Child Rights
Child Rights
Child Rights
RIGHTS OF CHILDREN
BY
LAKSHMINARAYAN.R
Roll no 769
RIGHTS OF CHILDREN
Children are universally recognized as the most important asset of any nation. The future of
the nation depends directly on how they are brought up and cared for1 . But unfortunately they have
been deprived not only of their due shares in various areas of activities but have also been subjected
to inhuman and humiliated wrongs2 . For past centuries, children all over the world have not only
been denied full justice social, economic and political but have also been used, abused, exploited and
then discarded to lead immoral street vagrant and destitute life till their end 3 . Children are the
citizens of future era. The proper upbringing of children and giving them the proper training to turn
out to be good citizens depends on the future of the country. Rights of children are therefore
inalienable, integral and indivisible part for the full development of their personality . Children of the
world are innocent, vulnerable and dependent. All the children without any discrimination on the
basis of race, colour, sex, language, religion, national or social origin, property, birth or other status
should be entitled to rights . It is the birth right of every child that cries for justice from the world as
a whole4 .Thus,the importance of child welfare cannot be underestimated because the welfare of the
entire community, its growth and development depends on the health and well- being of its children.
International law and child Rights
The concept of child rights emanated from the Magna Carta. In the USA the Children’s
Rights movement was born in 1800s and a National Child Labour Committee to abolish child labour
was formed in the 1890s. In 1938 Fair Labour Standard Act was signed by President Roosevelt to
place limits on many forms of child labour. The first effective attempt to promote children’s right
was the Declaration of the Rights of the child drafted by Eglantyne Jebb in 1923 was adopted by the
league of Nations in 1924. Though league of Nations failed it was accepted by the United Nations on
its formation and updated in 1959 and replaced in a more extensive United Nations Convention on
the Rights of Child in 1989.
In the context of International arena the position of children has undergone a considerable change
due to International instruments like
I. The Universal Declaration on Human Rights 1948
1
Paul,Thomas (2008). Child Labour – Prohibition V Abolition : Untangling the Constitutional tangle.Journal of the
Indian Law Institute ,2,143
2
Awasthi;Kataria (2000).Law Relating to Protection of Human Rights. Aurangabad : Orient Publishing p.1
3
Basu,Palok (2007). Law Relating to Protection of Human Rights : Under the Constitution and Allied Laws.2nd ed.
Allahabad : Modern Law Publications p.11
4
Jurisprudence of Juvenile Justice : A Preambular Perspective
The Universal Declaration of Human Rights 1948 proclaims a catalogue of human rights which
apply to all human beings which include children. It categorically mentions only two articles which
refer to children. Article 25(2) is on special care and assistance and Article 26 on education. Article
25 emphasizes the rights of children to special care and assistance and also provides this through the
direct protection of the rights of the child and indirectly through the protection of motherhood.
Article 25(2) mentions that 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 deals
with both access to and the aims of education. Article 26 (1) states that everyone has a right to
education. Education shall be free and compulsory, at least in the elementary and fundamental stages
.Technical and professional education shall be made generally available and higher education shall
be equally accessible to all on the basis of merit. Article 26(2) states that Education shall be directed
to the full development of the human personality and to the strengthening of respect for human rights
and fundamental freedoms. It shall promote understanding, tolerance and friendship amongst all
nations, racial or religious groups, and shall further the activities of the United Nations for the
maintenance of peace. Article 26(3) states that the Parents have a prior right to choose the kind of
education that shall be given to their children. It does not deal comprehensively with children’s
rights5 .
