Bench.

4. The question as to what are the indicia for treating an educational

institution as a minority educational institution, whether the fact that it
was established by or is administered by person(s) belonging to a
religious or linguistic minority is determinative of its character, was also
left unanswered to be decided by a regular Bench.

5. The minorities rights under Article 30(1) cover professional

education as indicated by the use of the words of their choice.

6. Any regulation framed in the national interest must necessarily apply

to all educational institutions, whether run by the majority or the minority.
Such a limitation must necessarily be read into Article 30. The right
under Article 30(1) cannot be such as to override the national interest or
to prevent the Government from framing regulations in that behalf. It is,
of course, true that government regulations cannot destroy the minority
character of the institution or makes the right to establish and administer
a mere illusion; but the right under Article 30 is not so absolute as to be
above the law.
7. Even though the words of Article 30(1) are unqualified, at least
certain other laws of the land pertaining to health, morality and
standards of education apply. The right under Article 30(1) is not
absolute or above other provisions of the law. Regulations or conditions
concerning, generally, the welfare of students and teachers may be
made applicable in order to provide a proper academic atmosphere; as
such provisions do not in any way interfere with the right of
administration or management under Article 30(1).
8. Article 30(2) only means that a minority institution shall not be
discriminated against where aid to educational institutions is granted. If
an abject surrender of the right to management is made a condition of
aid, the denial of aid would be violative of Article 30(2). However,
conditions of aid that do not involve a surrender of the substantial right
of management would not be inconsistent with constitutional
guarantees, even if they indirectly impinge upon some facet of
administration. The implication of Article 30(2) is also that it recognizes
28
that the minority nature of the institution should continue,
notwithstanding the grant of aid.

9.Although the right to administer includes within it a right to grant

admission to students of their choice under Article 30(1), when such a
minority institution is granted the facility of receiving grant-in-aid, Article
29(2) would apply, and necessarily, therefore, one of the rights of
administration of the minorities would be eroded to some extent. As long
as the minority educational institution permits admission of citizens
belonging to the non-minority class to a reasonable extent based upon
merit, it will not be an infraction of Article 29(2), even though the
institution admits students of the minority group of its own choice for
whom the institution was meant. What would be a reasonable extent
would depend upon variable factors, and it may not be advisable to fix
any specific percentage. The situation would vary according to the type
of institution and the nature of education that is being imparted in the
institution. Even if it is possible to fill up all the seats with students of the
minority group, the moment the institution is granted aid, the institution
will have to admit students of the non-minority group to a reasonable
extent. Observing that a ceiling of 50% would not be proper, the
Supreme Court held that it will be more appropriate that, depending
upon the level of the institution, whether it be a primary or secondary or
high school or a college, professional or otherwise, and on the
population and educational needs of the area in which the institution is
to be located, the State properly balances the interests of all by
providing for such a percentage of students of the minority community to
be admitted, so as to adequately serve the interest of the community for
which the institution was established.

10. For unaided schools and undergraduate colleges, where scope for
merit-based selection is practically nil, State or University can provide for
the qualifications and minimum eligibility conditions. Admission has to be
on a transparent basis and merit considered.

11Right to administer is not absolute and so regulatory measures can be

imposed for ensuring educational standards and maintaining excellence
thereof especially in professional institutions.

29
12. An aided minority institution remains so despite receiving grant-in-
aid from the Government. It has a right over admitting its minority
students on merit basis. It must also admit a reasonable number of non-
minority students. What is a reasonable number is to be decided by
State Govt. on consideration of type of institution, the courses of
education, population and educational needs etc.

13. Right of minorities includes right to determine the procedure and

method of admission and selection of students which must be fair and
transparent and based on merit for professional and higher education
colleges. Even unaided minority institution cannot ignore merit. In case
of aided institution, for non-minority students, the State can regulate the
admission which has to be merit-based subject to reservation policy of
the State. Merit to be determined by an entrance test or by any other
method with consideration for weaker sections.

14. In case of unaided minority institutions, the regulatory measure of

control by the State should be minimal though condition of recognition
and of affiliation have to be complied with, and though matters of
appointment of teaching and non-teaching staff and administrative
control over them would be beyond regulation. Fees charged by unaided
institutions cannot be regulated but they cannot charge capitation fee.

15. In case of aided minority institutions, regulations can be provided for

conditions of service of teaching and other staff without interfering with
the overall administrative control.

16. But, both in aided and unaided minority institutions, management

must evolve a rational procedure for selection of teaching staff and for
taking disciplinary action. State or controlling authority can always
prescribe the minimum qualification, experience and other conditions
bearing on the merit of an individual for being appointed as a teacher or
a principal of any educational institution.

30
Article 23- Traffic in human being and beggar and other similar forms of
forced labour are prohibited and any contravention of this provision shall be
an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the state from imposing compulsory
service for 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.

Peoples Union for Democratic Rights v. Union of India

The Supreme Court considered the scope and ambit of Article 23 in detail.
The Court held that the scope of Article 23 is wide and unlimited and strikes
at "traffic in human beings" and "beggar and other forms of forced labour"
wherever they are found. It is not merely "beggar" which is prohibited
by Article 23 but also all other forms of forced labour, "Beggar is a form of
forced labour under which a person is compelled to work without receiving
any remuneration. This Article strikes at forced labour in whatever form it
may manifest itself, because it is violative of human dignity and contrary to
basic human values. The practice of forced labour is condemned in almost
every international instrument dealing with human rights. person who is
forced to give his labour or service to another is paid remuneration or not.
Even if remuneration is paid, labour or services supplied by a person would
be hit By this Article, if it is forced labour, e.g., labour supplied not willingly
but as a result of force or compulsion, this Article strikes at every form of
forced labour even if it has its origin in a contract voluntarily entered into by
the person obligated to provide labour or service. If a person has
contracted with another to perform service and there is a consideration for
such service. In the shape of liquidation of debt or even remuneration he
cannot be forced by compulsion of law, or otherwise to continue to perform
such service as it would be forced labour within the meaning of Article 23.
No one shall be forced to provide labour or service against his will even
though it be under a contract of service. The word "force" was interpreted
by the court very widely. Bhagwati, J. said.

1. AIR 1982 SC 1943.

31
 'The word 'force' must therefore be construed to include not only physical
or legal force but also force arising from the compulsion of economic
circumstances which leaves no choice of alternatives to a person in want
and compels him to provide labour or service even though the
remuneration received for it is less than the minimum wage.

Sanjit Roy v. State of Rajasthan

In this case court held that the payment of wages lower than the minimum
wages to the person employed on Famine Relief Work is violative of Art.
23. Whenever any labour or service is taken by the State from any person
who is affected by drought and scarcity condition the State cannot pay him
less wage than the minimum wage on the ground that it is given them to
help to meet famine situation. The State cannot take advantage of their
helplessness.

Deena v. Union of India

In this case court held that labour taken from prisoners without paying
proper remuneration was "forced labour" and violative of Art. 23 of the
Constitution. The prisoners are entitled to payment of reasonable wages for
the work taken from them and the Court is under duty to enforce their
claim.

1.AIR 1983 SC 328.

2.AIR 1983 SC 1158
32
Bandhu Mukti Morcha v. Union of India
In this case the main issue conditions of bonded labourers working in
some of the atone quarries in Faridabad district in Haryana state were
brought to the notice of the supreme court by way of a letter written by an
organization dedicated to the cause of release of bonded labourers in the
country.the state government of Haryana with its usual bureaucratic
approach raised a preliminary objection to the pil petition on the ground that
no fundamental right of the petitioner or labourers was violated. Rejection
the objection, mr justice bhagwati observed;-

When a complaintsis made on behalf of workmen that they are held in

bondage and are working and living in miserable conditions without any
proper or adequate shelter over their heads, without any protection against
sun and rain, without two square meals per day and with only dirty water
from a nullah to drink, it is difficult to appreciate how such a complaints can
be thrown out on the ground that it is not voilateve of the fundamental rights
of the workmen. It is fundamental right of every one in this country to live
with dignity as as enshrined in article 21 which derives its life breath from
the directive principles of state policy and clauses(e) and (f) of article 41
and 42 and at the least, therefore it must include protection of the health
and atrength of workers men and women and of the tender age of children
against abuse. These are the minimum requirements which must exist in
order to enable a person to live with human dignity and no state has the
right to take any action which will deprive a person of the enjoyment of
these basic essentials.

The court interpreted the provisions of the bonded labour system (abolition)
act, 1976 in its true spirit and poited out that the state government was
under an obligation to identify, release and rehabilitate the bonded
laboures. The court further directed that non-political social action groups
and voluntary agencies, particularly those with record of honest and
competent service for the weaker sections, agricultural labouers and other

1. AIR 1984 SC 802

33
Unorganized labour force shiuld be involved in the task of identification and
release of bonded labour.

The cort allowing the prtition, issued direction to the government of Haryana
which are as follows;-

(1)the government should constitute in each sub-division of a district,

vigilance committee in compliance of the requirement of section 13 of the
bonded labour system(abolition) act, 1976 without any delay.

(2)thedistrict magistrates should be instructed to take up the work of

identification of bonded labour on top priority basis and to spot out the areas
of concentration of bonded labour which are mostly found in stone queries
and brick kilns. They should hold periodic camps in these area for educating
the laboures with the assistance of the national labour institutes.

(3)the state should also seek the assistance of social action groups and
voluntary organizations fpor implementing the provisions of bonded labour
abolition act.

Article 24-No child below the age of 14 years shall be employed to work in
any factory or mine or engaged in any other hazardous employment.The
Constitution (86th Amendment) Act was notified on 13th December 2002,
making free and compulsory education a Fundamental Right for all children
in the age group of 6-14 years.

M. C. Mehta v. State of Tamil Nadu

The Supreme Court has held that children below the age of 14 years
cannot be employed in any hazardous industry.

1. AIR 1997 SC 699.

34
Exhaustive guidelines was laid down as to how State Authorities should
protect economic, social and humanitarian rights of millions of children ,
working illegally in public and private sections. The court issued directions to
implement directions:

(1) A survey about the child labour within 6 months.

(2) 'The Court identified nine industries first where the work could be taken
up namelythe match industry in ,the Diamond Polishing Industry etc.

(3) The employments given could be in the industry where the child is
employed, a public sector undertaking, and could be manual in nature
inasmuch as the child in
question must be engaged in doing manual work. The undertaking chosen
for employment shall be one which is nearest to the place of residence of the
family.

(4) In those cases where no alternative employment is available, to the adult-

member of child's family the parent would be paid income from interest of
Rs. 25,000 the employment given or payment made would cease if the child
is not sent for education by parents. -

(5) On discontinuance of the employment his education could be ensured

until they complete the age of 14 years and shall be free as required by Art.
45 of the Constitution. It would-be the duty of the Inspectors to see that this
call of the Constitution is carried out.

(6) The Secretary of the Ministry of Labour of the Union of India would
apprise the Court within one year about the compliance of the directions of
the Court in this regard.

It is true that a declaration of fundamental rights is meaningless unless there

is effective machinery for the enforcement of the rights. It is remedy which
makes the right real. If there is no remedy there is no right at all. It was,
therefore, in the fitness of the things that our Constitution-makers having
incorporated a long list of fundamental rights have also provided for an
effective remedy for the enforcement of these rights underArticle 32 of
the Constitution. Article 32 is itself a fundamental right. Article 226 also

35
empowers all the High Courts to issue the writs for the enforcement of
fundamental rights. Article 32 (1) guarantees the right to move the Supreme
Court by "appropriate proceedings" for the enforcement of the fundamental
rights conferred by Part III of theConstitution. Clause (2) of Art. 32 confers
power on the Supreme Court to issue appropriate directions or orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition,
quo-warranto and certiorari for the enforcement of any of the rights conferred
by Part III of the Constitution. Under clause (3) of Art. 32 Parliament may by
law empower any other court to exercise within the local limits of its
jurisdiction all or of the powers exercisable by the Supreme Court under
clause (2). Clause (4) says that the right guaranteed by Article 32 shall not
be suspended except as otherwise provided for the Constitution. Art 32 thus
provides for an expeditious and inexpensive remedy for the protection of
fundamental rights from legislative and executive interference.

Under Art. 32 (1) the Supreme Court's power to enforce fundamental right is
widest. There is no limitation in regard to the kind of proceedings envisaged
in Art. 32 (1) except that the proceeding must be "appropriate" and this
requirement must be judged in the light of the purpose for which the
proceeding is to be taken, namely, enforcement of fundamental rights. It is
not obligatory for the Court to follow adversary system. The Constitution-
makers deliberately did not lay down any particular form of proceeding for
enforcement of fundamental right nor did they stipulate that such proceeding
should conform to any rigid pattern or a strait-jacket formula because they
knew that in a country like India where there is so much of poverty,
ignorance, illiteracy, deprivation and exploitation, any insistence on a right
formula of proceeding for enforcement of fundamental right would become
self-defeating.

It is clear from Article 32 (1) that whenever there is a violation of a

fundamental right any person can move the Court for an appropriate remedy.
Traditional rule of locus standi that a petition under Article 32 can only be
filed by a person whose fundamental right is infringed has now been
considerably relaxed by the Supreme Court in its recent rulings. The Court
now permits public interest litigations or social interest litigations at the
instance of 'public spirited citizens' for the enforcement of Constitutional and
other legal rights of any person or group of persons who because of their
poverty or socially or economically disadvantaged position are unable to
approach the Court for relief. Once the fundamental rights of the labourers is
infringed, they could approach the Supreme Court by issuing writ under Art
36
32 and 226.Articles 38, 39, 39-A, 41, 42, 43, 43-A and 47 of
the Constitution embody the Directive Principles of State Policy which
though cannot be enforced through a court of law are nevertheless
fundamental in the governance of the country, casting a duty on the State to
apply those principles in making laws. The directive principles are therefore
subordinate to the fundamental rights guaranteed under Part III of
the Constitution
Under these articles it is the duty of the State to promote the welfare of the
people, by securing and protecting a social order in which justice social,
economic and political shall inform all the institutions of the national life; to
make effective provision for securing the right to work, education and public
assistance in cases of employment, etc., subject to limits of its economic
capacity to make provision for just and humane condition of work and for
maternity relief; to endeavor, to secure by suitable legislation or economic
organization to all workers work, living wage, conditions of work ensuring a
decent standard of life and full enjoyment of leisure and social and cultural
opportunities, to promote cottage industries on an individual or cooperative
basis in rural areas, and to raise the level of nutrition and the standard of
living and improve public health etc.
To achieve the above object the State is duty-bound to direct its policy
towards securing an adequate means of livelihood for all citizens; to so
distribute the ownership and control of the material resources of the
community as best to subserve the common good; to avoid concentration of
wealth and means of production to the common detriment; to secure equal
pay for equal work both for men and women; to prevent abuse of health and
strength of workers, men, women and children of tender age and to protect
children and youth against exploitation and against moral and material
abandonment.
With the onward march of civilization, our notions as to the scope of the
general interest of the community are fast changing and widening with result
that our old and narrower notions as to the sanctity of the private interest of
the individual can no longer stem the forward flowing tide of time and must
necessarily give way to the broader notions of general interest of the
community. The emphasis is unmistakably shifting from the individual to the
community. This modern trend in the social and political philosophy is well
reflected and given expression in our Constitution]. The Directive Principles
of State Policy, though not strictly enforceable in courts of law, are yet
fundamental in the governance in the country. Provisions contained in the
chapter on Directive Principles of State Policy cannot be enforced by courts.
But while considering the question of enforcement of fundamental rights of a
37
citizen it is open to the court to be guided by the Directive Principles to
ensure that in doing justice the principles contained therein are maintained.
Fundamental rights and the directive principles constitute "conscience of
the Constitution". The Constitution aims at bringing about a synthesis
between 'Fundamental Rights and Directive Principles of State Policy' by
giving to the former a place of pride and to the latter a place of permanence,
together they form core of the Constitution. They constitute its true
conscience and without faithfully implementing the Directive Principles it is
not possible to achieve the welfare State contemplated by the Constitution.
The view that the principles contained inArticles 39(a) and 41 must be
regarded as equally fundamental in understanding and interpreting the
meaning and content of fundamental rights is in consonance with the
following observations of Chinnappa Reddy, J. in Randhir Singh v. Union of
India.in the of the concept of 'equal pay for equal work' in service
jurisprudence: "It is true that the principle of 'equal pay for equal work' is not
expressly declared by ourConstitution to be fundamental right. Article 39(J)
of the Constitution proclaims 'equal pay for equal work for both men and
women' as a Directive Principle of State Policy. . . . Directive Principles, as
has been pointed out in some of the judgments of this Court, have to be read
into the fundamental rights as a matter of interpretation.... ConstruingArticles
14 and 16 in the light of the Preamble and Article 39(d) we are of the view
that the principle 'equal pay for equal work' is deducible from those Articles.

