Definition of the Child in Indian Legislations

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Published on March 21, 2014

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PowerPoint Presentation: Hosted by: Definition of the Child in Indian Legislations Mrs. Vibha Sharma Department of Public Administration MCM DAV College Chandigarh, India Definition of the Child in Indian Legislations   Mrs. Vibha Sharma Associate Professor and Head Department of Public Administration MCM DAV College Chandigarh, India E mail: vibhasharma9@yahoo.com         :  Definition of the Child in Indian Legislations   Mrs . Vibha Sharma Associate Professor and Head Department of Public Administration MCM DAV College Chandigarh, India E mail: vibhasharma9@yahoo.com         INTRODUCTION: INTRODUCTION ‘ Child’ - the future citizen of a nation needs to be nurtured and cared for in its tender and vulnerable age to enable him to become a dynamic citizen of tomorrow . Children are found working in the most inhuman, hazardous and hostile circumstances where they may be abused and exploited due to their vulnerability. Children have been denied their rights for a long time and their welfare was just not on the agenda of the governments almost all over the world. INTRODUCTION: Child welfare was initially undertaken by individuals or religious organisation like the Iranian Mosque of the Holy Shrine at Mehsud . Later on Individuals like Eglantyne Jebb who found ‘Save the Children Fund’ and International organisations like the League of Nations and United Nations brought the child at the centre stage of the society. Slowly the world community recognised the vulnerable position of children and endeavoured to ensure them their rights. INTRODUCTION Definition of the Child: Definition of the Child An International Treaty the ‘Convention on the Rights of the Child’ incorporated the full range of human rights-civil, cultural, economic, political and social – to the children. According to Article 1 of the ‘Convention on the Rights of the Child’ a child is a person below the age of 18 years unless, under the law applicable to the child majority is attained earlier. This is an international law that the State Parties must ensure to all children without discrimination in any form . The State Parties who have ratified the Convention are obliged to bring their legislations, policies and practices in accordance with the standards of the conventions . Definition of the Child: As per the ILO in case of Hazardous work the minimum age is to be 18 years and only under strict conditions it is to be reduced to 16. It further states that the basic minimum age of work should not be below the age of finishing compulsory school which is generally 15 years of age. In this case there is exception for the developing countries where the minimum age is 14 years. Children between the ages of 13-15 years may do light work that does not jeopardise their health and safety or hinder their educational or vocational orientation and training. In the case of developing countries it is between 12 -14 years of age. Definition of the Child Constitutional provisions for the child: Constitutional provisions for the child Fundamental Rights Art . 14 provides that the State is not to deny to any person equality before law (here the rights of the child are also included); Art . 19 (1) states that every person (including a child) has freedom of speech and expression; Art. 17 prohibits discrimination of any citizen including a child; Art . 23 prohibit trafficking of human and forced labour; Art . 15 (3) under which, the State can make special provisions for women and children; Constitutional provisions for the child: Fundamental Rights Art. 21 that provides for free and compulsory education to children; and 21-A that provides for free and compulsory education to children from 6 to 14 years of age. Directive Principles of the State Policy These principles are effective guidelines for the Central and State governments for making relevant laws. Child specific guidelines include: Art 39 which does not ban child labour out rightly but makes sure that children do not enter a vocation that is unsuitable for their age besides ensuring that a child is given all opportunities and facilities to develop in a healthy manner; Constitutional provisions for the child Constitutional provisions for the child: Directive Principles of the State Policy Art. 45 directs the government to provide early childhood care and education up to 6 years of age; and Art. 46 the Constitution of India directs the State to promote the interests of children belonging to the weaker section especially the SCs and the STs. Fundamental Duties Art. 51 of the Constitution directs the government to follow International Laws and Treaties that have been ratified by the government while making policies and laws in the country. Constitutional provisions for the child Policies for Child Welfare in India :  Policies for Child Welfare in India National Policy for Children -1974 This Policy did not explicitly define the child but in its provisions stated that the State is to take steps to provide free and compulsory education to all children up to the age of 14 ; Informal education is also to be provided to children who are not able to take full advantage of the formal school education; and no child under 14 years is to be permitted to be engaged in any hazardous occupation or be made to undertake heavy work. The child here is not defined as a person less than 18 years of age. Policies for Child Welfare in India: Policies for Child Welfare in India National Charter for Children 2003 This charter was adopted by the government to reiterate its commitment to the cause of children so that no child remained hungry, illiterate, or sick. The National Policy for Children 1974 was the base of this charter so it also considered the rights of the child up to 14 years of age. Policies for Child Welfare in India : National Plan of Action for Children – 2005 The basic objective of the ‘The National Plan of Action for Children’ was to : ensure all rights to all children up to the age of 18 years to enable them to realise their potential and grow up to be a healthy and productive citizens; by providing an enabling environment for their survival, growth, development and protection. In this document the child is defined as a person up to the age of 18 years . Policies for Child Welfare in India Policies for Child Welfare in India: Policies for Child Welfare in India National Policy for Children, April 26, 2013 The National Policy for Children, 2013 adopted on April 26, 2013; Government of India for the first time gives a definition to the Child and recognises that a child is any person below the age of 18 years; All aspects of the development and welfare of the child are included in this policy; and Definition of the child as provided for in this