II. The Declaration on the Rights of child 1959
The United Nations proclaimed in the Universal Declaration of Human Rights that everyone is
entitled to all the rights and freedoms set forth without distinction of any kind such as race, colour,
sex, language, birth etc. The child needs special safeguards because of his mental and physical
immaturity which includes appropriate legal protection before and after his birth. Article 25(2) of the
Universal Declaration of Human Rights states that childhood is entitled to special care and
assistance. The above principle along with other principles of the Universal Declaration concerning
the child were incorporated in the Declaration of the Rights of the Child adopted by the General
Assembly in 1959 which proclaimed that this Declaration shall ensure a happy childhood and enjoy
all the rights and freedoms set forth and calls upon parents, national governments and other
authorities to recognize these rights and to strive for their observance according to the principles
stated in the Declaration. Principle 1: A child shall be entitled to all rights without distinction on
account of race, colour, sex, language, religion, social origin, birth or other status. Principle 2:
Children are entitled to ‘special protection’ and that such special protection should be implemented
by reference to the best interests of the child which shall be the paramount consideration and it also
5
Das, P.K. (2003). International Law Documents. New Delhi: Universal Law Publishing, 34
contains a non-discrimination clause’. Principle 3: A child is entitled to a name and nationality’.
Principle 4: A child is entitled to adequate nutrition, housing, recreation and medical services.
Principle 5: Attention is paid to the special needs of physically, mentally and socially handicapped
children. 29 Principle 6: A child shall grow up in the care and responsibility of his parents. Principle
7: A child is entitled to receive education. Principle 8: The child shall be amongst the first to receive
protection and relief. Principle 9: The child shall be protected against all forms of neglect, cruelty
and exploitation and shall not be subjected to traffic in any form. Principle 10: The child be protected
against racial, religious and any other form of discrimination.6 . It is a mere declaration which is not
legally binding document on the states who have ratified it.
III. The Convention on the Rights of Child, 1989
The Convention coming three decades after the Declaration of the Rights of the child has created
a much stronger environment for realizing Declaration’s perception that humanity owes the child the
best. It is guided by the principle of a first call for children. All the members of a family particularly
children should be given necessary protection and assistance so that it can take the responsibility.
Convention on the Rights of the Child Adopted and opened for signature, ratification and accession
by General Assembly resolution 44/25 of 20 November 1989 Entry into force 2 September 1990, in
accordance with article 49 Preamble The States Parties to the present Convention, Considering that,
in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the
inherent dignity and of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world, Bearing in mind that the peoples of the United
Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity
and worth of the human person, and have determined to promote social progress and better standards
of life in larger freedom, Recognizing that the United Nations has, in the Universal Declaration of
Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that
everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
Under the terms of the convention, governments are required to meet children’s basic needs and
help them reach their full potential. Central to this is the acknowledgment that every child has basic
fundamental rights. These include the right to:
Life, survival and development
Protection from violence, abuse or neglect
6
7
An education that enables children to fulfil their potential
Be raised by, or have a relationship with, their parents
Express their opinions and be listened to.
7
Agarwal, H.O. (2001). International Law & Human Rights.(7th ed) Allahabad Central Law Publications, 699
VI. Abolition of Forced Labour Convention 1957
Forced or compulsory labour constitutes a violation of the rights of man to the Charter of the
United Nations and enunciated by the UDHR. In order to suppress it a Convention was concluded for
the Abolition of Forced Labour Convention which was adopted by the General Conference of the
International labour Organisation on June 25,1957.It provides that all necessary measures shall be
taken to prevent compulsory or forced labour from developing into conditions analogous to slavery
and that the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions
and Practices Similar to Slavery, 1956, provides for the complete abolition of debt bondage and
serfdom, and Having noted that the Protection of Wages Convention, 1949, provides that wages shall
be paid regularly and prohibits methods of payment which deprive the worker of a genuine
possibility of terminating his employment8
VII. Convention for the suppression of the Traffic in persons and the exploitation of other, 1951.
The Preamble of the Convention states that Prostitution and the evil of the traffic in persons for
the purpose of prostitution are not compatible with the dignity and worth of the human person. The
United Nations in 1949 consolidated in a single Convention a series of international instruments
which were adopted under the auspices of the League of Nations. These included International
Convention for the Suppression of the Traffic in Women and Children, 1921, International
Convention for the Suppression of the Traffic in women of Full Age 1933 aimed at ending “White
Slave Trade”. A Convention for the suppression of the Traffic in persons and the exploitation of
others was concluded in 1949 under the auspices of the United Nations. States agreed to punish any
person who procures or entices another person for the purpose of prostitution. Article 17(1) and
Article 20 make a special mention about children. According to Article 17(1) the state parties to this
Convention shall undertake to make regulation as are necessary for the protection of immigrants or
emigrants and in particular children at the place of arrival and departure and while en 55 route.