Peoples Union of Democratic Rights v. Union of India

In this case court held that the Employment of Children Act, 1938 was not
applicable in case of employment of children in the construction work of
Asiad Project in Delhi construction industry was not a process specified in
the Children Act. The court rejected this contention and held that the
construction work is hazardous employment and therefore under art.24 no
child below the age of 14 years can be employed in the Employment of
Children Act, 1938.the state government to take immediate step for inclusion
of construction work in the schedule to the act, . The facts of the case were
that the Peoples' Union of Democratic Rights, an NGO, addressed a letter to
the Supreme Court annexing the report of social activists regarding the
conditions under which the workmen engaged in various Asiad projects were
working.

1. AIR 1983 SC 1473.

38
Salal Hydro Project vs. Jammu & Kashmir
In this case court has reiterated the principle that the construction work is a
hazardous employment and children below 14 cannot be employment in
this work.The Court maintained that the child labour is an economic
problem. Poor parents seek to augment their meager income through
employment of children. So, a total prohibition of child labour in any form
may not be socially feasible in the prevailing socio-economic environment.
Article 24 therefore, puts only a practical restriction on child labour. The
Court further observed that so long as there is poverty and destitution in
this country, it will be difficult to eradicate child labour.

3.2 - Directive Principles of state policy

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

Article 39(f) - That 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.

Article 45- The State shall endeavor to provide early childhood care and
education for all children until they complete the age of six years.

Article 47- The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as
among its primary duties

1. AIR1984 SC 177.

39
Article 243G read with Schedule 11 - provide for institutionalization of child
care by seeking to entrust programmes of Women and Child Development
to Panchayat (Item 25 of Schedule 11), apart from education (item 17),
family welfare (item 25), health and sanitation (item 23) and other items
with a bearing on the welfare of children.

3.3 - Fundamental Duties

The Fundamental Duties of citizens were added to the Constitution by the
42nd Amendment in 1976, upon the recommendations of the Swaran Singh
Committee that was constituted by the government earlier that year.
Originally ten in number, the Fundamental Duties were increased to eleven
by the 86th Amendment in 2002, which added a duty on every parent or
guardian to ensure that their child or ward was provided opportunities for
education between the ages of six and fourteen years. The other
Fundamental Duties obligate all citizens to respect the national symbols of
India, including the Constitution, to cherish its heritage, preserve its
composite culture and assist in its defense. They also obligate all Indians to
promote the spirit of common brotherhood, protect the environment and
public property, develop scientific temper, abjure violence, and strive
towards excellence in all spheres of life. However, many of these are non-
justifiable, without any legal sanction in case of their violation or non-
compliance.. There is reference to such duties in international instruments
such as the Universal Declaration of Human Rights and International
Covenant on Civil and Political Rights, and Article 51A brings the Indian
Constitution into conformity with these treaties.

It shall be the duty of every citizen of India under Article51A(K)-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 to fourteen years.

1. ins. by the constitution (eight-sixth amendment)

40
CHAPTER 4
Policy & laws relating to children

1. The national policy for children 2013

On April 18th, 2013 the Union Cabinet approved the National Policy for
Children to help in the implementation of programmes and schemes for
children all over the country. The policy gives all most priority to right to life,
health and nutrition and also gives importance to development, education,
protection and participation.

The Constitution of India guarantees Fundamental Rights to all children in

the country and empowers the State to make special provisions for
children. To affirm the Governments commitment to the rights based
approach in addressing the continuing and emerging challenges in the
situation of children, the Government of India has hereby adopted this
Resolution on the National Policy for Children, 2013. Through this policy
the State is committed to take affirmative measures legislative, policy or
otherwise to promote and safeguard the right of all children to live and grow
with equity, dignity, security and freedom, to ensure that all children have
equal opportunities; and that no custom, tradition, cultural or religious
practice is allowed to violate or restrict or prevent children from enjoying
their rights.

A child is any person below the age of eighteen years, childhood is an

integral part of life with a value of its own, children are not a homogenous
group and their different needs need different responses, especially the
multi-dimensional vulnerabilities experienced by children in different
circumstances. A long term, sustainable, multi-sectoral, integrated and
inclusive approach is necessary for the overall and harmonious
development and protection of children.every child is unique and a
supremely important national asset
41
Special measures and affirmative action are required to diminish or
eliminate conditions that cause discrimination; all children have the right to
grow in a family environment, in an atmosphere of happiness, love and
understanding. Families are to be supported by a strong social safety net in
caring for and nurturing their children. Priorities in the Policy:

1) Survival, Health and Nutrition

The right to life, survival, health and nutrition is the right of every child and
will receive the highest priority. The Policy ensures equitable access to
comprehensive, and essential, preventive, promotive, curative and
rehabilitative health care, of the highest standard, for all children before,
during and after birth, and throughout the period of their growth and
development. Every child has a right to adequate nutrition and to be
safeguarded against hunger, deprivation and malnutrition. The State
commits to securing this right for all children through access, provision and
promotion of required services and supports for holistic nurturing and
wellbeing, keeping in view their individual needs at different stages of their
life.

The State shall also take into account improving maternal health care,
including antenatal care, safe delivery by skilled health personnel, post
natal care and nutritional support. Providing information for making
informed choices related to birth and spacing of children will be a priority
along with providing adolescents access to information, support and
services essential for their health and development. The Policy highlights
preventing HIV infections at birth and ensuring infected children receive
medical treatment, adequate nutrition and after-care, and are not
discriminated against in accessing their rights.

2) Education and Development

Every child has equal right to learning, knowledge and education. The
State recognizes its responsibility to secure this right for every child, with
due regard for special needs, through access, provision and promotion of
required environment, information, infrastructure, services and supports,
towards the development of the childs fullest potential.

42
The State shall take all necessary measures to:

(i) Provide universal and equitable access to quality Early Childhood Care
and Education of all children below six years of age.
(ii) Ensure that every child in the age group of 6-14 years is in school.
(iii) Promote affordable and accessible quality education up to the
secondary level for all children.
(iv) Foster and support inter sectoral networks and linkages to provide
vocational training options and enable career counseling and vocational
guidance.
(v) Ensure that all out of school children are tracked, rescued, rehabilitated
and have access to their right to education.
(vi) Address discrimination of all forms in schools and foster equal
opportunity, treatment and participation.
(vii) Priorities education for disadvantaged groups by creating enabling
environment.
(viii) Ensure physical safety of the child and provide safe and secure
learning environment.
(ix) Ensure that all processes of teaching and learning are child friendly.
(x) Ensure formulation and practice of pedagogy that engages and delights
children.

3) Protection

Children have the right to be protected wherever they are. The State shall
create a caring, protective and safe environment for all children, to reduce
their vulnerability in all situations and to keep them safe at all places,
especially public spaces. A safe, secure and protective environment is a
precondition for the realization of all other rights of children. The State shall
protect all children from all forms of violence and abuse, harm, neglect,
stigma, discrimination, deprivation or any other activity that takes undue
advantage of them, harms their personhood or affects their development.
To secure the rights of children temporarily or permanently deprived of
parental care, the State shall endeavour to ensure family and community-
based care arrangements guaranteeing quality standards of care and
protection.

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The State commits to taking special protection measures to secure the
rights and entitlements of children in need of special protection,
characterised by their specific social, economic and geo-political situations,
including their need for rehabilitation and reintegration. The State shall also
promote child friendly jurisprudence, enact progressive legislation, build a
preventive and responsive child protection system and promote effective
enforcement of punitive legislative and administrative measures against all
forms of child abuse and neglect.

4) Participation

The State has the primary responsibility to ensure that children are made
aware of their rights, and provided with an enabling environment,
opportunities and support to develop skills, to form aspirations and express
their views in accordance with their age, level of maturity and evolving
capacities, so as to enable them to be actively involved in their own
development and in all matters concerning and affecting them. The State
shall promote and strengthen respect for the views of the child, especially
those of the girl child, children with disabilities and of children from minority
groups or marginalized communities, within the family; community; schools
and institutions; different levels of governance; as well as in judicial and
administrative proceedings that concern them. The State shall engage all
stakeholders in developing mechanisms for children to share their
grievances without fear in all settings; monitor effective implementation of
childrens participation through monitor able indicators; develop different
models of child participation; and undertake research and documentation of
best practices.

5) Advocacy and Partnerships

The policy affirms that the State shall encourage the active involvement
and collective action of individuals, families, local communities, non-
governmental and civil society organizations, media and private sector
including government in securing the rights of the child. The State shall
also make planned, coordinated and concerted efforts to raise public
awareness on child rights and entitlements among the masses. Along with

44
this all stakeholders are to promote the use of rights-based and equity-
focused tools to generate awareness on child rights. This Policy will ensure
that childrens best interests and rights are accorded the highest priority in
areas of policy, planning, resource allocation, governance, monitoring and
evaluation, and childrens voices and views are heard in all matters and
actions which impact their lives. The State shall also ensure that service
delivery and justice delivery mechanisms and structures are participatory,
responsive and child-sensitive, thereby enhancing transparency and
ensuring public accountability.

6) Coordination, Action and Monitoring

Addressing the rights and needs of children requires programming across

different sectors and integrating their impact on the child in a synergistic
way. Community and local governance play a significant role in ensuring
the childs optimum development and social integration. The National
Policy states that the Ministry of Women and Child Development (MWCD)
will be the nodal Ministry for overseeing and coordinating implementation of
this Policy. A National Coordination and Action Group (NCAG) for Children
under the Minister in charge of the Ministry of Women and Child
Development will monitor the progress with other concerned Ministries as
its members. Similar Coordination and Actions Groups will be formed at the
State and District level.

The National Commission for Protection of Child Rights and State

Commissions for Protection of Child Rights will ensure that the principles of
this Policy are respected in all sectors at all levels in formulating laws,
policies and programmes affecting children.

7) Research, Documentation and Capacity Building

The implementation of this Policy will be supported by a comprehensive

and reliable knowledge base on all aspects of the status and condition of
children. Establishing such a knowledge base would be enabled through
child focused research and documentation, both quantitative as well as
qualitative. A continuous process of indicator-based child impact
assessment and evaluation will be developed, and assessment and

45
evaluation will be carried out on the situation of children in the country,
which will inform policies and programmes for children. Professional and
technical competence and capability in all aspects of programming,
managing, working and caring for children at all levels in all sectors will be
ensured through appropriate selection and well planned capacity
development initiatives. All duty bearers working with children will be
sensitised and oriented on child rights and held accountable for their acts of
omission and commission.

2. National policy for children 1974

The National Policy for Children 1974 is the first policy document
concerning the needs and rights of children. It is a very brief document that
does not come close to covering the mass number of issues faced by
children in India. It recognises children to be a supremely important asset
to the country. The goal of the policy is to take the next step in ensuring the
constitutional provisions for children and the UN Declaration of Rights are
implemented. It outlines services the state should provide for the complete
development of a child, before and after birth and throughout a child's
period of growth.

Some of the aims are as follows: children to have comprehensive health

and nutrition programmers. Children should have free and compulsory
education until the age of fourteen. Education should include physical
education, and recreational time. Special attention needs to be given to
children from marginalised backgrounds or children with social handicaps.
Children should be protected from abuse, neglect, cruelty and exploitation.
Existing laws need to be amended to take into account so that the best
interest of the child is always first priority.

The policy outlines that programme formulation and implementation should

give priority to child health, nutrition, orphan and destitute children, and
children with disabilities. The policy calls for the constitution of a National
Children's Board to be charge of planning and upholding the rights of
children. Voluntary organisations also need to be recruited to help ensure
the above provisions. There is need for additional legislative and

46
administrative support. Lastly the Government of India calls for support
from all sections of people and organisations working for children to do
their part to help accomplish the objectives set out in the policy.

Recently there has been a movement to update and expand the National
Policy for Children. A new policy is in the process of being drafted with the
help of various NGOs and government offices.

The National Policy for Children 1974 is the first policy document
concerning the needs and rights of children. It is a very brief document that
does not come close to covering the mass number of issues faced by
children in India. It recognises children to be a supremely important asset
to the country. The goal of the policy is to take the next step in ensuring the
constitutional provisions for children and the UN Declaration of Rights are
implemented. It outlines services the state should provide for the complete
development of a child, before and after birth and throughout a child's
period of growth.

3. National policy on education 1986

The National Policy on Education is an extensive document that covers all

aspects of education from elementary to university level and even adult
education. The Following section is an overview of all aspects of the policy
that directly deals with children ages 0-18. The 1992 revised national policy
education states that aim of education is to keep intact India's long
accepted values of secularism, socialism, democracy and professional
ethics. Education is fundamental to the all round development of a person.
The 1992 national policy education promises efforts to develop a common
school system through 10+2+3 structure. The policy accepts the +2 as part
of school education. With the Constitutional Amendment of 1976, education
has been placed on the concurrent list, which gives the central government
a bigger role in the implementation of education.

In an attempt to remove inequalities in the education system, the policy

emphasises the important of special programmes for marginalized groups
as such women, schedule tribes, schedule castes, handicapped, etc. Some
of the provisions for SCs listed are incentive to families, pre-matric

47
scholarships, constant micro-planning to ensure enrolment, retention and
successful completion of SC students, recruitment of SC teachers, hostel
provisions for SC students and appropriate location of school building to
facilitate participation of SCs. Similar provisions are made for STs including
use of youth teachers and use of tribal languages at initial stages.

The Policy identifies the need to pay attention to minority groups and other
backward sections of society. Hill, desert and remote areas will be provided
with adequate institutional infrastructure. The policy encourages the
integration on handicapped student in the main stream system but also
makes provisions for special schools with hostels if need be. Teachers will
also be trained to deal with special difficulties of handicapped children.

Recognising the impact of early years to the development of a child the

policy makes room for early childhood care and education through the
Integrated Child Development Services programme. With regard to
elementary education the policy makes three very important commitments:
1. Universal access and enrolment. 2. Universal retention of children up to
age 14. 3. A much needed improvement in the quality of education that
allows for children to achieve a certain level of learning.

Education will adopt a child-centred approach, hence catering on an

individual level to the needs of the child. Corporal punishment is to be firmly
excluded from the teaching system. As per Operation Blackboard there
should be one teacher per class, and all necessary equipment and
teaching materials should be provided for by the programme.

Non-formal education system of centres and facilities will be broadened. It

will be brought up to the level of formal education facilities with specially
trained teachers from the community so that children passing out of non-
formal education can enter the formal system. Curriculum in schools with
be guides by both national core as well as needs in the local environment.

According to the Policy the highest priority will be placed on solving the
problem of dropouts, and ensuring retention at the school level. This effort
will be supplemented by non- formal education. The policy states "it shall
be ensured that free and compulsory education of satisfactory quality is

48
provided to all children up to 14 years of age before we enter the twenty-
first century".

In order to enhance the quality higher education, boards of secondary

education will be granted autonomy. The policy introduced generic
vocational courses in higher education to enhance individual employability
and meet the manpower need of India's growing economy. Children who
have "special talent" have been given the opportunities to enhance their
aptitude through Narvodaya Vidyalayas.

In order to make the education system work the policy outlines four
necessary steps: 1. giving the teachers a better deal and more
accountability. 2. Improved student services and adherence to certain
norms of behavior 3. Better facilities for instruction. 4. Setting standards for
performance evaluation at the national and state level.

4. National plan of action 2005

The National Plan of Action for Children, 2005 is by far the most
comprehensive planning document concerning children. Its value is that it
clearly outlines goals, objectives, and strategies to achieve the objectives
outlined and recognises the needs of all children up to the age of eighteen.
It is divided into four basic child right categories as per the United Nations
Convention on the Rights of a Child: Child survival, Child development,
Child protection and Child participation.

Child Survival firstly refers to child health. The plan outlines goals to reduce
children's risk of contracting malaria, TB, and cholera, exposure to
HIV/AIDS, and provide them with full immunisation, access to quality health
care, water, food and sanitation. The goal is also to reduce the poor health
indicators in IMR, CMR and NMR. In order to do this services need to
provide mothers with adequate pre-natal medical attention and nutrition,
encourage safe birth practises, encourage breast feeding as essential to
having healthy babies, cover all children and women within the
reproductive age with necessary immunisations, ensure proper coverage of
all families under the ICDS scheme, educate communities about proper
infant care, universalise use of oral rehydration solution to prevent

49
dehydration in children, make efforts to detect and treat all diseases such
as malaria and Dengue, take steps to prevent mother-child transmission of
HIV/AIDS and provide children with the necessary care and medication to
fight the infection, etc.

The second aspect of child survival is maternal health. In order to insure

the healthy growth and delivery of children it is vital to look at the health of
the mothers. The plan outlines initiatives to improve anaemia in mothers
and girls, generate awareness about maternal health practices and child
spacing, prevent and treat sexually transmitted diseases and infections,
and ensure the health centres are full equipped to handle the needs of
mothers and offer appropriate referrals.

The third aspect of child survival is nutrition. The plan aims at reaching
optimal infant and child nutrition by promoting breast feeding and
prohibiting milk substitutes for infants, conducting constant screening of
children to ensure they are not underweight, empower families with
information about child nutrition, provide anganwadi workers with training to
address basic child diseases such as diarrhoea, make low cost
complementary food products, etc. It is also important to address anaemia
and vitamin A deficiency, address macro and micro malnutrition through
ICDS, Mid-day Meal, Public distribution systems and such programmes.
Lastly a vital aspect to child survival is access to clear water and sanitation.
Special attention is required for girl population and their access to drinking
water, toilets, in rural areas and urban slums. In order to provide enough
water for all there is need to begin water conversation practises such as
rain water harvesting, reclining and reusing of water.

