ROLE OF THE JUDICIARY IN PROTECTION OF RIGHTS OF CHILDREN

Abstract

Preserving the current role of the judiciary is the most important approach to protect children’s rights. Children are thought to be a beautiful gift to humanity. It appears that children are the best source of human production, and society will be content withthem. Neglect of these youngsters by society also entails the loss of society as a whole. Article 14 of the Indian Constitution guarantees everyone, including minors, equal protection under the law. Conventions such as the United Nations Convention ontheRights of the Child (1989) appear to be among the most important agreements pertaining to children’s rights.

Although it was not conveyed during the constitution’s creation, the idea of children’s rights is now hotly debated and discussed in the contemporary day. Additionally, theIndian constitution now protects a number of fundamental rights for children, including health, education, protection against exploitation and dangerous jobs, childtrafficking, child maltreatment, and more.

In this article, I will talk about some of the problems and difficulties that childrenencounter as well as the role that the judiciary plays in protecting rights of children.¹

Keywords: child, human rights, adoption, sexual abuse, and exploitation.

Introduction

²The function of India Recent years have seen a remarkable expansion of the judiciaryand the reach of judicial interpretation, in part because to the enormous rise instatutory involvement in the modern day. The judiciary is crucial to safeguarding bothcitizens’ and non-citizens’ fundamental rights. In the universe of freedom, where theright to assert one’s human rights is acknowledged, whether by a written or unwrittenconstitution, the twin protections of equality before the law and equal protectionunder the law are acknowledged as two of the most significant pillars.India, asovereign, socialist, secular democratic republic with a complete charter of rights enshrined in its constitution, is the largest democracy in the world. The IndianConstitution establishes the foundation for the country’s foreign policy andtheupholding of its international commitments. Today, judicial activismhas becomeavital weapon for safeguarding children’s rights, such as their protection fromabuse, trafficking, and sexual exploitation. Declaring preexisting law or interpreting statutorylaw was the court’s primary duty. Conversely, the United States’ realist movement is the most recent area of social jurisprudence that focuses on legal decisions.

India’s judicial response and children’s legal entitlement

The rights of all people under the age of eighteen, regardless of their race, colour, gender, language, religion, opinions, origins, wealth, birth status, or ability, shouldbeextended to children due to their young age and immature minds. They are recognizedboth domestically and globally for their unique legal rights and entitlements. Thefoundation upon which India’s foreign policy should be built and its international commitments upheld is established by the Constitution. A method for defendingchildren’s rights in the modern day, such as safeguarding themagainst sexual exploitation, child trafficking, abuse, and other threats, is judicial activism.Children’s rights were acknowledged by the Indian Constitution, which contained a number of articles addressing their freedom, livelihood, and childhood development, as well as nondiscrimination in the educational system, free and compulsory education, andtheban on their employment in mines, factories, and other dangerous industries.³

WHO IS A CHILD?

A human being under the age of eighteen is considered a child under international law. and the UNCRC (United Nations Conventions on the Rights of the Child) encompasses this widely recognized concept of the child. In a similar vein, India has accepted the UNHRC definition of a child. In India, 18 is considered to be the legal age for all adults, or, to put it another way, the legal age. The Child MarriageRestriction Act of 1929 states that marriages between girls under the age of eighteenand boys under the age of twenty-one are illegal. The juvenile justice act and other regulations have also been modified in India to guarantee the child’s healthydevelopment and growth. Due to their immaturity, youngsters lack the necessarycomprehension to make wiser judgments throughout their lives. For this reason, certain laws are necessary.

1. PROTECTION OF CHILDREN UNDER THE INDIAN PENALCODE, 1860: According to this law, no child under the age of seven may be prosecutedfor a crime. It raises the criminal culpability age to twelve years old in cases of mental handicap or incapacity to comprehend the consequences of one’s acts. Unless she is married, in which case the minimum age requirement is fifteen, agirl must be at least sixteen years old to provide her sexual consent. In terms of safeguarding against kidnapping, abduction, and associated crimes, the specifiedage is sixteen for boys and eighteen for girls. The Indian Penal Code’s sections 82and 83 address the fact that nothing done by a kid less than seven or older thanseven but younger than twelve is considered an offence. It appears that childrenwill not develop the capacity to distinguish between right and wrong at this age. They won’t be conscious of how their actions have affected others.⁴
2. RIGHT TO EDUCATION OF CHILDREN: Article 21A of the IndianConstitution states that all children between the ages of six and fourteen must receive free, compulsory education. According to Article 45, every child under the age of six should receive early childhood care and education fromthe state. According to Article 51(k), children between the ages of six and fourteen shouldhave access to educational opportunities from their parents/guardians. The Universal Declaration of Human Rights’ Article 26 and the International Covenant on Economic, Social, and Cultural Rights’ Articles 13 and 14 bothuphold the right to education.

