Constitutional and legal framework for child protection in India

Context

• In a tragic accident, a new-born baby was charred to death reportedly due to the overheating of the incubator in a city-based hospital.
• Nineteen students were killed and dozens injured in a massive fire that broke out at a coaching centre in Surat.

About:

• According to the country’s Ministry of Women and Child Development, 242,938 children disappeared between 2012 and 2017. But according to TrackChild, a government database, nearly 237,040 went missing between 2012 and 2014 alone.
• Rapid pace of unplanned urbanization in the developing countries has resulted in a large proportion of children becoming homeless, leading to multiple children living on the streets.
• These factorial pointers are indicated towards growing indifferent attitude towards children' safety.
• This is unacceptable affairs of state - not just on 'demographic dividend norms' but also on moral factors.
• Looks like acts such as POCSO are lacking teeth and rigorous implementation will.

Background:

• The Supreme Court in 2013, responding to a Bachpan Bachao Andolan’s petition filed in 2012, had ruled that any case of missing children must be registered and investigated as a case of trafficking or abduction.
• Government data has revealed that the trial of pending cases of child sexual abuse will take over 50 years in some states to be completed, even if no further cases are registered.
• Will a child who was raped when she is 15 keep attending court hearings even when she is 70?
• This is a mockery of justice and political apathy. In this state of emergency, urgent political response is required.

What is Child Protection?

• UNICEF 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.
• According to the Integrated Child Protection Scheme (ICPS) Child Protection is about keeping children safe from a risk or perceived risk to their lives or childhood.
• It is about recognizing that children are vulnerable and hence reducing their vulnerability by protecting them from harm and harmful situations.
• According to the United Nations Convention on the Rights of the Children – that India ratified in 1992 – all children are born with fundamental rights.
  • Right to Survival – to life, health, nutrition, name, nationality
  • Right to Development – to education, care, leisure, recreation, cultural activities
  • Right to Protection – from exploitation, abuse, neglect
  • Right to Participation – to expression, information, thought, religion.

A Protective Environment for all Children

This protective environment rests in 2 strategic pillars: strengthening of national systems and social change, which translate into the following 8 key strategies:

1. Governmental commitment to fulfilling protection rights: includes social welfare policies, adequate budgets, public acknowledgement and ratification of international instruments.
2. Legislation and enforcement: includes an adequate legislative framework, its consistent implementation, accountability and a lack of impunity.
3. Attitudes, traditions, customs, behavior and practices: includes social norms and traditions that condemn injurious practices and support those that are protective.
4. Open discussion, including the engagement of media and civil society: acknowledges silence as a major impediment to securing government commitment, supporting positive practices and ensuring the involvement of children and families.
5. Children’s life skills, knowledge and participation: includes children, both girls and boys, as actors in their own protection through use of knowledge of their protection rights and ways of avoiding and responding to risks.
6. Capacity of those in contact with the child: includes the knowledge, motivation and support needed by families and by community members, teachers, health and social workers and police, in order to protect children.
7. 7. Basic and Targeted Services: includes the basic social services, health and education to which children have the right, without discrimination, and also specific services that help to prevent violence and exploitation, and provide care, support and reintegration assistance in situations of violence, abuse and separation.
8. 8. Monitoring and oversight: includes effective systems of monitoring such as data collection, and oversight of trends and responses.

Keeping in view the problems and challenges faced by children, laws have been introduced and various policies and programmes are being implemented for the welfare of children in India.

Constitutional Safeguards for Children

• Article-15 & 15(1): The State shall prohibit discrimination against any citizen on the grounds of religion, race, caste, sex. Nothing in this article prevents the State from making any special provision for women and children.
• Article -21 A: The State shall provide free and compulsory education to all children of the age 6- 14years in such manner as the State may, by law determine.
• Article-24: No child below the age of 14years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
• Article-39(f): Enjoins the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that the 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-243 G: Provides for institutionalization of child care by seeking to entrust programmes of women and child development to Panchayat (item 25 of Schedule 11).

Legislations related to Children

• The Hindu Adoptions and Maintenance Act, 1956 codifies laws for adoption and maintenance of both boys and girls and declares that the sons and daughters are treated equally in the matter of succession.
• The Pre-Conception and Prenatal Diagnostic Techniques Act, 1994 regulates the use of pre-natal sex determination techniques. Though it permits the use of prenatal sex determination techniques for detecting chromosomal or sex linked disorders only by the registered institutions but strictly prohibits determination of sex of foetus and killing of female child in the mother’s womb not only by the medical practitioners, gynecologists or pediatricians' but also by any genetic laboratory, counseling centre or clinic.
• The Immoral Trafficking (Prevention) Act (ITPA), 1956 prohibits commercial sexual exploitation and all cases relating to prostitution registered under the Act. This Act defines a minor as a person between 16 to 18 years of age.
• The Child Labour (Prohibition and Regulation) Act, 1986 prohibits the engagement of children in certain employments and regulates the conditions of work of children in certain other employments.
• The Juvenile Justice Act formulates laws relating to juveniles in conflict with law (juvenile who is alleged to have committed an offence) and provide proper care and protection for children in need. The Act adopts child-friendly approach by catering to the development needs of the children and their rehabilitation in institutions established under law.

Institutional Frameworks for Child Welfare

• The National Commission for Protection of Child Rights (NCPCR) was set up as a statutory body under Ministry of Women and Child Development in 2007 under the Commission for Protection of Child Rights (NCPCR) Act 2005 to protect, promote and defend child rights in the country.
• The Central Adoption Resource Authority (CARA) is an autonomous body under Ministry of Women and Child Development, Government of India. CARA which primarily deals with adoption of orphan, abandoned and surrendered children through recognized agencies.
• As per the provisions of Hague Convention on Inter-country Adoptions, 1993, CARA is designated as the Central Authority to deal with in-country and inter-country adoption of children.

What is the status of safety environment?

• When a generation of a nation is under siege by an enemy that resides within us, citizens must recognize the emergency and act on a war footing.
• With two-thirds of the population of a country living in a constant state of fear; it is a breakdown of the rule of law. It is now that the idea of a New India that is a Safe India is timely, and necessary.
• When a child loses valuable years of education battling trauma from sexual abuse, his/her loss must be compensated for.
• Our current justice system for children does not take this into account. The tribunal shall provide for damages, attach property, reward compensation on the basis of natural justice; thus making injustice economically unviable for the perpetrator.
• It will ensure prompt action and hold institutions accountable to their ultimate beneficiary, the child
• Parliament should set up a national children’s tribunal as the immediate political response to this state of emergency.
• Justice is not a transactional principle in the courts, but an absolute principle to maintain equilibrium in society.

 Practice Question:

Despite India having a comprehensive legal regime and policy framework to protect the rights and interests of the children, we still witness apathetic attitude towards children’s safety. Discuss.