Child Development begins with early childhood care and education. This
section discusses the expansion of ICDS so it's available to all,
development of pre-school centers and, promoting community based
initiatives, and creating awareness regarding birth registration and good
parenting skills. The next section aims at equality and special opportunities
for the girl child, survival, development and protection, elimination of sex
selection and child marriage, protection against sexual and non-sexual
abuse, protection from neglect, break down gender stereotypes and

50
increase access to education facilities. Some of the strategies outlined in
the plan for the girl child are advocacy through social, political and religious
leaders and well as the government, proper enforcement of laws, support
of non-government organizations and initiatives, monitor clinics to ensure
that diagnostic tests are not being run illegally, etc.

The next section in child development discusses the needs of adolescents

(children ages 13-18). The primary concerns with adolescents is child
marriage, STDs, higher education curriculum, protection from exploitation,
and providing adolescents with rehabilitation and support programmes so
that they grown into responsible and aware citizens. This age group
especially required support and counseling services. The next aspect of
development is regarding children with disabilities. The plans aims are
reducing the risk of living with a disability by taking preventive measure
during pregnancy and right after birth, providing these children with the
current facilities that will ensure their mental and physical development,
and help children with disabilities the right to participate fully in society. To
accomplish this state needs to strengthen programmes like ICDS, help
children procure physical aids and learning material, make public building
and transportation disabled friendly, etc.

Children's lives like all other human being are connected to the
environment. In order to safeguard natural resources for our children the
plan outlines the need to create recreational spaces for children, prevent
toxic and harmful effects on the natural environment, use sustainable forms
of production and energy, encourage children's understanding of their own
surroundings, and take states to ensure better sanitation and hygiene in
communities, etc. Lastly one of the most important aspects of child
development is education. The plan discusses the importance of increasing
access to public education to children with disabilities, girls, and children
living in remote areas, improving infrastructure of schools, improving the
quality of education, providing teachers with the correct training, reducing
school drop-outs, supporting marginalised groups of society such as
SC/STs/OBCs, establish counselling services in school, proving children
with healthy mid-day meals,

51
 Child Protection discusses six main groups: children in difficult
circumstances, children in conflict with law, sexual exploitation and child
pornography, child trafficking, combating child labour and children affected
by HIV/AIDS. Children in difficult circumstances require protection from
exploitation, abuse and neglect. The aim is to protect vulnerable groups by
providing them with the proper facilities and services according to their
needs. While keeping the best interest of the child in mind the services
should heave reunite families, rehabilitate and reintegrate children into
society and then provide for special needs of children with disabilities,
homeless children, street children, destitute and orphan children, etc.

Children in conflict with law have rights not to be prosecuted as adults and
hence it is the duty of the government to ensure those rights and provide
for the child while he/she is under their care. This can be done by studying
the crimes children commit and reasons, implementing the provisions of
the Juvenile Justice Act 2000, ensuring children are involved in their own
legal proceedings, etc. The protection of children against sexual
exploitation and child pornography requires the making of a law that
persecute abusers, let up centres equipped to deal with victims, create
awareness, set up information systems to investigate possible abuse, etc.

To protect children from trafficking the government needs to address root

causes of vulnerability, sensitize police, medical facilities and media about
the issue, create mechanisms to track, investigate and prevent trafficking,
etc. To protect child labourers it is first important to understand the number
of working children in India through the census survey, strengthen formal
school systems, properly implement child labour laws, etc. To protect
children affected by HIV/AIDs it is important to prevent mother child
transmission of the disease, and provide children who are affected with the
correct medicines, proper counselling, and include STDs and sexual
education in school curriculum.

Lastly the Child Participation section discusses the need for awareness
about child rights, and making sure children have the appropriate channels
to voice their needs and concerns about their own services. Children have
the right to information about themselves and society that concerns them

52
so that they may make informed decisions; this is specially required for
children in difficult circumstances. The last section of the plan outlined the
need for proper child budgeting taking into consideration actual population
of children, and proper implementation and monitoring of the plan and any
programmes that concern children.

4.2.1 Indian Penal code, 1860

The Indian Penal Code contains provisions giving protection to children.
The Indian Penal code also has a list of offence against children.

According to section 82 says that nothing is an offence which is done by a

child under seven years of age. This is based on the principle of doli
incapax.According to section 83 state that nothing is an offence which is
done by a child above seven years of age and under twelve years, who has
not attained sufficient maturity of understanding to judge the nature and
consequences of his conduct on that occasion.Section 89 refers to acts
done in good faith for the benefit of a child or an insane person by or with
the consent of the guardian.

Nothing which is done in good faith for the benefit of a person under
twelve years of age, or of unsound mind, by or with consent, either express
or implied, of the guardian or other person having lawful charge of that
person, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause or be known by the doer to be likely to cause
to that person: Provided

Provisos first that this exception shall not extend to the intentional causing
of death to the attempting to cause death;

Secondly that this exceptions shall not extend to the doing of anything
which the person doing it knows to be likely to cause death, for any
purpose other than the preventing of death or grievous hurt, or the curing of
any grievous disease of infirmity.

Thirdly that this exception shall not extend to the voluntary causing of
grievous hurt, or to the attempting to cause grievous hut, unless it be for

53
the purpose of preventing of death or grievous hut , or the curing of any
grievous disease of infirmity;

Fourthly That this exception shall not extend to the abetment of any
offence, to the committing of which offence if would not extend.

According to section 315 and 316 discusses the offence of foeticide and
infanticide. If a person commits an act with the intention of preventing the
child from being born alive or an act that results in the death of the child
after birth, that person is committing foeticide/infanticide as long as they do
not do it in the interest of the mother's health or life. If a person does an act
that amounts to culpable death which results in the quick death of an
unborn child, he will be charged with culpable homicide. Section 305 states
that it is a crime for any person to abet the suicide of a child, i.e. a person
who has not completed eighteen years of age.

Section 317 states that is it a crime against children, if their mother or

father expose or leave a child in a place with the intention of abandonment.
This does not prevent the law from pursuing further if the abandonment
results in the death of the child. The parents would then be charged with
culpable homicide or murder.

There are a number of sections in the IPC that discuss kidnapping and
abduction. Section 360 states that kidnapping from India is the defined as
the conveyance of a person beyond the borders of India without their
consent. 361 states that if a male minor of not yet sixteen and female minor
of not yet eighteen is taken from their lawful guardians without their consent
it is termed kidnapping from lawful guardianship. Section 362 defines
abduction as compelling, forcing or deceitfully inducing a person from a
place. Section 363-A states, it is a crime to kidnap or maim a minor for the
purpose or employment of begging. If a person if found employing a minor
for begging, and that person is not the legal guardian of the child, it is
assumed that the child has been kidnapped for the purpose of employment
in begging. Section 364 states that any person who kidnaps another for the
purpose for murdering or disposing of in a way that will lead to murder is
punishable by law. Section 364-A defines ransom kidnapping as any

54
person who kidnaps another to threatens to harm or kill that person in an
attempt to get the government, or any other foreign or state organisation to
do or not do any act. Section 365 discusses kidnapping to secretly or
wrongfully confine someone. Section 366 states it is a crime to force or
compel or abuse a woman to leave a place in order to force her to marry or
seduce or illicit sexual intercourse from her by the kidnapper or another
person. 366A specially outlines such a crime being committed against a
minor girl who has not attained eighteen years of age. Section 367 states it
is a crime to kidnap a person in order to cause them grievous hurt, place
them in slavery, or subject them to the unnatural lust of a person. Section
369 is a specific crime of kidnapping a child under 10 years of age in order
to steal from them.

Sexual offences against children are also covered in the IPC. Section 372
discusses the selling of a child (below the age of eighteen) for the purpose
of prostitution or to illicit intercourse with any person, or knowing that it is
likely that the child is being sold for such a purpose. Section 372 states it is
a crime to buy a child for the purpose of prostitution or to illicit sex from any
person.

Section 376 discusses the offence of rape. Under this section a man who
rapes his wife, who is not below twelve years old is given a lesser
punishment. The section also discusses special circumstances of rape
such as rape committed by a civil servant or police man, rape of a pregnant
woman, gang rape or rape of a child below the age of twelve.

4.2.2 - Contract Act, 1872

The Indian contract act under section 11 describe the person who are
competent to contract .according to section 11a minor is incompetent to
contract but Indian contract act is conspicuous its silence about the nature
of a minor contract

Indian Contract Act, 1872. The contractual capacity of minor can be

adjudged from the provisions of the Indian Contract Act, 1872. Section 11
of the Act deals with the provisions of contractual capacity.

55
Every person is competent to contract who is of the age of majority
according to the law to which he is subject and who is of sound mind and
who is not disqualified from contraction by any law to which he is subject.1

The following persons are declared incompetent to contract:

(1) Minors.

(2) Persons of unsound mind.

(3) Persons disqualified by law to which they are subject.

Agreeement enterd into by a minor there can be no estoppels against a

minor, there is no liability arising out of contract or in tort arising out of
contract and lastly the doctrine of restitution. Section 68 of the Act lays
down provision with respect to the claim for necessaries supplied to a
person incapable of contracting or supplied on his account.

If a person, incapable of entering into a contract or anyone whom he is

legally bound to support, is supplied by another person with necessaries
suited to his condition in life, the person who has furnished such supplies is
entitled to be reimbursed from the property of such incapable person.

4.2.3 - Indian Evidence Act, 1872

Indian Evidence Act, 1872. Section 112 of the Indian Evidence Act speaks
of legitimacy of a child: The fact that any person born during the
continuance of a valid marriage, between his mother and any man, or
within two hundred and eighty days after its dissolution, the Indian evident
act under the sec. 112 related to a child. The mother remaining unmarried,
shall be conclusive proof that he is

1. Section 11, of the Indian contract act, 1872.

56
the legitimate son of that man unless it can be shown that the parties to the
marriage had no access to each other at any time when he could have
been begotten.Evidence of child witness, Section 118, All persons shall
be competed to testify unless the Court considers that they are prevented
from understanding the questions put to them, or form giving rational
answers to those questions by tender years extreme old age, disease,
whether of body or mind, or any other cause of the same kind.

4.2.4- Guardians and wards Act, 1890

According to The Guardians and Wards Act, 1890 a minor/child is any
person who has not completed 18 years of age. "Guardian" means a
person having the care of the person of a minor or of his property or of both
his person and property; "ward" means a minor for whose person or
property or both there is a guardian. The court or appointed authority has
the ability to decide the guardian of a child by appointing one a guardian or
removing another as a guardian. Applications for guardianship should
contain all possible information about the child and guardian and reasons.
Once the court admits the application into court, then the court will set a
date for the hearing. The court will hear evidence before making a decision.

The court must work in the interest of the minor, taking into consideration
the age, sex, religion, character of the guardian, the death of the parent(s),
relation of the child to the guardian, etc. The minor's preference may be
taken into considerationThis Act therefore provides that a child being taken
care of by a guardian or ward must thus be protected by them and no form
of discrimination would be permitted on the same. The Act lays down rules
and regulations keeping in mind the best interest of the child at all times.
This leads to healthygrowth and development of the child and creation of
an atmosphere wherein the child can realize his optimum potential.

Guardian and wards Act, 1890

According to this act a minor/child is any person who has not completed 18
years of age. The court or appointed authority has the ability to decide the
guardian of a child by appointing one a guardian or removing another as a
guardian. No order will be passed without an application. Applications
57
should contain all possible information about the child and guardian and
reasons for guardianship. Once the court admits the application into court,
then the court will set a date for the hearing. The court will hear evidence
before making a decision. A minor and his property may have more than
one guardian. The court must work in the interest of the minor, taking into
consideration the age, sex, religion, character of the guardian, the death of
the parent(s), relation of the child to the guardian, etc. The minor's
preference may be taken into consideration.

The collector of the district where the minor lives can be appointed the
guardian of the child. A minor will not a appointed if the child or her/his
property is under a court of wards, if the minor is married and her husband
is fit to take care of her, or whose father is alive and is deemed fit to take
care of her. Guardians are not meant to make a profit out of their office, but
can receive remuneration as the court sees fit. A minor cannot be deemed
a guardian of another minor. A guardian is responsible for the health,
education and support of the ward. Guardians who wish to move the child
out of the courts jurisdiction may only do so with the permission of the
court. Failure to get permission is a punishable offence. A guardian of
property may not mortgage or sale the property of a ward without the
permission of a will or the court who must act in the interest of the ward.

A list of the wards property, immovable and movable, must be submitted by

the guardian to the court. The court can allow the guardian to take funds
from the property, or use part of whole of the property of the child for
maintenance of the minor. A court may remove a guardian for abusing the
trust of the court and not fulfilling his role as a guardian. A person who no
longer wishes to be a guardian can apply to the court for a discharge. Other
punishable offences are: failure of the guard to produce the property of the
ward, failure to produce the ward in court when requested, and failure to
produce accounts. Reports produced by subordinates of the court or
collector can be considered evidence by the court. Certain orders can be
appealed in a High Court

4.2.5- Civil Procedure Code, 1909

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The Civil Procedure Code provides certain safeguards for children.

Order XXXII, Rule 1 provides for a suit by a minor to be instituted by his

next friend. Rule 2 provides that where a suit is instituted by or on behalf of
a minor without a next friend, the defendant may apply for the plaint to be
taken off the file. In a case where a suit is instituted on behalf of a minor by
his next friend, security for the payment of all costs is to furnished by the
next friend, when so ordered under Rule 2 -A.

Rule 3 provides that where the defendant is a minor, the Court, on being
satisfied of the fact of his minority, shall appoint a proper person to be
guardian for the suit of such minor Further, under Rule 3-A, it is provided
that a decree against a minor is not to be set aside unless prejudice has
been caused to his interests.

Rule 4 gives the qualifications as to who may act as next friend or can be
appointed as guardian for the suit.Rule 5 points out that every application
to the Court on behalf of a minor shall be made by his next friend or
guardian.

Rule 6 provides that a next friend or guardian for the suit shall not, without
the leave of the Court, receive any money or other movable property either
by way of a compromise before the decree or order or under a decree or
order in favor of the minor. Exceptions are made in cases of managers of
Hindu undivided families and parents of minor.

4.2.6 - Factories Act, 1948

The Factories Act, 1948 is an important act which provides for prohibition of
employment of young children and prescribes working hours for minors.

The main object of the Factories Act, 1948 is to ensure adequate safety
measures and to promote the health and welfare of the workers employed
in factories. The Act also makes provisions regarding employment of
women and young persons (including children and adolescents), annual
leave with wages etc.The factories act is extensive and lengthy act that
covers number of concerns for labour working in factories. Provisions in the
act that is relevant to children ages 0-18.
59
Under this Act define, Child means a person who has not completed his
fifteenth year of age.1

The act defines a child as a person who has completed him/her 15th year
of age. It defines an adolescent as one who is has completed his/her15th
year of age but not completed his/her 18th year of age. A young person is
defined as either a child or an adolescent. According to this act it is the duty
of a certified medical practitioner or surgeon to examine and medical
condition and certifies all young people working in the factory. These
examinations take place where a young person is or is going to be
engaged in work that is injurious to his health. Under this act a young
person may not clean or lubricate the parts of any moving machinery that is
likely to cause them injury.

Section 23 is concerned with the employment of young persons on

dangerous machinery. Young persons are not to be compelled to work
dangerous machinery unless they have full prior knowledge of the danger,
are trained and there is a supervisor present at all times who is fully trained
in the machinery. Children are prohibited from working in any area where a
cotton opener is functional. The act service to be available to children
below the age of six with the factory has a minimum of 30 women working
there. Chapter VII of the act concerns the employment of young persons.
This section states that no child below the age of fourteen will be allowed or
required to work in a factory. It requires that all non-adult workers or
adolescents carry tokens that show that they have been deemed medically
fit by a certifying surgeon. The certificate of fitness is given for a 12 month
period, and can be revoked at any point if the child is found not to be
medically fit anymore. The certificate also deem an adolescent to be
Treated as an adult as per certain act.