CHILD PROTECTION FROM LABOUR: According to the Child Labour (Prohibition and Regulation) Act of 1986, a child is any anyone under the age of fourteen. An adolescent is defined as a person who has reached the age of fifteenbut has not reached the age of eighteen, according to the Factories Act of 1948and the Plantation Labour Act of 1951. The Factories Act permits adolescents towork in factories as long as they are considered medically healthy, but only for amaximum of four and a half hours per day.⁵

1. PROTECTION OF CHILD FROM MARRIAGE: According to theProhibition of Child Marriage Act of 2006, a woman does not attain majorityuntil she is eighteen years old, and a man does not reach majority until he is twenty-one. For purposes like the Guardians and Wards Act of 1890, the IndianMajority Act of 1875 was passed in order to provide a general definition of aminor. A person does not reach majority status under the Indian Majority Act of 1875 until they turn eighteen. These laws guarantee the eradication of childmarriage from society.⁶
2. JUVENILE JUSTICE: The Juvenile Justice (Care and Protection) Act, 2000, which was passed as human rights legislation, has been completely repealedbystate-by-state Children’s Acts and is currently in effect in every state. This lawaddresses two categories of children: those who are “in conflict with the law,” as defined by Section 2(1), and those who require care and protection, as describedby Section 2(d). A person who has not reached the age of eighteen is consideredajuvenile or child under Section 2(k). Inmates will be treated inside thecorrectional system, with the primary goal being their social rehabilitationandreformation.Juvenile offenders must receive treatment that is suitable for their age and legal position while being kept apart from adults. A unique provisionunder section 15 of the Act prohibits young offenders who commit heinous crimes while they are between the ages of 16 and 18. how a youngster is shieldedfrom any danger that comes from the outside. In Sheela Barse v. Union of India, acommitted social worker named Ms. Sheela Barse took up the cause of defenceless children under the age of sixteen who were being unlawfully heldinjails. She asked that these young children be released from jails, that informationabout juvenile courts, homes, and schools be provided, and that District Judges beordered to visit jails or sub-jails under their jurisdiction to make sure the childrenare being cared for appropriately while they are in custody. According totheCourt, children incarcerated should get preferential treatment. Children shouldbegiven more consideration since they are a national treasure. For youngsters incarcerated, the Court recommended the establishment of juvenile homes andremand facilities. To defend the rights of the children in the observation homes, the Supreme Court stepped in in Sheela Barse v. Secretary Children Aid Society.⁷
3. RIGHT AGAINST EXPLOITATIONS: The Supreme Court ruled against thesystem of bonded labour and child labour pledges while interpreting Article 23, which forbids forced employment. In its interpretation of that Article, theSupreme Court further ruled that failure to pay minimum wages would constitute”forced labour,”which is forbidden under Article 23 of the Constitution. For thosewho are campaigning for improved working conditions for child labour, this is just one more boost. Children under the age of 14 are not permitted to workTheSupreme Court had a great chance to evaluate the actual meaning and content of Article 24 when it came up for review in the Salal Hydel Project Case. TheSupreme Court ruled that even though construction projects were not coveredbythe Employment of Children Act of 1938 because the construction industrywas not listed in the Act’s Schedule, Article 24 of the Act stated that constructionwas a hazardous occupation and that children under the age of 14 could not workinahazardous occupation.in mines, factories, or other dangerous jobs, accordingtoArticle 24.In the decision of “M.C. Mehta v. State of Tamil Nadu,”whichaddressed child labour in match industries in Sivakasi, Tamil Nadu, the SupremeCourt ruled that children should not be employed in dangerous jobs in factories that make match boxes and fireworks, and that constructive measures shouldbetaken to improve the conditions of these children and their quality of life.⁸

RIGHT TO HEALTH: Article 38 of the Indian Constitution requires states topreserve social order in order to advance the benefit of their citizens, but this cannot be done without public health. It implies that people cannot be healthywithout public health. The health and strength of workers, both men and women, as well as the young age of children, are protected by Article 39(e). Additionally, individuals are not compelled to choose careers that are inappropriate for their age or physical capabilities due to financial necessity. According to Article 39(f), children are provided with the means and chances to grow up in a healthy way, inan environment of liberty and dignity, and they are shielded frommaterial andmoral desertion as well as exploitation.⁹

RIGHT TO EQUALITY: Subject to certain restrictions, the courts implement the fundamental battles that are promised to safeguard thefundamental human rights of all Indian citizens. The right to equality is one of these essential rights. Right to Equality Article 14 relates to the legal right tobe free from discrimination based on caste, race, religion, sex, or place of birth. It also includes the elimination of titles, untouchability, and equal employment opportunities. The law should treat all citizens, including children, similarlyandprovide them with equal protection from it, free fromdiscrimination. Additionally, discrimination is forbidden by Article 15 of the IndianConstitution.¹⁰According to the Supreme Court’s decisions in in Gaurav Jainv. Union, which highlights the right to equality in Articles 14, 15, 16, 17, and 18of the Indian Constitution, children of prostitutes are entitled to equalityof opportunity, dignity, care protection, and rehabilitation so they can join societywithout facing any stigma. The Court ordered that a committee be establishedtodevelop a plan for the rehabilitation of these kids and child sex workers, carryit out, and submit a regular report from its Registry.