Article 20 of the Convention states that the Parties to the Convention shall if they have not already
done so take the children from being exposed to the danger of prostitution9 . The sex market behaves
like no other commercial market on the planet. It is a place where the rule of capitalism and free
market economics remains suspended in deference to the authors ideology where no one makes
rational choices and exchanges are never voluntary nor mutually beneficial but instead are always,
inevitably exploitive
8
Srivastava, P.V, Narayan R.S. (2002).United Nations On Human Rights : Vol 1. Delhi :Indian Publishers
Distributors,49
9
Geraldine Van Bueren (1995) The International law on the rights of the child. Netherlands: Martinus Nijhoff Publishers
VIII. Convention against Discrimination in Education 1960.
Discrimination in education is a violation of human rights. The UDHR asserts the principle of
non-discrimination and proclaims that every person has a right to education. The UNESCO has a
duty not only to prescribe any form of discrimination in education but also to promote equality of
opportunity and treatment for all in education and to institute collaboration among nations with a
view to promote universal respect for human rights and equality of educational opportunity in
conformity with the minimum educational standards as laid down by competent authorities and to
ensure in a manner consistent with the procedures followed in the state for the application of its
legislation, the religious and moral education of the children in conformity with their own
convictions10
IX. Declaration on Social and Legal Principles for Protection and Welfare of Children, 1986
A large number of children are abandoned, or become orphans due to violence, armed conflicts,
internal disturbances, natural disasters or social problems. Their foster protection and adoption
should be of paramount consideration. Several international instruments like the UDHR, ICCCPR,
ICESCR, CEDAW, Convention on Elimination of all forms of racial discrimination and
categorically Principle 6 of the DRC which states that child shall wherever possible grow up in the
care and under the responsibility of his parents and in any case in an atmosphere of affection and of
moral and material security. Conscious of the need to proclaim universal principles to be taken into
account in cases where procedures are instituted relating to foster placement or adoption of a child
either nationally or internationally .The General Assembly adopted this Declaration which proclaims
the principles pertaining to General Family and Child Care, Foster Placement and Adoption. Part A
deals with General Family and Child Care. Article 1 High priority must be given to family and child
welfare. Article 2 child welfare depends upon good family welfare. Article 3 first priority for a child
is to be cared for by his or her parents. Article 4 states where child’s own parents are unavailable or
inappropriate then another substitute-foster or adoptive family should be considered. Article 5 in
matters relating to placement of child outside the care of his own parents with respect to affection
and security the best interests of the child should be the paramount consideration. Article 8 child
should have a name, nationality and a legal representative. Part B deals with Foster Placement. 56
Article 10 of Part B Foster Placement of children should be regulated by law Article 11 Foster family
care may continue until adulthood even if temporary. Part C deals with Adoption. Article 13 of Part
C says that the aim of adoption is to provide the child with a permanent family. Article 16 The
relationship between the child to be adopted and the prospective adoptive parents should be observed
10
Bilgrami, S.J.R. (1977). International Organisations: A view from within .New Delhi: Vikas Publishing House,1-2
by child welfare agencies. Article 17 if a child cannot be placed in a foster or an adoptive family then
intercountry adoption may be considered. Article 19 Policies should be established and laws must be
enacted for prohibiting abduction and any other act of illicit placement of children. Article 24 Where
the nationality of the child differs from that of the prospective adoptive parents weightage shall be
given both to the law of the state of which the child is a national and the law of the state of which the