1. As define under section 2(c) of the factories act.

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The act places time restrictions to the work of adolescents who have been
granted a certificate to work as adults. Adolescents are only allowed to
work in the factory between 6 a.m. and 7 p.m. unless the State
Government decides otherwise. Children or adolescents who have not
been deemed adults shall not be allowed to work in a factory for more than
four and half hours in any day and cannot work at night. They must no work
more than two shifts, are not allowed to work in two factories in the same
day and a register of all children working there and their hours must be
maintained by the manger in every factory. An inspector has the power to
order a medical check-up at any point if he suspects a child is working
against the provisions of this act.1

Children who have worked more than 240 days in the previous calendar
year are allowed one day paid leave for every fifteen days they worked.
He/She can carry forth forty unused leave days to the next calendar year. A
child who has been granted five or more days leave can collect the wages
for those days before the leave. Parents/Guardians of a child can be fined
for allowing the child to work in two factories in the same day. Adolescents
and children are not permitted to work in the manufacturing process or any
other dangerous environment in a factory.2

4.2.7 - Mines Act, 1952

The Mines Act, 1952 also regulates the employments of children in mines.
It prohibits the employment of persons below 18 years of age to work in
any mine and also prohibits the presence of any child in any parent of a
mine which is below. The provisions regarding working hours and rests
have also been taken care of. There are penal provisions also to ensure
the observance of the Act. The relevant sections are Section 40 which
prohibits the employment of persons below 18 years in a mine.3

1. Section 70, of the factories act.1948

2. Section 79, of the factories act.1948
61
 3. Section 40, of the mines act.1952
(I) after the commencement of the Mines (Amendment) Act, 1983, no
persons below 18 years of age shall be allowed to work in any mine or part.
4.2.8 - Hindu adoption and maintenance act, 1956
The Hindu Adoptions and Maintenance Act were enacted in India in 1956
as part of the Hindu Code Bills. The other legislations enacted during this
time include the Hindu Marriage Act (1955), the Hindu Succession Act
(1956), and the Hindu Minority and Guardianship Act (1956). All of these
acts were put forth under the leadership of Jawaharlal Nehru, and were
meant to codify and standardize the current Hindu legal tradition. The
Adoptions and Maintenance Act of 1956 dealt specifically with the legal
process of adopting children by a Hindu adult, and with the legal obligations
of a Hindu to provide "maintenance" to various family members including
their wife or wives, parents, and in-laws.
Who can adopt?
Under this act only Hindus may adopt subject to their fulfillment of
certain criteria. The first of these asserts that the adopter has the
legal right to under this Act that would mean they are a Hindu. Next,
they have to have the capacity to be able to provide for the adopted
child. Thirdly the child must be capable of being adopted. Lastly,
compliance with all other specifications must be making the adoption
valid.
Men can adopt if they have the consent of their wife or of all of their wives.
The only way of getting around obtaining the permission of the wife or of
the wives is if she or if they are unsound, if they have died, if they have
completely and finally renounced the world, and if they have ceased to be a
Hindu. Men who are unmarried can adopt as well as long as they are not a
minor. However, if a man were to adopt a daughter, the man must be
twenty one years of age or older.1

1.section 7, of the hindu adoption and maintenance act, 1956

62
The adopted child can be either male or female. The adopted child must fall
under the Hindu category. The adoptee also needs to be unmarried;
however, if the particular custom or usage is applicable to the involved
parties then the adoptee can be married. The child cannot be the age of
sixteen or older, unless again it is custom or the usage is applicable to the
involved parties. An adoption can only occur if there is not a child of the
same sex of the adopted child still residing in the home. In particular, if a
son were to be adopted then the adoptive father or mother must not have a
legitimate or adopted son still living in the house.
Maintenance of a child or of aged parents
Under this Act, a child is guaranteed maintenance from his or her parents
until the child ceases to be a minor. This is in effect for both legitimate and
illegitimate children who are claimed by the parent or parents. Parents or
infirmed daughters, on the other hand, must be maintained so long as they
are unable to maintain for themselves. Sections 20-22 of the Act cover the
same, and provide for the maintenance of any dependents of an individual.
4.2.9 - Criminal Procedure Code, 1974
There are certain provisions for the protection of children under the CrPC ,
1973.Section 27 refers to jurisdiction in cases of juveniles,

Any offence not punishable with death or imprisonment for life, committed
by any person who at the date when he appears or is brought before the
Court is under the age of sixteen years, may be tried by a Court of Chief
Judicial Magistrate, or by any Court specially empowered under the
Children Act, 1960 (60 of 1960) or any other law for the time being in force
providing for the treatment, training and rehabilitation of youthful offenders.

Section 125 & 126 order for maintenance to be provided to wives, children
and parents.Secton 360 of the CrPC the order to release on probation of
good conduct or after admonition.

4.2.10 - Bonded Labour System (Abolition Act, 1975)

The Bonded Labour System (Abolition) Act, 1976 has been passed to
provide for abolition of bonded labour system with a view preventing the
economic and physical exploitation of he weaker sections of the people.

63
Article 23 (1) of the Indian constitution prohibits begar and other similar
forms of forced labour. It also provides that any contravention of the said
prohition shall be an offence punishable in accordance with law. The
Bonded Labour system was abolished and the bonded labourers were
freed and discharged from any obligation to render any bounded labour
and their bonded debts were also extinguished. The ordinance further
affords protection to the free bonded labourers from eviction from their
homestead. Contraventions of the provisions of the ordinance have been
made offences punishable in accordance with law. Economic rehabilitation
of the free bonded labourers have also been made in the ordinance. The
ordinance was replaced by the Bonded Labour System (Abolition) Act,
1976. The Act prohibits bonded labour system. The Act provides that if
there is any agreement of instrument or custom which requires such
bonded labour, it shall Stan inoperative after the commencement of the Act.

For the compliance of the provisions of the Act, the State Government is
authorized to confer such powers and impose such duties on a District
Magistrate as it deems fit for the purpose. The Act makes provision for
Constitution of Vigilance Committee in each district and each sub-division.
The Committee is vested with wide powers. This Act is a social welfare
legislation providing for socio-economic justice to the weaker section of the
society.

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4.2.11 - Child Labour (Prohibition and Regulation) Act ,1986

Child as defined by the Child Labour (Prohibition and Regulation) Act,

1986 is a person who has not completed the age of fourteen years. A child
of such tender age is expected to play study and be carefree about his life.
But as a fact of nature, expectations hardly meet reality. Children, by will or
by force are employed to work in the harsh conditions and atmosphere
which becomes a threat to their life. Child labour leads to
underdevelopment, incomplete mental and physical development, which in
turn results in retarded growth of children. 1

Causes

Major causes of child employment that can be understood keeping in mind

the Indian scenario, are:

Poverty

In developing countries it is impossible to control child labour as children

have been considered as helping hand to feed their families, to support
their families and to feed themselves. Due to poverty, illiteracy and
unemployment parents are unable to bear the burden of feeding their
children and to run their families. So, poor parents send their children for
work in inhuman conditions at lower wages.

Previous Debts

The poor economic conditions of people in india force them to borrow

money. The Illiterate populations go to money lenders and sometimes
mortgage their belongings in turn of the debt taken by them.

1. As section 2 (ii), of the child labour act, 1986

65
Professional needs

There are some industries such as the bangle making industry, where
delicate hands and little fingers are needed to do very minute work with
extreme excellence and precision. An adults hands are usually not so
delicate and small, so they require children to work for them and do such a
dangerous work with glass. This often resulted in major eye accidents of
the children.

Legislations

When in the 20th Century, child labour became so prominent that news of
factory hazards and mishappenings taking innocent childrens life, flashed
all around in the newspapers, then was the time, a need for legislations and
statutes were felt to prohibit the mal practice of child labour. Today, there
are sufficient statutes condemning and prohibiting child labour such as:

The Factories Act of 1948 the Act prohibits the employment of children
below the age of 14 years in any factory. The law also placed rules on
whom, when and how long can pre-adults aged 1518 years be employed
in any factory.

The Mines Act, 1952 the Act prohibits the employment of children below 18
years of age in a mine. Mining being one of the most dangerous
occupations, which in the past has led to many major accidents taking life
of children, is completely banned for them.

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 list was expanded in 2006,
and again in 2008.

66
The Juvenile Justice (Care and Protection) of Children Act of 2000: This
law made it a crime, punishable with a prison term, for anyone to procure or
employ a child in any hazardous employment or in bondage. This act
provides punishment to those who act in contravention to the previous acts
by employing children to work.

The Right of Children to Free and Compulsory Education Act of 2009: The
law mandates free and compulsory education to all children aged 6 to 14
years. This legislation also mandated that 25 percent of seats in every
private school must be allocated for children from disadvantaged groups
and physically challenged children.

Hazardous Occupations

Part III of The Child Labour (Prohibition and Regulation) Act of 1986
provides for the Prohibition of employment of children in certain
occupations and processes. The Schedule gives a list of hazardous
occupations in two parts, via; A and B

Part A provides that, No child shall be employed or permitted to work in any

of the following occupations:

1. Transport of passengers, goods; or mails by railway

2. Cinder picking, clearing of an ash pit or building operation in the
railway premise.
3. Work in a catering establishment at a railway station, involving the
movement of vendor or any other employee of the establishment
from one platform to another or into or out of a moving train.
4. Work relating to the construction of railway station or with any
other work where such work is done in close proximity to or
between the railway lines.
5. The port authority within the limits of any port.

67
 6. Work relating to selling of crackers and fireworks in shops with
temporary licenses
7. Abattoirs/slaughter Houses
8. Automobile workshops and garages.
9. Foundries
10. Handling of taxies or inflammable substance or explosives
11. Handloom and power loom industry
12. Mines (Underground and under water) and collieries
13. Plastic units and Fiber glass workshop

Part B provides that, No child shall be employed or permitted to work in any

of the following workshop wherein any of the following processes is carried
on.

1 Beedi making

2 Carpet Weaving

3 Cement manufacture including bagging of cement.

4 Cloth printing, dyeing and weaving.

5 Manufacture of matches, explosive and fireworks.

6 Mica cutting and splitting.

7 Shellac manufacture

8 Soap manufacture

9 Tanning.

10 Wool cleaning

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11 Building and construction industry

12 Manufacture of slate pencils (including packing)

13 Manufacture of products of agate

14 Manufacturing processes using toxic metals and substances such as

lead, mercury, manganese, chromium, cadmium, benzene, pesticides and
asbestos

15 All Hazardous prossess an defined in section 2(cb) and dangerous

operationsas notified in ruler made under section 87 of the factories Act
1948

16 Printing (as defined in section 2(k) of the factories Act 1948

17 Cashew and cashew nut descaling and processing

18 Soldering process in electronic industries

19 Incense Stick (Agarbathi) manufacturing

20 Automobile repairs and maintenance (namely welding lather work , dent

beating and printing)

21 Brick kilns and Roof files units

22 Cotton ginning and processing and production of hosiery goods

23 Detergent manufacturing

24 Fabrication workshops (ferrous and non-ferrous)

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25 Gem cutting and polishing

26 Handling of chromites and manganies ores

27 Jute textile manufacture and of coir making

28 Lime kilns and manufacture of lime

29 Lock making

30 Manufacturing process having exposure to lead such as primary and

secondary smelting, welding etc.

31 Manufacture of glass, glass ware including bangles fluorescent tubes

bulbs and other similar glass products

32 Manufacturing of cement pipes, cement products, and other related

work.

33 Manufacture of dyes and dye stuff

34 Manufacturing or handling of pesticides and insecticides

35 Manufacturing or processing and handling of corrosive and toxic

substances, metal cleaning and photo enlarging and soldering processes in
electronic industry

36 Manufacturing of burning coal and coal briquette

37 Manufacturing of sports goods involving to synthetic materials,

chemicals and leather

38 Moulding and processing of fiberglass and plastics

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39 Oil expelling and refinery

40 Paper making

41 Potteries and ceramic industry

42 Polishing, moulding, cutting welding and manufacture of brass goods in

all forms.

43 Process in agriculture where tractors, threshing and harvesting

machines are used and chabt cutting

44 Saw mill all process

45 Sericulture processing

46 Skinning dyeing and process for manufacturing of leather and leather

products

47 Stone breaking and stone crushing

48 Tobacco processing including manufacturing of tobacco, tobacco paste

and handling of tobacco in any form

49 Tyre making repairing, re-trading and graphite beneficiation

50 Utensils making polishing and metal buffing

51 Zari making (all process)

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Hours of period and work

No child shall be required or permitted to work in any establishment in

excess of number of hours prescribed.

The period of work on each day shall not exceed three hours and no child
shall work for more than three hours before he has had an interval for rest
for at least one hour. No child shall be permitted or required to work
between 7 p.m. and 8 a.m. 1

Penalties

Violations under Section-3 shall be punishable with imprisonment which

shall not be less than three months which may extend to one year or with
fine which shall not be less than ten thousand rupees but which may
extend to twenty thousand rupees or with both. Continuing offence under
section (3) shall be punishable with imprisonment for a term which shall not
be less than six months but which may extend to two years. 2

Any other violations under the Act shall be punishable with simple
imprisonment, which may extend to one month or with fine, which may
extend to ten thousand rupees or with both.

Efforts by government of india to control child labour

The child labour (Prohibition and Regulation) Act ,1986 prohibits the
employment of children below the age of 14 years in 16 occupation and 65
processes that are hazardous to the childrens lives and health.

1. Section 7, of the child labour act, 1986

2. Section 14, of the child labour act, 1986

72
 National Child Labour projects have been implemented by the central
government in states from 1988 to provide non-formal education and pre-
vocational skills. From 2001, Sarve Shiksha Abhiyan has been launched to
educate poor and employed children in all states. Ministry of women and
child development has been providing non-formal education and vocational
training. Establishment of Anganwadies is also a big step by the
government for the welfare of children and their physical, mental and
educational development.

4.2.12 - Immoral Traffic Prevention Act, 1986

The Government of India ratified the International Convention for the
Suppression of Immoral Traffic in Persons and the Exploitation of the
Prostitution of others. In 1956 India passed the Suppression of Immoral
Traffic in Women and Girls Act, 1956 .The act was further amended and
changed in 1986, resulting in the Immoral Traffic Prevention Act only
discusses trafficking in relation to prostitution and not in relation to other
purposes of trafficking such as domestic work, child labour, organ
harvesting, etc. The following of the provisions in this law that pertains to
children below the age of 18.

The act defines child as any person who has completed eighteen years of
age. The first section of the act has provisions that outline the illegality of
prostitution and the punishment for owning a brothel or a similar
establishment, or for living of earnings of prostitution as is in the case of a
pimp. Section five of the act states that if a person procures, induces or
takes a child for the purpose of prostitution then the prison sentence is a
minimum of seven years but can be extended to life. To ensure that the
people in the chain of trafficking are also held responsible the act has a
provision that states that any person involved in the recruiting, transporting,
transferring, harboring, or receiving of persons for the purpose of
prostitution if guilty of trafficking. In addition any person attempting to
commit trafficking or found in the brothel or visiting the brothel is punishable
under this law. 1

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If a person if found with a child it is assumed that he has detained that child
there for the purpose of sexual intercourse and hence shall be punishable
to seven year in prison up to life imprisonment, or a term which may extend
to ten year and also a maximum fine of one lakh rupees. If a child is found
in a brothel and after medical examination has been found to have been
sexually abused, it is assumed that the child has been detained for the
purpose of prostitution. 2

Any person committing prostitution in public with a child shall be punishable

to seven year in prison up to life imprisonment, or a term which may extend
to ten year and also a maximum fine of one lakh rupees. If prostitution of a
child is being committed with knowledge of an establishment owner such
as a hotel the license of the hotel is likely to be cancelled along with the
given prison sentence and/or fines.

Any child found in a brothel or being abused for the purpose of prostitution
can be placed in an institution for their safety by a magistrate. Landlords,
leasers, owner, agent of the owner who unknowingly previously rented their
property to a person found guilty of prostituting a child, must get approval
from a magistrate before re-leasing their property for three years after the
order is passed.

In 2006, the Ministry of Women and Child Development proposed an

amendment bill that has yet to be passed. The amendment does not really
concern any of the provisions related to the child but has many important
consequences for the right of women sex workers.

1. As defined under section 2 (aa) of the immoral traffic act, 1986

2. Section 5 of the immoral traffic act, 1986

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4.2.13 - Prohibition of child marriage act 2006
The object of the Act is to prohibit solemnization of child marriage and
connected and incidental matters. To ensure that child marriage is
eradicated from within the society, the Government of India enacted
Prevention of Child marriage Act 2006 by replacing the earlier legislation of
Child Marriage Restraint Act 1929. This new Act is armed with enabling
provisions to prohibit for child marriage, protect and provide relief to victim
and enhance punishment for those who abet, promote or solemnize such
marriage. This Act also calls appointment of Child Marriage Prohibition
Officer for implementing this Act.
Under this act child define means a person who, if a male, has not
completed twenty- one years of age, and if a female, has not completed
eighteen years of age.1

Child marriage has been an issue in India for a long time. Because of its
root in traditional, cultural and religious practices it has been a hard battle
to fight. Child marriage is also associated with other problems like dowry
and child widowhood. It is also associated with malnutrition, poor health of
mothers and high fertility and hence over-population. The following is an
overview of the act.

According to the act a child is a male who has not completed twenty one
years of age and a female who has not completed eighteen years of age.
Child marriage is a contract between any two people of which either one or
both parties is a child. Child marriage that took place before or after this act
can be made void by the person who was a child at the time of marriage.
But the marriage must be voided before the person who was a child
completes their second year of maturity.

A court can decree that if it is the husband that is asking for a void of
marriage than he or his families are responsible to pay for the maintenance
of the girl until she is remarried. The amount of maintenance is to be
determined by the district court.

