Every day we see articles focusing on the shining and the non-shining ‘bits’ of India. But if anything or anyone truly shines in India today, it is her children, comprising over one-fourth of our population.
Resilient and lively, they continue to smile and give hope in the not so shining bits of India that most of them inhabit. India has more working children than any other nation. Despite Constitutional guarantees of civil rights, children face discrimination on the basis of caste, religion, ethnicity and religion. Even the basic need for birth registration that will assure them a nationality and identity remains unaddressed, affecting children’s rights to basic services.
The Indian Constitution contains the most explicit constitutionalisation to date of children’s rights. It is no accident that the Indian Constitution singles out children for special protections. Children constitute principal assets of any country. Children’s development is as important as the development of material resources, and the best way to develop national human resources is to take care of children. Children are most vulnerable to exploitation and abuse. A lot more has to be done for the health, nutrition and education of children. It is unfortunate that girls in particular face debilitating discrimination at all stages. Therefore, specific concentration is being given to the efforts to improve the life and opportunities of the girl child.
India has made some significant commitments towards ensuring the basic rights of children. There has been progress in overall indicators: infant mortality rates are down; child survival is up; literacy rates have improved; and school dropout rates have fallen. But the issue of child rights in India is still caught between legal and policy commitments to children on the one hand, and the fallout of the process of globalisation on the other. One in every three malnourished children in the world lives in India. Child malnutrition is generally caused by a combination of inadequate or inappropriate food intake, gastrointestinal parasites and other childhood diseases and improper care during illness.
The National Policy for Children lays down that the State shall provide adequate services towards children, both before and after birth and during the growing stages for their full physical, mental and social development. The Government of India adopted the National Charter for Children, which is a statement of intent embodying the Government’s agenda for children. The document emphasizes the Government’s commitment to children’s rights to survival, health and nutrition, standard of living, play and leisure, early childhood care, education, protection of the girl child, empowering adolescents, equality, life and liberty, name and nationality, freedom of expression, freedom of association and peaceful assembly, the right to a family and the right to be protected from economic exploitation and all forms of exploitation. The Indian Constitution recognises various crimes against children that are linked to their sexual abuse. The Immoral Traffic (Prevention) Act that protects children below the age of 16 from being used for the purposes of commercial sex. The Juvenile Justice Act Section 26 (Exploitation of Juvenile or Child Employee) provides for punishment if a person procures a juvenile for hazardous employment. The Prohibition of Child Marriage Act also makes punishable the practice of marrying girls under the age of 18 and boys under the age of 21. In addition to these legislations, there is also a commission for the protection of the rights of children which inquiries into various violations of child rights and recommends initiation of proceedings as seen necessary.
In the case of Peoples Union for Democratic Rights v. Union of India, also known as the Asiad Workers case, the Supreme Court held that though the Employment of Children Act, 1938 did not include the construction work on projects because the construction industry was not a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation and under Article 24 children under 14 could not be employed in a hazardous occupation.
The right of a child against exploitation under Article 24 was enforceable even in the absence of implementing legislation, and in a public interest proceeding. lakshmi Kant Pandey v. Union of India, an extremely important case relating to the adoption of Indian children by persons inside and outside India.
In the absence of legislation, the Supreme Court framed elaborate guidelines in the matter. There was no law to regulate inter-country adoptions, and such lack of legal regulation could cause incalculable harm to Indian children. Considering the possibility of child trade for prostitution as well as slave labour, legal regulation of such adoptions was essential.
Therefore, Justice Bhagwati created a scheme for regulating both inter-country and intra-country adoptions. The Supreme Court held that any adoption in violation of or non-compliance with may lead adoption to be declared invalid and expose person concerned with to strict action including prosecution.
(The writer is a member of the legislative Research and Policy Club, National law University Odisha, Cuttack)