prospective adoptive parents are nationals.11
X. United Nations Children’s Emergency Fund. (UNICEF).
UNICEF works considerably for the welfare of children. It works in partnership with
governments, civil society and other international organizations to achieve goals for children. It is
engaged in every facet of child health from birth through adolescence. It works to ensure that all
children are immunized against common childhood diseases and that the children and their mothers
are well nourished. It works to prevent the spread of HIV/AIDS among young people and helps
children and families affected by the disease to live with dignity. It promotes quality education for
girls and boys. It advocates for a protective environment for children especially in emergencies to
prevent and respond to violence, exploitation and abuse. Although children’s rights under the
international regime and the CRC in particular aim to enhance the participation of children and give
them greater autonomy, the end result is the maintenance of the status quo12. Because of the almost
unanimous acceptance of the CRC, the issue of children’s rights risks a premature death, and so
future analysis should look at new directions which would make it possible for protecting and
promoting children’s rights and for means of shifting the emphasis of the CRC from salvation to true
participation. There are implementing instruments under the UN for the protection and promotion of
human rights of children where UNICEF has played a very significant and vital role in promoting the
same
11
Palmer, Norman; Perkins, Howard.(1976). International Relations: The world community in Transition.(3rd ed), 298
12
Gupta, Sant Prasad.(1997).International Organisations. Delhi : Pioneer Books,1
groups have approached the apex court for restitution of fundamental rights, including child rights.
The Directive Principles of State Policy articulate social and economic rights that have been declared
to be “fundamental in the governance of the country and … the duty of the state to apply … in
making laws” (Article 37). The government has the flexibility to undertake appropriate legislative
and administrative measures to ensure children’s rights; no court can make the government ensure
them, as these are essentially directives. These directives have enabled the judiciary to give some
landmark judgements promoting children’s rights, leading to Constitutional Amendments as is in the
case of the 86th Amendment to the Constitution that made Right to Education a fundamental right.
Constituional Guarentees
Right to free and compulsory elementary education for all children in the 6-14 year age
group (Article 21 A)
Right to be protected from any hazardous employment till the age of 14 years (Article 24)
Right to be protected from being abused and forced by economic necessity to enter
occupations unsuited to their age or strength (Article 39(e))
Right to equal opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and guaranteed protection of childhood and youth against exploitation
and against moral and material abandonment (Article 39 (f))
Right to early childhood care and education to all children until they complete the age of six
years (Article 45)
Apart from which There is an array of various Indian laws which have played a pivotal role
in the protection and promotion of child rights namely, The Hindu Adoption and Maintenance
Act, 1956 ,The Hindu Minority and Guardianship Act, 1956, The Child Labour (Prohibition and
Regulation) Act 1986,The Factories Act 1948,The Child Marriage Prohibition Act, 2006, The
Medical Termination of Pregnancy Act, 1971,The Indian Penal Code, 1860, Immoral Traffic Act,
1956,The Juvenile Justice (Care and Protection of Children) Act 2000 and Right of Children to
Free and Compulsory Education Act 2009.
13
M.C. Mehta Vs. State of Tamil Nadu and Others, AIR 1991 SC 417
The Hon’ble Supreme Court issued a landmark ruling that the
Indian Constitution (Article 24) requires the state to endeavor to provide a free,
compulsory education for children. The Court found that children under the age of 14
could not be engaged in hazardous employment, and ordered the government to
establish and maintain a child labor rehabilitation welfare fund. Employers that
violated child labor laws would be required to make a deposit into the fund; the
government would also be required to offer the parent of each child engaged in
hazardous employment a job, or else make a deposit into the fund.
b. Bandhua Mukti Morcha Vs. Union of India and others 14-In this case, the Supreme
Court held "Therefore, whenever it is shown that the labourer is made to provide
forced labour, the Court would raise a presumption that he is required to do so in
consideration of an advance or other economic consideration received by him and he
is, therefore, a bonded labour. This presumption may be rebutted by the employer and
also by the State Government if it so chooses but unless and until satisfactory material
is provided for rebutting this presumption, the Court must proceed on the basis that
the labourer is a bonded labourer entitled to the benefit of provisions of the Act. The
State Government cannot be permitted to repudiate its obligation to identify, release
and rehabilitate the bonded labourers on the plea that though the concerned labourers
may be providing forced labour, the State Government does not owe any obligation to
them unless and until they show in an appropriate legal proceeding conducted
according to the rules of adversary system of justice, that they are bonded labourers."