1. Section 2(a), of the prohibition of child marriage act, 2006

75
The court may also decide for one of the parties to provide maintenance for
the child. Every child conceived before the voiding of the marriage is
considered a legitimate child. 1

If a male adult above eighteen years contracts a child marriage shall be

punishable unto two years imprisonment and/or a fine with may extend to
Rs. 1 lakh. The same punishment will be given to person who performs,
conducts or directs a child marriage. Unless proved otherwise, the parents
or guardian of the child are considered to have failed to prevent the child
marriage and hence are also held accountable. 2

There are certain situations in which a child marriage is deemed void even
without a petition from one of the parties. If a child was detained away from
her/his parents or guardians, forced to go to a different place, sold into
marriage, or made to marry after which they are used for immoral purposes
or trafficked then that marriage is considered to be null and void. The court
has the power after the application of an officer or any person to issue an
injunction prohibiting a suspected child marriage against any person,
including a member of an organization or an association of people. The
court may also act against a suspected child marriage on its own motion
but must provide the person/association with time to respond to the
injunction. Ignoring a notice or injunction is a punishable offence. If the
marriage is still carried out after the injunction, it is automatically voided. 3

The act calls for the instatement of a Child Marriage Prohibition Officer,
who is responsible for ensuring no child marriage takes place in their
jurisdiction by approaching the courts for an injunction, collecting evidence
against people, creating awareness about the negative effects of child
marriage, collect data concerning child marriages, etc. A child marriage
prohibition officer is deemed a public servant in this act.

1. Section 4, of the prohibition of child marriage act, 2006

2. Section 9, of the prohibition of child marriage act, 2006
3. Section 12, of the prohibition of child marriage act, 2006

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4.2.14 - The Right of Children to Free and Compulsory
Education Act, 2009
Every child between the ages of 6 to 14 years has the right to free and
compulsory education. This is stated as per the 86th Constitution
Amendment Act via Article 21A. The Right to Education Act seeks to give
effect to this amendment the government schools shall provide free
education to all the children and the schools will be managed by School
Management Committees (SMC). Private schools shall admit at least 25%
of the children in their schools without any fee. The National Commission
for Elementary Education shall be constituted to monitor all aspects of
elementary education including quality.

Main Features of Right to Education (RTE) Act, 2009

Free and Compulsory Education to all Children of India in the 6 to 14 age
group.
No child shall be held back, expelled or required to pass a board
examination until the completion of elementary education.
If a child above 6 years of age has not been admitted in any school or
could not complete his or her elementary education, then he or she shall be
admitted in a class appropriate to his or her age. However, if a case may
be where a child is directly admitted in the class appropriate to his or her
age, then, in order to be at par with others, he or she shall have a right to
receive special training within such time limits as may be prescribed.
Provided further that a child so admitted to elementary education shall be
entitled to free education till the completion of elementary education even
after 14 years.
Proof of age for admission for the purpose of admission to elementary
education, the age of a child shall be determined on the basis of the birth
certificate issued in accordance with the Provisions of Birth. Deaths and
Marriages Registration Act, 1856, or on the basis of such other document
as may be prescribed. No child shall be denied admission in a school for
lack of age proof.A child who completes elementary education shall be
awarded a certificate.Call need to be taken for a fixed studentteacher
ratio.Twenty-five per cent reservation for economically disadvantaged
communities in admission to Class I in all private schools is to be done.

77
Improvement in the quality of education is important. School teachers will
need adequate professional degree within five years or else will lose job.
School infrastructure (where there is a problem) need to be improved in
every 3 years, else recognition will be cancelled. Financial burden will be
shared between the state and the central government.

4.2.15 - The Protection of Children from Sexual Offence Act,

2012
Under this act the heinous crimes of sexual abuse and sexual exploitation
of children through less ambiguous and more stringent legal provisions, the
Ministry of Women and Child Development championed the introduction of
the Protection of Children from Sexual Offences Act, 2012.

The Act defines a Child as any person below eighteen years of age, and
regards the best interests and well-being of the child as being of paramount
importance at every stage, to ensure the healthy physical, emotional,
intellectual and social development of the child.
It defines different forms of sexual abuse, including penetrative and non-
penetrative assault, as well as sexual harassment and pornography, and
deems a sexual assault to be aggravated under certain circumstances,
such as when the abused child is mentally ill or when the abuse is
committed by a person in a position of trust or authority vis--vis the child,
like a family member, police officer, teacher, or doctor.
People who traffic children for sexual purposes are also punishable under
the provisions relating to abetment in the Act. The Act prescribes stringent
punishment graded as per the gravity of the offence, with a maximum term
of rigorous imprisonment for life, and fine.

Punishments for Offences under this Act

Under section 3, Penetrative Sexual Assault which is punishable under
section 4 Not less than seven years which may extend to imprisonment for
life, and fine.
Under section 5,Aggravated Penetrative Sexual Assault which is
punishable under section 6 not less than ten years which may extend to
imprisonment for life, and fine.

78
Under section 7, Sexual Assault which is punishable under section 8 Not
less than three years which may extend to five years, and fine.

Under section 9, Aggravated Sexual Assault which is punishable under

section 10 Not less than five years which may extend to seven years, and
fine.

Under section 11, Sexual Harassment of the Child which is punishable

under section 12 Three years and fine.

Under section 13, Use of Child for Pornographic Purposes which is

punishable under section 14 Five years and fine and in the event of
subsequent conviction, seven years and fine. 1

Provisions related to conduct of trial of reported offences

The Act provides for the establishment of Special Courts for trial of
offences under the Act, keeping the best interest of the child as of
paramount importance at every stage of the judicial process.
The Act incorporates child friendly procedures for reporting, recording of
evidence, investigation and trial of offences. These include:
Only unmarried Hindu women can legally adopt a child. A married woman
can only give her consent to adoption by her husband. A married woman
whose husband adopts a child is to be considered the mother. If the child
is adopted and there are more than one wife living in the household, then
the senior wife is classified as the legal mother of the adopted child.
Police officer to not be in uniform while recording the statement of the child.
The statement of the child to be recorded as spoken by the child.
Assistance of an interpreter or translator or an expert as per the need of the
child.

1. Chapter 2, of the protection of children form sexual offence act,

2012

79
Assistance of special educator or any person familiar with the manner of
communication of the child in case child is disabled Medical examination of
the child to be conducted in the presence of the parent of the child or any
other person in whom the child has trust or confidence. In case the victim is
a girl child, the medical examination shall be conducted by a woman
doctor. 13. Frequent breaks for the child during trial. Child not to be called
repeatedly to testify. No aggressive questioning or character assassination
of the child in-camera trial of cases.
The Act recognizes that the Intent to commit an offence, even when
unsuccessful for whatever reason, needs to be penalized.
The attempt to commit an offence under the Act has been made liable for
punishment for up to half the punishment prescribed for the commission of
the offence.
The Act also provides for punishment for abetment of the offence, which is
the same as for the commission of the offence. The Act makes it
mandatory to report commission of an offence and also the recording of
complaint and failure to do so would make a person liable for punishment
of imprisonment for six months or / and with fine. It is a Punishable action if
Police / Special Juvenile Police Unit fail to report a commission of the
offence under this Act Section- 21
For the more heinous offences of Penetrative Sexual Assault, Aggravated
Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual
Assault, the burden of proof is shifted to the accused. This provision has
been made keeping in view the greater vulnerability and innocence of
children.
To prevent misuse of the law, punishment has been provided for making
false complaint or proving false information with malicious intent. Such
punishment has been kept relatively light six months to encourage
reporting. If false complaint is made against a child, punishment is higher
one year Section 22.
The media has been barred from disclosing the identity of the child without
the permission of the Special Court. The punishment for breaching this
provision by media may be from six months to one year Section 23.
For speedy trial, the Act provides for the evidence of the child to be
recorded within a period of 30 days. Also, the Special Court is to complete
the trial within a period of one year, as far as possible Section 35.
To provide for relief and rehabilitation of the child, as soon as the complaint
is made to the Special Juvenile Police Unit or local police, these will make
immediate arrangements to give the child, care and protection such as
80
admitting the child into shelter home or to the nearest hospital within
twenty-four hours of the report. The Special Juvenile Police Unit or the local
police are also required to report the matter to the Child Welfare Committee
within 24 hours of recording the complaint, for long term rehabilitation of the
child.
The Act casts a duty on the Central and State Governments to spread
awareness through media including the television, radio and the print
media at regular intervals to make the general public, children as well as
their parents and guardians aware of the provisions of this Act.
Where an act or omission constitutes an offence punishable under this Act
and also under sections 166A, 354A, 354B, 354C, 354D, 370,370A, 375,
376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45
of 1860),then, notwithstanding anything contained in any law for the time
being in force, the offender found guilty of such offence shall be liable to
punishment under this Act or under the Indian Penal Code as provides for
punishment which is greater in degree."
The Provisions of this Act is in addition to and not in derogation of any
other provisions of any other Law. In case of any consistency the
provisions of this act will have an overriding effect on any other provisions.
The Act is only applicable to child survivors and adult offenders. In case
two children have sexual relations with each other, or in case a child
perpetrates a sexual offence on an adult, the Juvenile Justice (Care and
Protection of Children) Act, 2000, will apply.

4.2.16 - Right to food legislation and children

Children are at a higher risk of becoming malnutrition and malnutrition has
severe affects on children's development both physical and mental. Hence
both the UNCRC and the International Covenant on Economic, Social and
Cultural Rights outline children's right to food. There are a number of
constitutions in the world that safeguard a child's right to food. Such as
article 44 of the Columbia constitution states "Children have fundamental
rights to: life, integrity, health and social security, adequate food".

The Right to food legislation in India is an innovative new social security

scheme being introduced by the UPA Government. A food security act has

81
the potential to change the face of poverty and hunger in India.
The National Food Security Bill followed from the National Food Security
Ordinance, 2013 that was promulgated by the Government of India on July
5. After being introduced in both Houses of Parliament, the National Food
Security Act, 2013 was passed in 10th September, 2013 with the objective
to provide for food and nutritional security in human life cycle approach, by
ensuring access to adequate quantity of quality food at affordable prices to
people to live a life with dignity. It was signed into law on September 12,
2013, retroactive to July 5, 2013.

The National Food Security Act, 2013 also called as The Right to Food
Act aims to provide subsidized food grains to two thirds of India's 1.2
billion people. The Act categorizes the population into an Antyodaya Anna
Yojana group, a priority group and an excluded category. The Antyodaya
Anna Yojana is a scheme launched by the Central Government in
2000.The excluded category is retained at 25 per cent of the rural and 50
per cent of the urban population. The Antyodaya anna yojana category will
be as per existing norms (about 10 per cent of all households). The Act
provides different entitlements to groups. The poorest of the poor (the AAY
group) will receive 35 kg of food grain/family/month while others (the
priority group) will receive 5 kg of food grain/person/month.

The Act envisages covering upto 75% of the rural population and 50% of
the urban population under TPDS, with uniform entitlement of 5 kg per
person per month. However, since Antyodaya Anna Yojana (AAY)
households constitute poorest of the poor, and are presently entitled to 35
kg per household per month, entitlement of existing AAY households will be
protected at 35 kg per household per month.

Importantly, it includes the Midday Meal Scheme, Integrated Child

Development Services scheme and the Public Distribution System. Further,
the NFSA 2013 recognizes maternity entitlements. The Act also has a
special focus on the nutritional support to women and children. Besides
meal to pregnant women and lactating mothers during pregnancy and six
months after the child birth, such women will also be entitled to receive
maternity benefit of not less than Rs. 6,000. Children upto 14 years of age

82
will be entitled to nutritious meals as per the prescribed nutritional
standards. In case of non-supply of entitled food grains or meals, the
beneficiaries will receive food security allowance.

The Midday Meal Scheme and the Integrated Child Development Services
Scheme are universal in nature whereas the PDS will reach about two-
thirds of the population (75% in rural areas and 50% in urban areas). The
Section 2(11) of the Act states that a meal means a hot-cooked meal or
pre-cooked and heated meal or take home ration, as may be prescribed by
the Central Government. Children aged six months to 14 years will get
take-home rations or hot cooked food.

The obligations of both the Centre and State governments have been
differentiated in the Act. The centre will allocate food grains to states based
on the number of persons to be covered in each state. However, if the
annual allocation to a state is less than the quantity of food grains it lifts
from the central stocks for the last three years under the existing TPDS
(Targeted Public Distribution system, the same shall be protected at prices
determined by the Centre. The Act specifies the quantity of allocation to
states. The Act specifies that the Centre will provide states with funds in
case of short supply of food grains. The Centre shall also provide
assistance to state governments for meeting their expenditure on intra-
state movement, handling of food grains, and margins paid to fair price
shop dealers.

The Act also contains provisions for setting up of grievance redressal

mechanism at the District and State levels. Separate provisions have also
been made in the Act for ensuring transparency and accountability. The
Chapter IX provides a grievance redressed system. Vigilance committees
have also been established at the state, district, and block and ration shop
levels. The bill also contains provisions for social audits.

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4.2.17 - The Beedi and Cigar Workers (Conditions of
Employment) Act, 1966

The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 is a

spedial enactment to regulate the conditions of work of beedi and cigar
workers. Where a large number of children work and are being exploited.

According to this Act, no child, below the age of 14 years shall be

employed in and industrial premises. The provisions of the Act children who
have completed the age of 14 years but not 18 years may be allowed to
work. Under Section 25 of the Act it is provided that no young person shall
be required to work in any industrial premises except between 6 a.m. and 7
p.m. This it prohibits employment during the night.

4.2.18 - The Juvenil Justice (Care & Protection of Children)

Act, 2015
First legislation on juvenile justice in India came in 1850 with the Apprentice
Act which required that children between the ages of 10-18 convicted in
courts to be provided vocational training as part of their rehabilitation
process. This act was transplanted by the Reformatory Schools Act, 1897,
the Indian Jail Committee and later the Children Act of 1960 the first proper
intervention by the government of India in justice for children was via the
National Childrens Act, 1960. This act was replaced later with Juvenile
Justice Act, 1986. In 1992, India ratified the United Nations Convention on
the Rights of the Child .To adapt to the standards of the convention, the
1986 act was repealed and the Act, 2000 was passed. The Act 2000 dealt
with two categories of children viz. child in conflict with law and child in
need of care and protection' .The said act came to be amended from time
to time to incorporate new provisions and concepts relating to a child.

Need of New Juvenile Justice Enactment of 2015

The Articles 15(3), 39 (e) and (f), 45 and 47 of the Constitution of India
confer powers and impose duties on the State to ensure that all the needs
of the children are met and their basic rights are fully protected. It was the

84
need of the time to re-enact the Juvenile Justice Act, 2000 taking into
consideration various international conventions. The concept of juvenile in
India, until passing of Children Act, 1960 there was no uniformity regarding
age limitation of juvenile delinquent. Bombay Children Act, 1948, Haryana
Children Act defined Child to mean a boy who has not attained the age of
sixteen years or girl who has not attained age of eighteen years. The U.P.
Children Act and The East Punjab Act, Andhra Pradesh (Telangana Area)
Children Act defined Child as a person under age of sixteen years. Under
A.P. Children Act ,1920 child means a person under 14 years. The
Saurashtra & West Bengal defines a 'child a person who has not attained
the age of eighteen years. Juvenile Justice Act, 1986 defined a juvenile or
child to be a person who in case of a boy has not completed age of 16
years and in case of a girl 18 years of age. The JJA Act, 1986 was
repealed by 2000 Act and the distinction with regard to age between male
and female juveniles has been done away with by the Government of India
in performance of its obligation to the international obligations. Now age of
juvenile in conflict with law for male and female has been fixed at 18 years.
The National Crime Record Bureau data shows that there had been an
increase of offences committed by juvenile, especially in the age group of
1618. One of the preparatory in the Delhi gang rape of 2012 was few
months short of 18 years age and he was tried as juvenile. He was sent to
Reformation Home for 03 years and was released in December, 2015. This
had raised the public demand for lowering age of juvenile under the Act.
The provisions of this new enactment is basically generally highlighted only
for the aspect of a much contemplated change in the definition of a child in
conflict in law and mark- classification based on age and understanding of
offence. This would be indeed injustice to the legislators and the makers of
this excellent legislation relating to child welfare. Therefore, the Act, 2015
has been enacted. The Juvenile Justice (Care and Protection of Children)
Act 2015 will be enforceable from January 15, 2016.The Act, passed by the
Rajya Sabha in the winter session of Parliament, received Hon'ble
President's assent on December 31 2015

Child Ascertainment

Issue of the Child is one of the most vexed and critical issue in
implementation of the Act. The crucial date for determining the claim of

85
child is the date of commission of the offence and not the date or arrest or
production of juvenile before the Juvenile Justice Board. Pratap Sing Vs.
State of Jharkhand, 1 As per Section 9 of the New Act, the Magistrate who
is not empowered to exercise the power of Juvenile Justice Board under
this Section, is of the opinion that a person brought or appearing before him
with allegations of having committed any offence is a juvenile, then he shall
without any delay, and without waiting for such person to raise claim of
juvenility, ascertain the age of that person and record its opinion and
forward the juvenile along with record to the Juvenile Justice Board, having
jurisdiction over the proceeding. In Hari Ram v. State of Rajasthan and Anr.
(2009) 13 SCC 211. Hon'ble Supreme Court of India took the view that the
Constitution Bench judgment in Pratap Singh case was no longer relevant
since it was under the unamended Act. In Hari Ram while examining the
scope of Section 7A of the Act, it is held that the claim of juvenility can be
raised before any court at any stage and such claim was required to be
determined in terms of the provisions contained in the 2000 Act and the
Rules framed there under, even if the juvenile had ceased to be so on or
before the date of commencement of the Act. Further, it was also held that
on a conjoint reading of sections 2(k), 2(l), 7A, 20 and Rules 12 and 98
places beyond all doubt that all persons who were below the age of 18
years on the date of commission of the offence even prior to 1.4.2001
would be treated as juveniles even if the claim of juvenility was raised after
they had attained the age of 18 years on or before the date of
commencement of the Act and were undergoing sentence upon being
convicted. In Dharambir v. State and Anr (2010) 5 SCC 344 The Appellant
was not a juvenile within the meaning of 1986 Act, when the offences were
committed but had not completed 18 years of age on that date. Section 20
also enables the Court to consider and determine the juvenility of a person
even after conviction by the regular court and also empowers the Court,
while maintaining the conviction to set aside the sentence imposed and
forward the case to the Board concerned for passing sentence in
accordance with the provisions of the 2000 Act.

