Child Protection - Legal Perspective
Children have the right to be protected from all exploitative and vulnerable
situations that have been discussed. But that is possible only if you make yourself
aware of the real problems and risks that children face and of the remedies that
are available in law and policy to change the situation in the best interest of
children.
A child may need legal help and protection. Resisting legal action when a child
needs it the most is a common mistake all of us often tend to make.
What is important?
Ask yourself – Should fear of disapproval or reprimand by
family/community/society/the powerful lobby become more important than
social justice?
In 2003, five girls from a village in District Karnal managed to stop sale of two
minors into marriage. Once they had made up their mind to stop the marriage
and the implicit sale their school teacher helped them take necessary steps for
legal action. There was immense resistance from the families of the prospective
bride and the groom, from the village elders, the entire community. The girls also
received threats and their own families tried to stop them from taking such a
step. Initially the police too did not come forward to help and book the erring
persons. When everything else failed, the school teacher sought help from the
local media to write about it. Finally the police was forced to stop the marriage
and book the culprits. These five girls received the National Bravery Award for
their exemplary courage and fight against all odds. The role of the school teacher
was very critical in this case as without his help it would not have been possible
for the girls to take the community to task. In fact, the teacher had risked not only
his career but also his life in the process. But the quest for justice and
commitment to child protection guided his action.
You can perhaps facilitate the process of legal action by taking some of the
following steps:
Inform the police or the child line.
Ensure that the child line provides counselling and legal services to the child.
Mobilise community support.
Report to the Press only as your last resort.
Know your law.
It is important to know the basic law and understand the rights they protect. Only
if you understand rights and legal protection available will you be able to convince
a child or her/his parent(s)/guardian(s) or the community for legal action.
Sometimes the police/administration can also turn out to be difficult. Knowing
your law can empower you to deal with them better.
Sex – Selective abortion, Female foeticide and infanticide
The main law for prosecuting persons who are engaging in sex selective abortion
is the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994. The offences under the Act include the following.
Conducting or associating or helping in the conduct of PND techniques/tests in an
un-registered unit
Sex selection on a woman or a man or both or on any tissue, embryo, conceptus
fluid or gametes derived from either or both of them
Taking the services of an un-qualified person, whether on honorary or payment
basis.
Conducting a PND test for any purpose other than those mentioned as
permissible in the Act.
Sale, distribution, supply, renting, allowance or authorization of use of any
ultrasound machine or any other equipment capable of detecting sex of a foetus
to non-registered units.
Advertisement or communication in any from in print, electronic media or
internet by units, medical professionals or companies on the availability of sex
determination and sex selection in the form of services, medicines, or any kind of
techniques, methods or ayurvedic medicines.
Apart from this law, the following sections from the Indian Penal Code, 1860 are
also important.
When death is caused by a person (Section 299 and Section 300).
Voluntarily cause a pregnant woman to miscarry the unborn baby (Section 312).
Act done with intent to prevent a child being born alive or to cause it to die after
birth (Section 315).
Causing death of an unborn child (Section 316).
Exposing and abandoning of a child below 12 years (Section 317).
Concealing the birth of a child by secretly disposing her/his body (Section 318).
The punishment for these offences extends from two years up to life
imprisonment, or fine or both.
Child Marriage
Prohibition of Child Marriage Act, 2006 envisages preventing child marriages with
enhanced punishments of rigorous imprisonment for two years and/or fine of INR
1 lakh.
It defines a child to mean a male below 21 years and female below 18 years. A
minor is defined as a person who has not attained the age of majority as per the
Majority Act.
There are provisions for maintenance of the girl child. The husband is liable to pay
the maintenance in case he is a major. In case the husband is a minor, his parents
would be liable to pay the maintenance.
The legal status of a child marriage is voidable at the option of the parties.
However, if the consent is obtained by fraud, deceit or if the child is enticed away
from his lawful guardians and if the sole purpose is to use the child for trafficking
or other immoral purposes, the marriage would be void.