c. J.P.Unnikrishnan & Others Vs. State of Andhra Pradesh & Others 15-In this case, the
Supreme Court held that citizens of this country have the fundamental right to
education and the said right flows from Article 21 of the Constitution. This right is,
however, not an absolute right. Every child/citizen of this country has the right to free
education until he completes the age of fourteen years. Thereafter, his right to
education is subject to limits of the economic capacity and development of the State.
d. Mohini Jain vs. State of Karnataka16-In this case, the Supreme Court was called upon
to deal with the question of right to education under Article 41 and once again the
Court emphasized the importance of Directive Principles by holding that the right to
14
Bandhua Mukti Morcha Vs. Union of India and others AIR 1984 SC 802
15
J.P.Unnikrishnan & Others Vs. State of Andhra Pradesh & Others,AIR 1992 SC 2178
16
Mohini Jain vs. State of KarnatakaAIR 1992 SC 1858
education is concomitant to the Fundamental Rights and made the following
observation: “The directive principles which are fundamental in the governance of the
country cannot be isolated from the Fundamental Rights guaranteed under Part III.
These principles have to be sent into the Fundamental Rights. Both are supplementary
to each other. The State is under a constitutional mandate to each other. The State is
under a constitutional mandate to create conditions in which the Fundamental Rights
guaranteed to the individuals under Part III could be enjoyed by all. Without making
“Right to education” under Article 41 of the Constitution a reality, the Fundamental
Rights under Chapter III shall remain beyond the reach of large majority which is
illiterate. The Fundamental Rights guaranteed under Part III of the Constitution of
India including the right to freedom of speech and expression and other rights
under Article 19 cannot be appreciated and fully enjoyed unless a citizen is education
and is conscious of his individualistic dignity”.
e. Bachpan Bachao Andolan v Union of India17- in the landmark case the apex court
defined “trafficking” for the first time and prohibited the employment of children in
circuses.
17
Bachpan Bachao Andolan v Union of India., (2011) 5 SCC 1
REFRENCES
BOOKS AND OTHERS
1. Agarwal, H.O. (2001). International Law & Human Rights.(7th ed) Allahabad Central Law
Publications
2. Awasthi;Kataria (2000).Law Relating to Protection of Human Rights. Aurangabad : Orient
Publishing
3. Bajpai, Asha (2003).Child Rights in India: Law Policy and Practice. New Delhi : Oxford
University Press
4. Basu,Palok (2007). Law Relating to Protection of Human Rights : Under the Constitution and
Allied Laws.2nd ed. Allahabad : Modern Law Publications
5. Bilgrami, S.J.R. (1977). International Organisations: A view from within .New Delhi: Vikas
Publishing House
6. Das, P.K. (2003). International Law Documents. New Delhi: Universal Law Publishing,
7. Geraldine Van Bueren (1995) The International law on the rights of the child. Netherlands:
Martinus Nijhoff Publishers
8. Gupta, Sant Prasad.(1997).International Organisations. Delhi : Pioneer Books
9. Jurisprudence of Juvenile Justice : A Preambular Perspective
10. Palmer, Norman; Perkins, Howard.(1976). International Relations: The world community in
Transition.(3rd ed)
11. Paul,Thomas (2008). Child Labour – Prohibition V Abolition : Untangling the Constitutional
tangle.Journal of the Indian Law Institute ,2,143
12. Singh, Dolly (2001). Child Rights and Social Wrongs: An Analysis of Contemporary
Realities. New Delhi: Kanishka Publishers Distributors
13. Srivastava, P.V, Narayan R.S. (2002).United Nations On Human Rights : Vol 1. Delhi
:Indian Publishers Distributors
CASELAWS
1. Bachpan Bachao Andolan v Union of India., (2011) 5 SCC 1
2. Bandhua Mukti Morcha Vs. Union of India and others AIR 1984 SC 802
3. J.P.Unnikrishnan & Others Vs. State of Andhra Pradesh & Others,AIR 1992 SC 2178
4. M.C. Mehta Vs. State of Tamil Nadu and Others, AIR 1991 SC 417
5. Mohini Jain vs. State of KarnatakaAIR 1992 SC 1858