1. AIR 2005 SC 2731

86
Age Determination

Determining the age, as observed by the Honourable Apex Court in

Rajinder Chandra vs. State of chhatisgarh, 1 the approach of the Courts or
Juvenile Justice Board should not be hyper technical. It obliges the court
only to make an inquiry, not an investigation or a trial, an inquiry not under
the Code of Criminal Procedure, but under the J.J. Act. Criminal Courts, JJ
Board, Committees etc., we have noticed, proceed as if they are
conducting a trial, inquiry, enquiry or investigation as per the Code Section
94 has also used certain expressions which are also be borne in mind. It
uses the expression "on the basis appearance. Further, the age
determination inquiry has to be completed and age be determined within
fifteen days which is also an indication of the manner in which the inquiry
has to be conducted and completed. "Age determination inquiry"
contemplated under section 94 of the Act enables the court to seek
evidence and in that process, the court can obtain the matriculation or
equivalent certificates, if available. Only in the absence of any matriculation
or equivalent certificates, the court need obtain the date of birth certificate
from the school first attended other than a play school. Only in the absence
of matriculation or equivalent certificate or the date of birth certificate from
the school first attended, the court need obtain the birth certificate given by
a corporation or a municipal authority or a panchayat (not an affidavit but
certificates or documents). In case exact assessment of the age cannot be
done, then the court, for reasons to be recorded, may, if considered
necessary, give the benefit to the child or juvenile by considering his or her
age on lower side within the margin of one year.

Bail grant to child

In normal course, a juvenile is entitled to bail, notwithstanding gravity of
the crime. His bail can be refused only when there are reasonable grounds
for believing that his release is likely to bring into association with any
known criminal or expose his moral, physical or psychological danger or
that his release would defeat the ends of justice.

1. AIR 2002 SC 748

87
It may be pointed out that the Hon'ble Supreme Court has held in the case
of Sukhwant Sing & ors. Vs. State of Punjab, 1 that when there is power to
grant bail, there is inherent power to the court concerned to grant interim
bail to the person, pending final disposal of the bail application and it is in
the discretion of the concerned Court to grant interim bail. The same is
applicable to the Juvenile Justice Board. When pending final disposal of the
application, juvenile may be released on interim bail.

Change brought about because of nirbya case

New Act classifies offences. A 'heinous offence' is offence with minimum
punishment of seven years of im- prisonment or more. A 'serious offence'
are offences with three to seven years of imprisonment and a 'petty
offence' is with a less than three year imprisonment. It treats all the children
below 18 years equally,

Essential to try the offence as adult

The Childress Court to Decide the whether the child is to be tried as an
adult if age group of child is 16-18 committed heinous crime having
minimum imprisonment of more than seven years . or, who commits a
serious offence, may be tried as an adult if he is apprehended after the age
of 21 years. The Board on inquiry and assessment of child of his mental
and physical capacity to commit such offence, ability to understand
consequences of such offence and circumstances in which he allegedly
committed an offence will conduct a preliminary inquiry of a crime
committed by a child within a specified time period and decides whether he
should be sent to rehabilitation center or sent to a childrens court to be
tried as an adult. The board can take the help of psychologists and psycho-
social workers and other experts to take the decision. Such an inquiry is to
be completed within a period of four months from the date of first
production of the child before the Board, unless the period is extended, for
a maximum period of two more months by the Board, having regard to the
circumstances of the case and after recording the reasons in writing for
such extension. If inquiry by the Board for petty offences remains
inconclusive even after the extended period, the proceedings shall stand
terminated.

1. (2009) 7 SCC 559

88
Procedure of inquiry and trial

Cases of petty offences, under section 14(d) shall be disposed of by the

Board through summary proceedings, as per the procedure prescribed
under the Code of Criminal Procedure 1973; inquiry of serious offences
shall be disposed of by the Board, by following the procedure, for trial in
summons cases under the Code of Criminal Procedure, 1973 inquiry of
heinous offences (i) for child below the age of sixteen years as on the date
of commission of an offence shall be disposed of by the Board under
clause ; (ii) for child above the age of sixteen years as on the date of
commission of an offence shall be dealt with in the manner prescribed
under section 15. Under Offence. Penalty .Prohibition on disclosure of
identity of children. Imprisonment for a term which may extend to six
months or fine which may extend to two lakh rupees or both. Giving a child
any intoxicating liquor/narcotic drug/tobacco/ psychotropic substances.
Imprisonment: up to seven years; Fine up to one lakh rupees. Selling or
buying a child. Imprisonment: up to five years; fine: one lakh rupees.
Subjecting a child to cruelty. Imprisonment up to three years fine and/or
one lakh rupees. Employing a child for begging. Imprisonment up to five
years; fine: one lakh rupees. 6. Engaging a child and keeps him in bondage
for the purpose of employment or withholds his earnings or uses such
earning for his own purposes. Rigorous imprisonment for a term which may
extent to five years and shall also be liable to fine of one lakh rupees.
Punitive measures for adoption without following prescribed procedures.
Imprisonment of either description for a term which may extend up to three
years, or with fine of one lakh rupees, or with both. If information regarding
a child as required under Section 32 is not given within the period specified
in the said Section, then, such act shall be regarded as an offence.
Imprisonment up to six months or fine of ten thousand rupees or both.
Failure to comply with Section 41 (1) Registration of Child Care Institutions.
Imprisonment up to one year or minimum fine of one lakh rupees or both.
Child Welfare Committee Chapter 5 of the act provides for constitution of a
Child Welfare Committee for exercising the powers and to discharge the
duties conferred on such Committees in relation to children in need of care
and protection under this Act and ensure that induction training and
sensitization of all members of the committee is provided within two months
from the date of notification. Welfare measures for 'child in need of care

89
and protection' new categories child in need of care and protection
includes like missing child , a child who is to be married Recognition of
support after 18 years also aftercare means making provision of support,
financial or otherwise, to persons, who have completed the age of eighteen
years but have not completed the age of twenty-one years, and have left
any institutional care to join the mainstream of the society Statutory
Definition of best interest child friendly best interest of child means the
basis for any decision taken regarding the child, to ensure fulfillment of his
basic rights and needs, identity, social well-being and physical, emotional
and intellectual development; child friendly means any behavior, conduct,
practice, process, attitude, environment or treatment that is humane,
considerate and in the best interest of the child; New concept of Aid
created .Sponsorship means provision of supplementary support,
financial or otherwise, to the families to meet the medical, educational and
developmental needs of the child new welfare institutions established
Sections 43 and 44 provide for the constitution of open shelters and foster
homes respectively by the State Government for case and protection of the
child. Section 47 of the act enables the State Government to establish such
observation homes in every district as it deems fit for temporary reception,
care and rehabilitation of any child alleged to be in conflict with law, during
the pendency of any inquiry under this Act. Several rehabilitation and social
reintegration measures have been provided for children in conflict with law
and those in need of care and protection. Under the institutional care,
children are provided with various services including education, health,
nutrition, de-addiction, treatment of diseases, vocational training, skill
development, life skill education, counseling, etc to help them assume a
constructive role in the soci- The variety of non-institutional options include:
sponsorship and foster care including group foster care for placing children
in a family environment which is other than childs biological family, which is
to be selected, qualified, approved and supervised for providing care to
children. Section 48 of the act enables the State Government to establish
such safety homes in every district as deems fit for rehabilitation of those
children in conflict with law who are found to have committed an offence
and who are placed there by an order of the Juvenile Justice Board.
Confidentiality Section 74 prohibits the disclosure of identity of children with
respect to their name, address, school or any other particular in
newspapers or any other media. Principles to be followed before the
authorities when relating to child 3 As per section section 3 of the new Act
The Central Government, the State Governments, the Board, and other
90
agencies, as the case may be, while implementing the provisions of this Act
shall be guided by the following fundamental principles, namely: (i)
Principle of presumption of innocence (iii) Principle of participation. (iv)
Principle of best interest. (v) Principle of family responsibility. (vi) Principle
of safety. (vii) Positive measures. (viii) Principle of non-stigmatizing
semantics. (ix) Principle of non-waiver of rights. (x) Principle of equality and
non-discrimination. (xi) Principle of right to privacy and confidentiality. (xii)
Principle of institutionalization as a measure of last resort. (xiii) Principle of
repatriation and restoration. (xiv) Principle of fresh start. (xv) Principle of
diversion. (xvi) Principles of natural justice.

Adoption

Chapter 8 of the act deals with provisions with respect to Eligibility of

adoptive parents and the procedure for adoption. To streamline adoption
procedures for orphan, abandoned and surrendered children, the existing
Central Adoption Resource Authority is given the status of a statutory body
to enable it to perform its function more effectively. Separate chapter (VIII)
on Adoption provides for detailed provisions relating to adoption and
punishments for not complying with the laid down procedure. Processes
have been streamlined with timelines for both in-country and inter-country
adoption including declaring a child legally free for adoption. Various
categories of child recognized to regularize and ease the process of
adoption abandoned child means a child deserted by his biological or
adoptive parents or guardians, who has been declared as abandoned by
the Committee after due inquiry orphan means a child (i ) who is
without biological or adoptive parents or legal guardian; or (ii ) whose legal
guardian is not willing to take, or capable of taking care of the child
surrendered child means a child, who is relinquished by the parent or
guardian to the Committee, on account of physical, emotional and social
factors beyond their control, and declared as such by the Committee
adoption Legitimate changed to lawful rights of child recognized not
relationship Adoption rules adoption regulations new statutory recognition
given to adoption rules Sec 57 New category of adoptive parents
recognized .Adoptive parents should be financially mentally and physically
sound and highly motivated for upbringing child.

91
CHAPTER 5
Judicial Decisions

Many courts play a principal role in making decisions regarding the

protection of children who have been maltreated provide professionals
involved in child protection with recourse and information about the legal
process in child abuse and neglect cases. Including information about
cases involving exploitation, violence, abuse against children commercial
sexual exploitation, trafficking, child labor and harmful traditional etc.

Laxmikant Pandey v. union of India

In this case Supreme Court decided the legality of adoption of Indian
children by foreign parents. In this case the petitioner alleged that the
Indian children of tender age were taken by foreigners to their country in
this guise of adoption and they were subject to harassment and abuse in
that country. Therefore this practice should be banned; the Supreme Court
laid down the following directive-

1.The foreign parents who desire to take an Indian child in adoption before
taking the child to the foreigner country, has first to become the guardian of
that child and keep him in custody for at least one month.

2. The institution scrutinizing the compliance of the above condition by the

foreign parents shall be duly embarrassed for the expenses incurred on this
account.

3. The hospitals and maternity homes were directed that they should give
the information about neglect or deserted children to the social welfare
department or the district magistrate the these children may be made
available to foreign parents for adoption.

1. AIR 1984 SC 469

92
Sheela Barse v. Union of India
In this cases apex court issued direction to the state to ensure that the
children are not exploited and laws meant for their welfare are properly
enforced and implemented.

Mauna v. state of Uttar Pradesh

In this case petitioner complained to the court that some juvenile under trial
were kept in Kanpur central jail instead of lodging them in children home
and they were being exploitation by hardened adult prisoner for satisfying
their sexual lust. Therefore they should be order to be removed from the
central jail and shifted to some reformative home. The court held that it
cannot afford to ignore the vital interest of the child and juvenile prisoners
and juvenile prisoner and ordered that they should be transferred to some
reformatory home in order to prevent them from sexual exploitation and
inhuman treatment by the adult prisoners.

Sushila Gothala v. State of Rajasthan

In this case high court held that there is no point in issuing fresh direction to
the government to prevent child marriages the state was already alive to
this problem and taking necessary steps marriages. The court noted that
child marriage is a social evil which cannot be eradicated by enacting law.
Unless the people themselves are willing to abandon it as a social evil. The
court suggested that committees at district, block, and village levels be
formed consisting of social workers, journalist, revenue official officials ect.
Who should mobilize public opinion against child marriage.

1. AIR 1986 SCC 596

2. AIR 1982 SC 1213
3. AIR 1995

93
Rosy Jacob v. A. Chakramakkal
In this cases the Supreme Court held that dominant consideration for
making an order under section 25 of the act is the welfare of the minor child
and in consideration this question due regard has to be paid having a
bearing on the minor welfare. The father fitness has to be consideration.
Determined and weighed predominantly in term of the welfare of his minor
children in the context of all relevant circumstance. if the custody of the
father cannot promote their welfare equally or better than the custody of the
mother then he cannot claim indefeasible right to their custody merely
because there is no defect in his personal character and he has attachment
for the children . No doubt the father has been resumed by the statute
generally to be better fitted to look after the children but the court has to
see primarily to the welfare of the children in determining the question of
their health, maintenance and education. It was also held that the order
relating to the custody of children are by their very nature not final but are
interlocutory in nature and subject to modification at any future time upon
proof of change of circumstance requiring changes of custody , but change
in custody must be proved to be in the interest of the child .

R.V. Srinath Prasad v. Nandamuri Jayakrishan

In this cases supreme court held that the custody of minor children is a
sensitive issue. It is also a matter involving sentimental attachment. Such a
matter is to be approached and tackled carefully. A balance has to be
struck between the attachment and sentiments of the parties toward the
minor children and welfare of the minor which is of paramount importance.

1. AIR 1973 SC 2090

2. AIR 2001 SC 1056

94
Devgouda Rajgouda Patel v. Shamgouda
In this case the Bombay high court held that a lunatic can also be adopted
under the present law. There is no such incapacity with such child which
prevents him from being adopted. In an act of adoption motive is irrelevant.
The legal effect of an adoption cannot be avoided on the ground that the
adoption was intended to deprive the adopted child from getting property in
the family of his birth.

Prafulla kumar Biswal v. Sasi Bewa

In this case the Orissa high court held has the capacity of a Hindu to
adopted a son or a daughter is circumscribed in so for as he has no right to
adopt excepted with the consent of the wife, although the consent need not
necessarily be expressed and may be by necessarily implication or can be
inferred from the facts and circumstance o the case. When the first wife
living nether neither consented for adoption nor participated in the
proceeding of adoption being made by a male Hindu such adoption was
held to be not valid.

Sita Bai V. Ramachandra

In this case Supreme Court held that the for a valid adoption mere giving
and taking is not sufficient unless such giving and taking is done with the in
tent of transferring the child from the family of its birth to that of his
adoption. The effect of adoption is that the ties of the adoption child in his
family of birth are severed and replace by those of the adoption family.

1. AIR 1992 Bom 189

2. AIR 1990 NOC 13 Ori
3. AIR 1970 SC 343

95
Vishal Jeet v. Union of India

The Supreme Court referred to Article 23 of the constitution, which prohibits

traffic in human beings, and clause (e) of Article 3 9, which inter alia,
provides that the tender age of children is not abused and the citizens are
not forced by economic necessity to enter The observation of Justice P.N.
Bhagwati in Peoples' Union for Democratic Rights vs Union of India,
Gaurav Jain vs UOI, AIR, 1990, SC 292. Work unsuited to their age of
strength. The Supreme Court also referred to clause (i) of Article 39, which,
inter alia, provides that childhood and youth are protected against
exploitation and against moral and mental abandonment. These provisions
show that the framers of the constitution were anxious to protect and
safeguard the welfare of children.

Daljit Singh v. State of Punjab

Crimes before the coming of the Juvenile Justice Act, 1986 there were
different State enactments operative in different States. Haryana Children
Act was applicable to the State of Haryana. Madras Children Act was
enforced having been adopted in the State of Madras. West Bengal
Children Act was prevailing in West Bengal. Similarly Bihar Children Act
was there in the State of Bihar. All these enactments were made to deal
with a child offender as termed under the respective Acts and now such
child offender has been termed as a delinquent juvenile under this Act No.
53 of 1986 (The Juvenile Justice Act). It is undoubtedly clear that the
Juvenile Justice Act, 1986 is a complete Code in itself and has sweeping
overriding effect on any other enactment of the State legislature or
Parliament, the 'Code' regarding the enquiry/proceeding or a trial against
delinquent juvenile or any other criminal charge.