1. ADOPTION OF CHILDREN: In Lakshmi Kant Pandey v. Union of India, theSupreme Court of India was prompted by a letter written by an advocate namedLaxmi Kanta Pandey, who complained about the abusive practices of social organizations and voluntary agencies that offer Indian children for adoptiontoforeign parents. In cases where these children are not placed in shelters and relief homes, they eventually turn into prostitutes or beggars due to a lack of proper care from their purported foreign foster parents.The Government and several agencies were instructed by Justice Bhagwati to adhere to certain principles as part of their constitutional duty to ensure the welfare of children. The adoptionof Indian children by individuals both inside and outside of India is the subject of this crucial case. Since there was no legislation, the Supreme Court createdcomplex guidelines. Since there was no legislation governing international adoptions, Indian children could suffer irreversible injury. Given the potential for child trafficking for prostitution and slave labour, it was imperative that suchadoptions be regulated legally.Therefore, Justice Bhagwati created a plantocontrol international adoptions as well as domestic adoptions. According totheSupreme Court, if an adoption is judged illegal due to noncompliance, the parties involved may face severe consequences, including legal action. To safeguardchildren and encourage desired adoptions, social activists have been using theseguidelines for years. The Indian government came out with a hypothetical policyin this area.¹¹
2. SEXUAL EXPLOITATION OF CHILDREN : Women’s rights, especiallythose of girls, are consequently an intrinsic, essential, and inseparable component of universal human rights.All types of gender-based discrimination are against human rights and fundamental freedoms. Therefore, it would be necessary totakeall necessary measures to outlaw prostitution.The social well-being and dignityof women depend on the abolition of prostitution in all its forms.Effective steps toeradicate prostitution at its source are essential for success.In Vishal Jeet v. Unionof India, the Supreme Court addresses some important issues with child sex abuse. It is therefore extremely disgraceful and heartbreaking to observe that manyimpoverished children and girls in their prime are brought to the flesh market andcoerced into engaging in the flesh trade, which is conducted in completedisregard for all standards of morality, decency, and human dignity.The SupremeCourt decided in Gaurav Jain v. Union of India that the children of prostitutes have the right to equality of opportunity, dignity, care, protection, andrehabilitation in order to integrate into society without any stigma. The Court alsoordered the rehabilitation of these children and child prostitutes, as well as theimplementation of the rehabilitation program and the submission of a periodicreport detailing its history.¹²

CONCLUSION

¹³I have come to the conclusion that children’s development and growth in India aregreatly influenced by the Indian court. They created policies and regulations that canhelp children’s development and well-being. However, there will be certaindifficulties in the future, such as child maltreatment, female genital mutilation, andchild trafficking. However, issues can be resolved quickly with advancement. Children are a valuable human resource for the country. The country’s children’s growth and development will determine its future well-being. According totherenowned poet Milton, “Child shows the man as morning shows the day.” In order toensure that each child’s personality develops fully, it is the responsibility of societytoprovide for them. Children are the society’s future stewards and torchbearers; theyarethe voices of our ideas, philosophies, and cultural heritage. Children are actuallythefuture—the great teachers, scientists, judges, rulers, doctors, planners, engineers, andpoliticians who create the foundation of society as a whole. ¹⁴

¹⁵In addition to providing justice for the kid, legal reform offers a practical waytoprevent social transformation. The child is similar to a plant bud that can only growwhen their rights are upheld. Regretfully, millions of children are exploited, abused, and denied their childhood rights and the opportunity to an education.¹⁶

¹⁶Punishment provided under the Child from Sexual Offence Act, 2012: Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend to imprisonment for life, and fine (Section 4); Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which may extend toimprisonment for life, and fine (Section 6); Sexual Assault (Section 7) – Not less than three years whichmay extend to five years, and fine (Section 8); Aggravated Sexual Assault (Section 9) – Not less thanfive years which may extend to seven years, and fine (Section 10); Sexual Harassment of the Child(Section 11) – Three years and fine (Section 12); Use of Child for Pornographic Purposes (Section 13) – Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1)) The Act provides for the establishment of Special Courts for trial of offences under the Act, keepingthe 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.

Reference(S):

¹ INTERNATIONAL JOURNAL OF LEGAL SCIENCE AND INNOVATION

² Author is a LLM Student at Assam Rajiv Gandhi University Of Cooperative Management, India.

³ Section 82 of the Indian Penal Code, 1860

⁴ Section 83 of the Indian Penal Code, 1860

⁵ Section 375 of the Indian Penal Code, 1860

⁶(1986) SCC 332

⁷ AIR 1987 SC 656

⁸AIR 1984 SC 177

⁹AIR 1996 ( JT, 1996 (II) SC 685) 19

¹⁰Articles 14, 15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality

¹¹ AIR 1990 SC 292

¹² AIR 1984 SC 469

¹³ AIR 1990 SC 1412

¹⁴ AIR 1990 SC 292

¹⁵ AIR 2004 SC 3566