The Act also provides for the appointment of a Child Marriage Prohibition officer
whose duties are to prevent child marriages and spread awareness regarding the
same.
Child Labour
Children (Pledging of Labour) Act, 1933 declares any agreement by a parent or
guardian to pledge the labour of a child below 15 years of age for payment or
benefit other than reasonable wages, illegal and void. It also provides punishment
for such parent or guardian as well as those who employ a child whose labour is
pledged.
Article 24 enshrined in the Fundamental Rights and the Directive Principles of
State Policy, lays down that 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 Bonded Labour System (Abolition) Act, 1976 prohibits forcing a person into
bonded labour for debt repayment. The act extinguishes all debt agreements and
obligations. It prohibits creation of any new bondage agreement and discharges
bonded labourers from all debts for which they were bonded. Compelling a
person to render bonded labour is punishable under the law. This includes
punishment for parents who pledge their child or other family members to work
as a bonded labourer.
The Child Labour (Prohibition & Regulation) Act (CLPR Act) 1986 prohibits
employment of a child in 18 occupations and 65 processes and regulates the
conditions of working of children in other occupations/ processes. As per this Act
a child means any person who has not completed 14 years of age. The Act
provides punishment for the offence of employing or permitting employment of
any child in contravention of the provisions of this Act.
List of other labour laws that prohibit child labour and/or regulate working
conditions for child labourers and can be used to book the employers is as
follows:
• The Factories Act, 1948.
• The Plantation Labour Act, 1951.
• The Mines Act, 1952.
• The Merchant Shipping Act, 1958.
• The Apprentices Act, 1961.
• The Motor Transport Workers Act, 1961.
• The Beedi and Cigar Workers (Conditions of Employment) Act, 1966.
• The W.B. Shops & Establishment Act, 1963.
Child Trafficking
The legal framework available for dealing with a case against child trafficking is as
follows:
The Indian Penal Code 1860 - The IPC punishes cheating, fraud, kidnapping,
wrongful confinement, criminal intimidation, procuring minors, buying and selling
of minors for immoral purposes.
Special and Local Laws that can be used to book particular forms and purposes of
trafficking include:
Andhra Pradesh Devadasi’s (Prohibition of Dedication) Act, 1988 or Karnataka
Devadasi (Prohibition of Dedication) Act, 1982
Bombay Prevention of Begging Act, 1959.
Bonded Labour System (Abolition) Act, 1976.
Child Labour Prohibition & Regulation Act, 1986.
Child Marriage Restraint Act, 1929.
Guardian ship and Wards Act, 1890.
Hindu Adoption and Maintenance Act, 1956.
Immoral Traffic (Prevention) Act, 1986.
Information Technology Act, 2000.
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988.
Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989.
Transplantation of Human Organ Act, 1994.
HIV/AIDS
While a specific law to protect the rights of HIV positive people is in the process of
being formulated, there are certain basic rights that the Constitution of India
guarantees to all citizens and stand applicable even if a person if HIV positive.
These are:
Right to Informed Consent - Consent has to be free. It should not be obtained by
coercion, mistake, fraud, undue influence or misrepresentation.
Consent also needs to be informed. This is particularly important in a doctor-
patient relationship. The doctor knows more and is trusted by the patient. Before
any medical procedure, a doctor is supposed to inform the patient of the risks
involved and the alternatives available so the person can make an informed
decision to undertake the procedure or not.
The implications of HIV are very different from most other illnesses. That’s why
testing for HIV requires specific and informed consent from the person being
tested. Consent to another diagnostic test cannot be taken as implied consent for
an HIV test. If informed consent is not taken, the concerned person’s rights may
have been violated and he/she can seek a remedy in court.
Right to Confidentiality - When a person tells someone in whom she/he places
trust something in confidence, it is meant to be confidential. Sharing it with
others thus amounts to a breach of confidentiality.