1. AIR 1990 SC 1412

2. AIR 1992

96
Parasram v. Narayani Devi
In this case court held that the child marriage restraint act does contain
provision to ban such marriage but it no where specific that child marriage
shall be unlawful or invalid. Therefore, there is needed to take note of this
deficiency of the act.

Krishna Bhagwan v. State of Bihar

The Full Bench of the Patna High Court held that: "It cannot be disputed
that boys below 16 years and girls below 18 years of age, accused of
different offences, can be treated as a class being of tender age and of
immature mind. In the atmosphere prevailing in society, many of them are
themselves victims of society not having got proper care, affection, training
or having come in contact with evil elements of the society of today. The
legislature can provide for special treatment of such accused persons with
an object that they should be reformed so that later they can lead a normal
life in society.

Rajinder Chandra v. State of Chattisgarh

Where the age of the accused was just on the border of sixteen years. The
date of birth of the accused was doubted by the trial court and the Sessions
Court due to overwriting in his school mark sheet. The ossification test
report was to the effect that the accused was about 16 years old but the
Sessions Court did not find it proper to hold the accused to be a juvenile on
the basis of the said report as variation of 2-3 years on either side is
permissible. The High Court noticed that although in the mark sheet of
class VIII there appeared to be some overwriting the same was attested by
the office which issued it.

1. AIR 1972
2. AIR 1989
3. (2000)2 SCC 287

97
A legal day commences at 12 O clock mid- night and continues until the
same hour the following night. Thus, when the accused was born on 10-5-
1978,the said was to be counted as a whole day and it could not be said
that he had attained the age of 16 years before 12 O clock in the mid-night
of the previous day, i.e., 9-5-1994. The offence being committed at about
1.00 p.m. on 9-5-1994, he was a juvenile at the time of offence
EeratiLaxman V State of A.P.AIR2009 SC1816. 114 Procedure to be
followed by a Board in holding inquiries and the determination of age in
every case concerning a juvenile or a child the Board shall either obtain- (i)
a birth certificate given by a corporation or a municipal authority; or (ii) a
date of birth certificate from the school first attended; or (iii) matriculation or
equivalent certificates, if available; and (iv) in the absence of (i) to (iii)
above, the medical opinion by a duly constituted Medical Board, subject to
a margin of one year, in deserving cases for the reasons to be recorded by
such Medical Board. Regarding his age and. when passing orders in such
case shall, after taking into consideration such evidence as may be
available or the medical opinion, as the case may be record a finding in
respect of his age). In the absence of birth or matriculation certificate, in
order to record a finding in respect of an age of a person, the Board is
required to obtain the opinion of a duly constituted Medical Board. It is clear
from a bare reading of the Rule 22 of the Jharkhand Juvenile Justice (Care
and Protection) Rules (2003) that although the Board is bound to obtain the
opinion of the Medical Board but the opinion per se is not a conclusive
proof of age of the person concerned. It is no more than opinion. More so,
when even the Medico-Legal opinion is that owing to the variation in
climatic, deistic, hereditary and other factors, affecting the people of
different States in the country, it would be imprudent to formulate a uniform
standard for the determination of the age. True, that a Medical Board's
opinion based on the radiological examination is a useful guiding factor for
determining the age of a person but is not incontrovertible.

98
Lalitha Ulahayakar v. Union of India
In this case held by the Karnataka high court that before adoption by wife
under section 7 of the Hindu adoption and maintenance act, consent of
husband is required and this is not violative of article 14 of the constitution

Neerja Chaudhary vs. State of Madhya Pradesh

Under this case the judiciary has taken a serious note of the indifferent and
callous attitude of the State Administration in identifying, releasing and
rehabilitating the bonded labourers in the country. The present case is
based on a letter of September 20, 1982 addressed to one of the judges of
the apex court by a petitioner who is a civil rights correspondent of
Statesman in an article written by her and published in the issue of
Statesman dated 14th September, 1982 in which she set out how these
bonded labourers were without land and work, facing immense hardship
and starvation in the absence of any rehabilitation assistance by the State
Government. It seems that once these freed bonded labourers were
brought back to their villages, the administration of the State Government
thought they had discharged their duty and then they conveniently forgot
about the existence of this unfortunate specimen of humanity. When the
petitioner interviewed some of these bonded labourers they said that they
would rather go back to the stone quarries for work than starve and added
we might have been killed there, but we are also dying here. The
petitioner pointed out this statement in the leading newspaper in the
country.

1. AIR 1991 Kant 186

2. AIR 1984 SC 1099

99
But when she visited three villages AIR 1984 SC 1099. 185 Kunda,
Pandhari and Bhairavapura in Mungeli Taluka of Bilaspur District in
September 1982, with a view to ascertain whether or not the process of
rehabilitation as promised by the Chief Minister had commenced, she found
that most of the released bonded labourers belonged to these three village
had not yet been rehabilitated though six months have passed since their
release and they are living almost on the verge of starvation. It may be
pointed out that out of 135 released bonded labourers, about 75 belonged
to these three villages and 45 out of them were from village Kunda. The
petitioner also pointed out that some of the released bonded labourers
owned land at one time but they had lost it to the money lender and some
of them had pledged their jewellery and other small belonging to raise
money for their subsistence. Therefore, the petitioner argued that it was
statutory obligation of the State Government to ensure rehabilitation of the
free bonded labourers and failure to do the same amounted to violation of
the fundamental right of the freed bonded labourers under Article 21 of the
Constitution. The petitioner prayed for a direction to the State Government
to take steps for the economic and social rehabilitation of the freed bonded
labourers released in March, 1982. When the writ petition came up for
preliminary hearing, the court asked the State Government for providing
information regarding the framing of scheme for rehabilitation including
constitution of vigilance committee as well as the steps taken for
rehabilitating 135 released labourers living in the village in Mungeli Taluka
of District Bilaspur. An affidavit was filed by the Assistant Labour
Commission informing the court of the various steps taken by the State
Government for identification, release and rehabilitation of bonded
labourers. The court expressed its disapproval of the information supplied
by the State Government. It found that the attitude of the State government
was indifferent and the State was not willing to admit the existence of
bonded labour as according to it unless a workmen was able to show that
he is forced to provide labour to the employer in lieu of an advance
received by him, he cannot be regarded as a bonded labourers .

100
M.C. Mehta vs. State of Tamil Nadu and others.
Supreme Court held that working conditions in the match factories are such
that they involve health hazards in normal course and apart from the
special risk involved in the process of manufacturing, the adverse effect is
a serious problem. Exposure of tender aged to these hazards requires
special attention. We are of the view that employment of children in match
factories directly connected with the manufacturing process like uplift of
final production of match sticks or fireworks should not, at all, be permitted
as Article 39 (f) prohibits it.186 In this case, Mehtas 1983 petition was first
resolved by the Supreme Court of India in the year 1990. Mehta argued
that the employment of children in the match and fireworks industry in
Sivakasi was a violation of Indians. Constitution, the Factories Act, 1948
the Minimum Wages Act, and the Employment of Children Act. The Court,
consisting of Chief Justice Ranganath Misra and Justice M.H, Kania,
observed that employment of children in the match factories directly
connected with the manufacturing process upto final production of match
sticks and fireworks should not at all be permitted. The Court found that the
employment of children in the production of matches and fireworks violated
the spirit of the Constitution of India, in particular its Directive Principles of
State Policy. The Supreme Court relied on articles 39(f) and 45 in making
its judgment. The judgment has five important components : In line with
the Constitutions prohibition on the employment of children in hazardous
employment, the Supreme Court said that children can, therefore, be
employed in the process of packing but packing should be done in an area
away from the place of manufacture to avoid exposure to accident. The
Apex Court acknowledged that the Directive Principles of State Policy
recommend that children should be in school until the age of fourteen, but
economic necessity forces grown up children to seek employment. The
Apex Court ordered that children be paid sixty percent of prescribed
minimum wages for an adult employee in the factories doing the same job.

1. AIR 1991 SC 417

101
The Court believes that special education facilities both formal and job
training, recreation and specialization should be made to provide for the
quality of life of working children. To pay for these facilities, the Court
ordered the creation of a welfare fund, to which registered match factories
would be made to contribute. Upon the recommendation of the counsel for
the State of Tamil Nadu, the Court also ordered that the Government
should make a matching grant to the fund. The Supreme Court ordered the
State of Tamil Nadu to provide facilities for recreation and medical
attention. These facilities were to include provision of a basic diet during
the working period and medical care with a view to ensuring sound physical
growth. It was recommended that the state will work with UNICEF in
making these facilities available. The Court ordered the creation of a
compulsory insurance scheme for both adults and children employed in the
Sivakasi match factories. All employees were to be insured for fifty
thousand rupees, and the premiums were to be paid for by the employer.
The Court concluded its decision by awarding Mehta three thousand
rupees as costs. The other concern is that the Court appeared to give
credence to the nimble fingers theory of childrens work. It stated we take
note of the fact that the tender hands of the young workers are more suited
to sorting out the manufactured product and process it for the purposes of
packing. This nimble fingers theory has been criticized by a number of
human rights organizations, including Human Rights Watch. In this view,
child labor is not an evil, but a production necessity. This rationalization is a
lie. In fact, children make the cheaper goods; only master weavers make
the best quality carpets and saris. The Court did not create a disincentive
for employers violating the law or its order. Though the Court emphasized
that employers must play a role in maintaining the well-being of children at
work, either through an insurance scheme or contributing to the welfare
fund, it did not even mention the possible penalties they might incur for
either failing to pay children a minimum wage or employing children in the
manufacturing process. The Court further observed that the spirit of the
Constitution perhaps is that children should not be employed in factories as
childhood is the formative period and in terms of Article 45 they are meant
to be subjected to free and compulsory education, until they complete the
age of 14 years. Children can, therefore, be employed in the process of
102
packing but packing should be done in an area away from the place of
manufacture to avoid exposure to accident. The Honourable Supreme
Court further observed that the state (in this case Tamil Nadu) is directed to
enforce provisions relating to facilities for recreation and medical and
attention may be given to ensure provision of a basic diet during the
working period to workers including children and medical care with a view
to sound physical growth. The Court also opined that compulsory insurance
scheme should be provided for both adult and children employees for a
sum of Rs. 50000 by taking into consideration the hazardous nature of this
employment.198 It is submitted that The Factories Act 1948, states that No
child who has not completed his fourteenth year shall be required or
allowed to work in any factory. It is very strange how the Supreme Court
reconciled this prohibition on work in any factory with its decision to allow
children to work in factories, provided they are packing matches, and not
manufacturing them. The Government of India passed the Right to
Education Act in 2009 making education compulsory and free up to the Age
of 14 years and also included Art. 21A making Right to Education up to 14
years of age as Fundamental Right Sec. 67 Factories Act 1948. The
Courts decision was criticized on many accounts by number of human
rights organizations. The judgments is not progressive and, in fact,
incorrect at law. It is alleged that the Court again sought to balance the
childs economic needs against his or her fundamental rights rather than
prohibiting child labour. This decision, unlike the Courts previous order,
directly targeted the problem of poverty. It involved the state, employers,
families, and working children in a scheme to help reduce the causes of
child labour. The Court determined that if poverty is eradicated, child labour
will cease to exist. To this end, it hopes that state governments will replace
child workers with adult workers. The reasoning is that if there is a low
unemployment rate, then children will be less likely to have to work and
more likely to attend school. Alternatively, if no other employment is
available, then the hope is that the Welfare Fund will provide some income
to the family. In this decision, the Court was restrained in its policy-making
role. It did not disclose any of the loopholes in the Child Labour Act, though
it did acknowledge that such loopholes exist. This deference to the
legislature is in keeping with the Courts previous PIL decisions. On the
103
other hand, the Court did make substantial policy through the expansion of
the Welfare Fund. Though its aim appeared to be good, there have been
some problems with the scheme it has suggested. To begin, the income
generated from twenty-five thousand rupees is not enough to prevent
parents from putting their children to work. At current State Bank of India
interest rates, the annual income generated from the Fund will be 1562.50
rupees The Court recognized this fact in its decision As the aforesaid
income could not be enough to dissuade the parent / guardian to seek
employment of the child, the State owes a duty to come forward to
discharge its obligation in this regard. The Courts solution was its
recommendation regarding alternative employment for the childs family
members.

Salal Hydro Project vs. State of Jammu and Kashmir

In Tamil Nadu, this recommendation has not been implemented. The cost
of doing so is likely prohibitive. Employers do not want to employ adults, in
part because adult workers are subject to minimum wage and safety laws
and they are probably better versed in their rights as compared to children.

R.D. Upadhay vs. State of Andhra Pradesh and Others

In this case, Chief Justice of India Y.K Sabharwal, observed that Article 45
of our Constitution stipulates that the State shall endeavour to provide early
childhood care and education for all children until they complete the age of
six years. In this case the Apex Court also laid down a guideline for the
education and recreation for children of female prisoners.

1. AIR 1984 SC 177,

2. (2006)4 SCALE 336

104
The best interest of the child has been regarded

As a primary consideration in our Constitution. Article 15 prohibits

discrimination on grounds of religion, race, caste, sex or place of birth.
Article 15(3) provides that this shall not prevent the State from making any
special provision for women and children. Article 21A inserted by 86th
Constitutional Amendment provides for free and compulsory education to
all children of the age of six to fourteen years. Article 24 prohibits
employment of children below the age of fourteen years in any factory or
mine or engagement in other hazardous employment. The condition of not
permitting new school within the radius of 5 kms. of Goisting School is not
mandatory, held in Shikshan Prasarak Mandal, Pune vs. State of
Maharastra AIR 2010 Right to Education includes right to safe education,
held in Avinash Mehrotra vs. Union of India 2009 6 SCC 398.

Raj Kumar Tiwari vs. State

In this case the petitioner-employer was imposed Rs. 20000 as penalty for
employing a child alleged to be below the 14 years of age. He challenged
this order contending that before imposing penalty no enquiry was held.
The High Court, although found that an inquiry was indeed held, set aside
this impugned order on the ground that for the applicability of section 14 of
the Act it is sine qua non that the person / child employed must be one.
According to the court the impugned order itself in indicated that the child
was set side. It is submitted that there is a lot of difference between the
expression a person who has not completed 14 years of age and a person
who is 14 years old. While the latter would mean a person who has
completed 14 years of age and is in his 15th year, the former phrase would
mean a person who has completed 13 years of age and is in his 14th year.

1. AIR , 2003

105
is punished by the Court for employing a child. And this is a major
contributing factor for the continued employment of children by
unscrupulous employers.

Hemendera Bhai vs. State of Chattisgarh

In this case the petitioner facing a criminal proceeding under Section 482 of
the Criminal Procedure Code and Section 14 of the Child Labour
(Prohibition and Regulation) Act 1986. The learned counsel of the petitioner
submitted that the learned magistrate with out taking cognizance of the
offence alleged against him criminal proceeding which did not have any
reasonable cause and therefore he pray that the criminal. Proceeding
should be quashed. For supporting his argument the learned counsel of the
petitioner relied on the two decision of the apex court in which cognizance
taken by magistrate has been analyzed.

Pepsi Food Ltd. and another vs. Special Judicial Magistrate

and others
The court held that, summoning of an accused in a criminal case is a
serious matter. Criminal law cannot Motion as a matter of course. In the
present case, it is clear from the order sheet maintained by the learned
magistrate that he has not applied his mind to the facts of the case and the
law appropriate to the present case. He has not even stated that he had
perused, or read the charge sheets, which, which has to be treated as a
complaint filed by the Inspector under Section 16 of the Act. The apex court
had held that in the aforesaid two judgments that the magistrate has to
apply his mind to the facts of the case and the law applicable to the case,
which the learned magistrate has failed to do so in this case.

1. (2003)
2. AIR 1998

106
Section 3 of the Act says that no child shall be employed or permitted to
work in any of the occupations set forth in Part A of the schedule or in any
workshop wherein any processes set forth in part B of the Schedule is
carried on. From the facts of the case and document produced before this
court it is submitted that workers who are supplied raw materials for making
Bidis taking the raw materials from the firm after giving undertaking that
they themselves would make Bidis and if they roll Bidis in their respective
houses taking the assistance of their children, the firm cannot be held
responsible since the firm has no control or supervision over the work of
those workers who take raw material to their houses for making Bidis. It is
further stated that in the reply that the raw material was supplied only to
those workers whose names are entered in the Register maintained by the
firm. It is not possible for the firm to have any control or supervision over
the Bidi making job being done at the house of workers according to their
convenience.

Arjun Banchhor v. Bachi Banchhor

In this case Orissa high court observed that as adoption changes the
course of succession, grave and serious onus of proof of adoption lies on
person who alleges adoption

Narender Malav vs. State of Gujarat

In this case a Public Interest Litigation was filed to the apex court related to
the issues of child labour in the salt mines of Gujarat. The court requested
the amicus curiae and a nongovernmental organisation, SEWA, to enquire
and investigate the issue of child labour, the welfare and well being of salt
mine workers and their families in the Saurashtra and Kutch areas of the
State of Gujarat, particularly with reference to education facilities for their
children and availability of a adequate proper housing and medical facilities
and to report to the court within three months.

1. AIR 1995 SC ori 32

2. AIR (2004)

107
The court requested the amicus curiae and the representative of the Non
Governmental Organisation to interact with the empowered committee for
the purpose of ascertaining the measures taken by various agencies for the
welfare of salt workers and their families and to suggest ways and means
to improve these conditions. The court directed the state government
through the Assistant Labour Commissioner to provide all the assistance
for this purpose.

Anant Construction Co., vs. Govt Labour Officer and

Inspector
In this case question is whether the Inspector appointed as per Section 17
of the Child Labour (Prohibition and Regulation) Act 1986 has the power to
pass an order holding that the labours employed by the appellant were
below the age limit prescribed under the Act and to also direct the appellant
to pay compensation. The appellant was carrying a construction business
in 1997. The Inspector being Respondent (1) here in visited the
construction site of the appellant and issued a notice to the appellant for
explanation within seven days with regard, to the employment of child
labour three persons to be exact on the construction site. The appellant
relied upon two certificates certifying that child labourers were in fact above
the age of 14 years when the labour was employed. The inspector
demanded the appellant to have a deposit of Rs. 20000 per child as
compensation and if he failed then action will be taken against him.
Aggrieving with this order, the appellant filed before the High Court as writ
petition under Article 226 of the Constitution. In his writ petition the
appellant had submitted that the inspector did not have jurisdiction to
decide the dispute related to the age factor of the child but was bound to
refer the dispute for decision to the prescribed medical authority as per
Section 10 of the Act.

1. (2006)9 SCC 225

108
The High Court did not agree with the contention raised by the appellant
and dismissed the petition and upheld the quantum of penalty. Finally the
appellant appealed to this court and the apex court has observed Section
16(2) of the Act which prescribes the procedures related to the offence. 16
Procedure related to Offence (1) any person; police officer or inspector may
file a complaint of the commission of an offence under this Act in any court
of competent jurisdiction. (2) Every certificate as to the age of a child which
has been granted by a prescribed medical authority shall, for the purposes
of this Act, be conclusive evidence as to the age of the child to whom it
relates. (3) No court to that of a

Metropolitan Magistrate or a Magistrate of the first class shall try any

offences under this Act. Therefore under this section jurisdiction of the
Inspector to file a complaint with regard to any offence under the Act does
not extend to the trying of the complaint which as sub-section (3) of the
Section 16 specifically provides 207 only court not inferior to the
Metropolitan Magistrate or a Magistrate of the first class. Besides,
Section16 (2) does not make the production of certificate mandatory. Infact
it is open to persons proceeded against under the Act to raise a dispute as
to the age of the person employed.

Arnit Das v. State of Bihar.

The Supreme Court held that if the reckoning age in determining the age of
the offender would be the date when produced in the court.

1. AIR (2000)5SCC488

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CHAPTER 6
CONCLUSION AND RECOMMENDATION
Child protection is protecting children from against any exploitation or
abuse danger to their life. Their childhood. Child protecting reducing their
vulnerability any harm like social and emotional. Child protection is ensure
that no child fallout of the security and safety they received necessary care
and protection in the society.

Children pushed into child labour, children facing abuse in the community,
children trafficked, and children affected by a calamity or emergency
situation Save the Children works to protect children from different kinds of
harms abuse, neglect, exploitation, physical danger and violence

Child labour continue problem a large number of children are exploited and
deprive. Children are the future of the country. Children are the weakest
vulnerable part of the society and can be easily targeted.

Constitution in India contains provision for development and protection of

children in part 3 and 4 of the constitution. Fundamental rights and directive
principle of state policy. Indian constitutions contain provision welfare of the
child and prohibition of exploitation. The child labour is social- economic
conditions prevailing in the country poverty and lack of education.
Education is not afforded or inadequate or no other alternative children
spend their time working. Therefore need to implementation the laws
relating to children.

Child labour continues problems, large numbers of children are explotation

and deprive. In India large number of children are working child labour to
social- economic conditions factories, poverty, illiteracy the cause of
prevalent of child labour.indian government had made several laws to
protect the legal interest of the children in the country. India n constitution
contains several provisions under article 15(3), article 21, article 24, article
39(e) and (f) and article 45 for preventing explotation and protecting
children.

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The Indian judiciaries play a very important role in promoting child welfare.
Protect the child from exploitation and improve their condition. A right to
education is necessary for the proper flowering of the children and their
personality. We can say that carelessness on the part of the enforcements
under specific laws issued to address and cured. The increased crime
against the children after enacting many laws and implementing. All over
the world children are misused for fulfill some peoples illegal purpose with
various laws. It is also our social responsibility to take care of the children
and to protect their rights.

The Indian Supreme Court to protect the children from various type of
exploitation. The Supreme Court made directions and suggestions in many
instances to protect basic rights of poor children; unfortunately these
directions and suggestions are not followed and implemented by the
government machinery effectively. In this regards, the performance of the
Indian Judiciary stands out as a signal contribution to the implementation of
human rights generally and that of Child Rights in particular.
In the M.C. Mehta v. State of Tamil Nadu and Goodricke Group Ltd v
Center of West Bengal Supreme Court of India emphasized on national
Constitution and international instruments, including the Convention on the
Rights of the Child, the Indian government is required to ensure that
children do not engage in hazardous work. In Lakshmi Kant Pandey v
Union of India with object of ensuring the welfare of the child J. Bhagwati
directed the Government and various agencies to follow some principles as
their constitutional obligation to ensure the welfare of the child. Also
judiciary has taken the lead to save the child from exploitation and improve
their conditions. To mention a few, the Asiad case ,L.K.Pandey case
,M.C.Mehtas case ,Vishal Jeet v. Union of India ,and Gaurav Jain v. Union
of India are some of the famous decisions where the judiciary has shown
enough courage to uphold the interests of the children and spared no one
to improve the working conditions of the child workers. The judiciary has
always made concrete efforts to safeguard them against the exploitative
tendencies of their employer by regularizing their working hours, fixing their
wages, laying down rules about their health and medical facilities. The
judiciary has even directed the states that it is their duty to create an
environment where the child workers can have opportunities to grow and
develop in a healthy manner with full dignity in consensus of the mandate
of our constitution.

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Some of the cases are like People Union For Democratic Rights ,Bandhu
Mukti Morcha ,Neeraja Chaudhary in which the apex court liberalized the
rule of Locus Standi and given their judgment that public interest litigation
can be filed by any one, not the aggrieved persons and the judiciary has
shown encourage to uphold the interest of the working children and spared
nothing to improve the conditions of the child workers. Not only in the
concept of locus standi but also the judiciary also look out the situation of
child workers where there is not proper enactment on child labour
legislation then also they had given their judgement in Labourers Working
on Salal Hydro project in which the apex court points out that poverty and
economic factors are there for improve the problems of child labour so they
pointed out that whenever the Central Government take any construction
project then they have to look out the children who are living or working
them then provide education to them so that their conditions will be
improved. Finally the apex court has taken some cases in which they held
that right to education is a fundamental right and no child can leave without
providing education to them like Mohini Jain, and Unnikrishan case.
Similarly also the judiciary also taken some of the cases in which
Convention of the Rights of the Child 1989 which is considered to be a role
model for the welfare of the children rights and this was discussed in
Bandhu Mukti Morcha and other cases also where the judiciary have taken
stand in which violations of the Sections of the Child Labour (Prohibition
and Regulation) Act, 1986 in Raj Kumari Tiwari case in which the High
Court held that there is no violation of section 14 of the Act to set aside the
order of the lower court. In another case Hemendra Bhai case in which the
question arose whether magistrate had a cognizance of the offence since
the alleged charge had not framed out. The Court analysed the other
decision which are related to this case which was pointed out by the leaned
counsel of the petitioners. The High Court had given their judgement that
the magistrate did not apply their minds for framing out charges and the
petitioner is not liable for employing child labourer as his organization have
taken out the raw material from the persons who were making beedi since
they are doing independently so the firm of the petitioners is not liable and
set aside the order of the court. The judiciary has always made concetre
efforts to safeguard them against the exploitative tendencies of their
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employers by regularizing their working hours, fixing their wages, laying
down rules about their health and medical facilities. The judiciary has even
directed the states that it is their duty to create an environment where the
child workers can have opportunities to grow and develop in a healthy
manner with full dignity in consonance of the mandate of Our National
Charter. The Commission visited several villages, personally contacted the
parents of the children in different places and found that the children were
taken against their wishes and are wrongfully forced to work as bonded
labour in the carpet industries. They have furnished the list of the children
whom they contacted and the list of the carpet industries where at the
children were found engaged. The question, therefore is, whether the
employment of the children below the age of 14 years is violative of Article
24 and whether the omission on the part of the State to provide welfare
facilities and opportunities deprives them of the constitutional mandates
contained in Article 45, 39(e) and (f), 21, 14 etc. The child labour, therefore
must be eradicated through well-planned, poverty focussed alleviation,
development and imposition of restrictions in employment of the children
etc. Total banishment of employment may drive the children and mass
them up into destitution and other mischievous environment, making them
vagrant, hard criminals and social risks etc. Therefore, while exploitation of
the child must be progressively banned, other simultaneous alternatives to
the child should be evolved including providing education, health care,
nutrient food, shelter and other means of livelihood with self respect and
dignity of person. Immediate ban of child labour would be both unrealistic
and counter, productive. Ban of employment of children must begin from
most hazardous and intolerable activities like slavery, bonded labour,
trafficking, prostitution, pornography and dangerous forms of labour and the
like. Compulsory education, therefore, to these children is one of the
principal means and primary duty of the State for stability of the democracy,
social integration and to eliminate social tensions.

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Recommendation:-
Every child deserves a happy and safe childhoods there are following
recommendation are:

1. We should work with the most disadvantaged local communities,

sensitising and educating them about the rights of children to help them
understand that children are meant to be at school and not work.

2. We form Children Groups through which we bring together vulnerable

children in a community. These children then collectively work our solutions
to help themselves and each other and ensure child rights in their area are
upheld

3. We should work very closely with these Children Groups and train them
to identify and prevent cases of child marriage, child trafficking, child
abuse and child labour.
4. We should map out-of-school children, street children and those who are
involved in child labour and facilitate their movement into schools by the
means of enrolment drives.
Another major aspect of our work is to coordinate with the district and state
level authorities to ensure right implementation of laws so that children in
the area are kept safe
For vulnerable children above 14 years of age, we organise skill-based
vocational trainings like beautician courses, security guard training, etc.
and prepare them for dignified employment opportunities

5. We should utilize a child rights programming framework and keep in

mind the cross-cutting themes of child participation, non-discrimination and
best interests of children. Our child protection work focuses on three key
evidence groups:

Children affected by disasters/emergencies and conflict, including Child

Centered Disaster Risk Reduction.

Children on move- child trafficking, street children, migrants children

Children involved in harmful work and

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Children with inadequate parental care including alternatives to institutional
care.

Understanding good and productive practices in care and protection is a

major focus of our programme work. This requires quality programme
implementation, monitoring and evaluation (research & studies) and
learning from the evidence and advocate to be scaled up. Some of the
Most important activities of our Child

6. Protection programme include:

Improving the understanding of the situation of vulnerable children in need

of care and protection.

Building children's resilience and supporting their participation in their own

protection, including child-led organisations and child-to-child support.

Promoting diversion from inappropriate or punitive responses and

encouraging the reintegration of children who have been stigmatised
because of their coping strategies in the absence of effective protection
mechanisms.

Demonstrating the benefits of preventative approaches and early

intervention over interventions at a later stage.

Supporting the development of community-based care and protection

systems.

Support to the co-ordination and integration of services and support to

vulnerable children.

Building the care and protection of children into broader social welfare,
poverty reduction and other national development strategies.

Building the capacity of duty bearers to deliver effective care and protection
for children.

Advocating for legal and policy reform in line with the principles and
standards of the United Nations Convention on Rights of the Child.

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its of India to protect children from harm.

7. Children protection from abuse, neglect, exploitation and violence in all

regions of the world. In the United States we provide critical service in the
aftermath of disaster and emergencies, our programs focus on the most
vulnerable children aiming for the safety and well being of all children.
Working with governments, international organizations and local community
partners, we strive to create lasting change with improvements in policy
and service that protect children whether in a nature, conflicted
development.

8. Child protection program activities included creating child friendly space

in emergencies. Reunifying separated and unaccompanied children with
their families in emergencies, developing public awareness campaigns
against child trafficking, piloting training programs for social workers to
provided supportive care to families and children and advocating for more
effective national protection policies and child welfare reform.

9. Child protection work is the participation and leadership of the children

themselves. We actively support child clubs and other child led activities
that educates children on how to protect themselves and empower them to
call for action in their communities.

10. Multi pronged Strategy It was found that being transit, source and
destination locations, Railway Stations in India are a breeding ground for
several social issues such as child labour and child trafficking and
exploitation, and the growing numbers of street and vulnerable children. To
address the rights of such children there is a necessity for a multi pronged
strategy involving several ministries and departments.

11. Missing Children all missing children should be recorded in writing by

Police department. Nation-wide campaigning on registration of missing
children should be taken up. The registration can be done with help of other
government and non government organizations on the missing child
website. There should be a provision for recording found cases as well.

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The current legal and constitutional rights framework in India does not
place enough emphasis on the rights of young children. The protection of
early childhood development in India thus depends on Policies and
Schemes created and run by the Central and State Governments. The
Commission is of the opinion that the constitutional framework of
fundamental rights and directive principles should reflect the special status
and needs of children in the under-6 age group. Further, the Commission
believes that statutory backing should be given to the existing schemes and
policies in order to create legal entitlements in favour of children. This
should be coupled with an integrated and holistic approach to protecting
the interests of the young child, keeping in mind the need for health,
nutrition, care and education as the primary inputs for early childhood
development. The following recommendations are intended to achieve
these ends.

12. It is suggested that, a new Article 24A be inserted to Part III of the
Constitution to ensure that the childs right to basic care and assistance
becomes an enforceable right. The Article should read as follows 24A.
Every child shall have the right to care and assistance in basic needs and
protection from all forms of neglect, harm and exploitation

13. In order to extend the right to education to children in the under-6 age
group as well, Article 21A of the Constitution should be amended to read as
follows: The State shall provide free and compulsory education to all
children in such a manner as the State may by law determine.

14. It is recommended that the fundamental duty of the parent or guardian

to provide education should not be applicable only to children between the
ages of six and fourteen. Article 51 A (k) of the Constitution should be
amended so that the duty is placed on every citizen who is a parent or
guardian to provide opportunities for education to his/her child or, as the
case may be, ward under his/her care.

15. Section 11 of the Right to Education Act should be made mandatory

and should read as follows: with a view to prepare children above the age
of three years for elementary education and to provide early childhood care

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and education for all children until they complete the age of six years, the
appropriate Government shall make necessary arrangement for providing
free pre-school education for such children.

16. It is suggested that the Maternity Benefit Act be amended in

accordance with the forward looking provisions in the CCS Rules, whereby
maternity benefits should be increased from twelve weeks to 180 days.
Provision of maternity benefits should be made obligatory on the State and
not left to the will of the employers and should cover all women, including
women working in the unorganized sector.

17. It is suggested that government formulates policy or guidelines laying

down minimum specifications of paid maternity leave to women employed
in private sector.

18. In order to ensure proper emphasis on the promotion of early childhood

development, especially keeping in view that the current approach towards
which is fragmented into different schemes and raises issues of lack
universality in standards, monitoring and coordination

19. It is suggested that a statutory authority or Council for Early Childhood

Development be created. The Council may be composed of officials from
the Ministry of Women & Child Development, Ministry of Human Resource
Development, Ministry of Finance, Ministry of Labour and Ministry of
Commerce & Industry and representatives from civil society active in the
field of early childhood development, and other such members as may be
specified. The powers and responsibilities of the Council should be
specified by law. Similar Councils to be established at State Level as well.
The Early Childhood Care and Development Council may be looked at as
an example and adapted to the Indian.

20. The Council must be made responsible for laying down minimum
universal standards for quality of services, facilities and infrastructure to be
put in place across all schemes and provisions relating to early childhood.

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21. Clear provision should be made in the law creating the Council for the
allocation of budgetary resources by the Central for the Central Council and
by the State for State Council.

22. It is suggested that there is need for evolving guidelines or some

methods for identification of children suffering from malnutrition and for
referring such children to appropriate healthcare providers.

23. Provision should be made for the training of teachers to provide pre-
school education, and there should be a budgetary allocation to fund
training programs for the same to ensure quality standards and a proper
implementation of the best methods of promoting play and learning.
Teachers imparting pre-school instruction should be considered at par with
primary school teachers, and this should reflect in the terms and conditions
of their employment. This institutional aspect is essential for ensuring that
pre-school education be given sufficient importance.

24. It is suggested that every child under six should have an unconditional
right to crche and day care provided, regulated and operated by the State,
as found for example in the Act on Childrens Day 69 Care of 1973,
Finland. The provision of crches should be made the responsibility of the
State, not of the employer, especially in the unorganized sector.

25. No child below the age of fourteen years shall be employed to work in
any factory or mine or engaged in any other employment.

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