A doctor’s primary duty is towards the patient and she/he should maintain the
confidentiality of information imparted by the patient. If a person’s confidentiality
is either likely to br breached or has been beached, the person has the right to go
to court and sue for damages.
People living with HIV/AIDS (PLWHAs) are often afraid to go to court to vindicate
their rights for fear of their HIV status becoming public knowledge. However, they
can use the tool of ‘Suppression of Identity’ whereby a person can litigate under a
pseudonym (not the real name.). This beneficent strategy ensures that PLWHAs
can seek justice without fear of social ostracism or discrimination.
Right Against Discrimination -
The right to equal treatment is a fundamental right. The law provides that a
person may not be discriminated against on any grounds of sex, religion, caste,
creed, descent or place of birth etc. either socially or professionally by a
government-run or government controlled institution.
The right to public health is also a fundamental right - something which the state
is supposed to provide to all persons. HIV positive persons seeking medical
treatment or admission to a hospital cannot be rejected. If they are denied
treatment, they have remedy in law.
Similarly, a person with HIV may not be discriminated against due to her/his
positive status in an employment scenario. Termination in such a situation would
give that person an opportunity to seek legal redress. Someone who is HIV
positive but otherwise fit to continue the job without posing substantial risk to
others cannot be terminated from employment. This has been held by the
Bombay High Court in May 1997.
Corporal Punishment
There is no Central legislation in India banning corporal punishment in schools.
Different States, however, have enacted laws or made policies to ban it.
States in India that have banned or upheld corporal punishment
States
Corporal punishment (banned or upheld)
Law/Policy
Tamil Nadu
Banned
Corporal punishment was prohibited in Tamil Nadu in June 2003 through an
amendment of Rule 51 of the Tamil Nadu Education Rules prohibiting the
infliction of mental and physical pain during “corrective” measures.
Goa
Banned
The Goa Children’s Act 2003 bans corporal punishment in Goa.
West Bengal
Banned
In February 2004, the Calcutta High Court ruled that caning in state schools in
West Bengal was unlawful
Andhra Pradesh (Hyderabad)
Banned
Government order (GO Ms No 16) issued on February 18, 2002 imposed a ban on
corporal punishment in all educational institutions, violations of which should be
dealt with under the Penal Code.
Delhi
Banned
Petition filed by Parents Forum For Meaningful Education. The Delhi School
Education Act (1973) had provision for corporal punishment that has been stuck
down by Delhi High Court. In December 2000, the Delhi High Court ruled that
provisions for corporal punishment in the Delhi School Education Act (1973) were
inhuman and detrimental to the dignity of children.
Chandigarh
Banned
Corporal punishment was prohibited in Chandigarh in the 1990s.
Caste Discrimination
The Constitution of India guarantees
Equality before the law and equal protection of laws to each and every person in
the country (Article 14).
Prohibits discrimination on grounds of race, caste, sex, descent, place of birth or
residence (Article 15).
Prohibits discrimination on grounds of race, caste, sex or place of birth in any
public employment (Article 16).
Abolishes ‘Untouchability’ and declares practice of ‘untouchability’ in any manner
whatsoever, a punishable offence (Article 17).
The first Indian law that came into force to provide for punishment for the
preaching and practice of ‘Untouchability’ and for any matter connected with it
was ‘The Protection of Civil Rights Act, 1955’. Even calling a scheduled caste by
her/his caste name e.g. calling a ‘chamar’ a ‘chamar’ is a punishable offence
under this law.
In 1989, the Government of India enacted ‘The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act’, which recognises various kinds of acts of
violence and discrimination inflicted upon the Scheduled Castes and the
Scheduled Tribes by Non-Scheduled Castes and Non-Scheduled Tribes as
punishable offences. It also provides for establishment of Special Courts at district
level to try the offences under this Act, appointment of Special Public Prosecutors
for the purpose of conducting cases in Special Courts, and imposition of collective
fine by the State.