policy is in conformity with the definition given by the United Nations Convention for the Rights of the Child. PowerPoint Presentation: Legislations related to Child Labour The Child Labour (Prohibition & Regulation) Act, 1986 Act is to prohibit & regulate child labour. According to this Act a ‘child’ means a person who has not completed 14 years of age. Prohibits the engagement of children in certain employments; Provides for the regulation of the conditions of work of children in certain other employments; Regulates of conditions of work of children including fixing hours and periods of work, weekly holidays, notice to inspector etc ; PowerPoint Presentation: The Child Labour (Prohibition & Regulation) Act, 1986 Provides for penalties for employing the child or permitting any child to work; This Act allows a child to be employed with certain conditions; and It does not consider the child to be a person under the age of 18 years as required by the ‘National Policy for Children’ adopted in 2013. The Children (Pledging of Labour) Act 1933 Prohibits pledging of labour of children; Under this Act the child means a person under the age of fifteen years and a guardian means any person having legal custody over the child. PowerPoint Presentation: The Mines Act, 1952 and The Mines (Amendment ) Act 1983 No person below the age of 18 years is to be allowed to work in any mine or part thereof; Apprentices and trainees below the age of 16 years may be allowed to work, under proper supervision in a mine or part thereof by the manager; In such a case prior approval of the Chief Inspector or the Inspector is required.; There is a provision of getting the medical examination conducted to ascertain the age of the person in case of a doubt about his age. PowerPoint Presentation: The Factories Act 1948 The main objective of the factories Act has been to regulate the working conditions in factories . It also has provisions for the regulation of the employment of children in the factories. According to Section 2 of the Factories Act: a ‘adult’ means a person who has completed 18 th year of age; an ‘adolescent’ means a person who has completed his 15 th year but not his 18 th year of age; a ‘child’ means a person who has not completed 15 years of age; and a ‘young person’ means anyone who is either a child or an adolescent. PowerPoint Presentation: The Factories Act 1948 Under the provisions of Section 23 of this Act no ‘young person’ shall be required or allowed to work at any machine to which this section applies unless he has been fully instructed about the dangers arising in connection with the machine and precautions observed and has: received sufficient training in work at the machine; or is under the adequate supervision by a person who has a thorough knowledge or experience of the machine. Other Legislation concerning Child Labour: Other Legislation concerning Child Labour A number of legislations have been passed by the Parliament which prohibits employment of children below the age of 14 to 15 years. These legislations include: The Plantation labour Act, 1951; Apprentices Act 1961; The Merchant Shipping Act, 1958; The Motor Transport Workers Act, 1961; The Beedi and Cigar Workers (Conditions of Employment) Act, 1966; and Dangerous Machines (Regulation) Act, 1983. Legislations Related to Child Protection: Legislations Related to Child Protection Children in difficult circumstances need special protection. The Government of India has brought the following legislation to do so: The Commissions for Protection of Child Rights Act, 2005 & 2006 Independent Commissions at the national & state levels to monitor all laws, policies, programmes and administrative mechanisms, from a child rights’ perspective is provided for under this Act; The National Commission was set up in March 2007; ‘Child Rights’ mean child rights adopted in the Convention of the Rights of the Child and ratified by the Government of India; Child here is defined as a person between 0-18 years of age. Legislations Related to Child Protection:  Juvenile Justice (Care and Protection of Children) Act 2000 The Act defines juvenile / child as a person who has not completed 18 years of age. The Act deals with juvenile in conflict with law; and Juvenile in need of care and protection by providing proper care, protection and treatment by catering to their development needs and by adopting a child friendly approach and the adjudication; and Disposition of matters in the best interest of children and for their ultimate rehabilitation. Legislations Related to Child Protection Legislations related to Child Protection: Protection of Children from Sexual Offences Act 2012 Drafted for strengthening the legal provisions for the protection of children from sexual abuse and exploitation. Defines the ‘child’ as ‘any person’ below the age of 18 years; Provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. The Act for the first time clearly defines these offences; and The offence is treated as aggravated if it is committed by a person in a position of trust or authority of the child like a member of the security forces, police officer or a civil servant. Legislations related to Child Protection Legislations Related to Child Protection: The Immoral Traffic (Prevention) Act, 1956 The Government of India (GOI) has ratified an International Convention for Suppression of Immoral Traffic in Persons and Exploitation of the Prostitution of others. Under Article 23 of the convention, traffic in human beings was prohibited and any contravention of the provisions is punishable by law. Under Article 35 such a law has to be passed by the Parliament. Legislations Related to Child Protection The Immoral Traffic (Prevention) Act, 1956: The Immoral Traffic (Prevention) Act, 1956 So the Government of India brought “The Suppression of Immoral Traffic in Women and Girls” bill in 1950, which ultimately became the Immoral Traffic (Prevention) Act, 1956. Under this Act a ‘child’ means a person who has not completed 16 years of age. The Ministry of Women and Child Development has proposed that the age 16 years should be substituted with the word eighteen years. This bill has lapsed as it was not passed by the Parliament. Miscellaneous Legislations related to Children: Miscellaneous Legislations related to Children Right of Children to free and Compulsory Education Act 2009 Right to Children to free and Compulsory Education Act 2009 to provide free and compulsory education to children of 6 to 14 years of age as a fundamental right. A child according to this Act means a male or female child of the age six to fourteen years for the purpose of providing free and compulsory education. Right of Children to free and Compulsory Education Act 2009: Right of Children to free and Compulsory Education Act 2009 If this Act is viewed along with the ‘Child Labour (Prohibition and Regulation) Act, 1986, then as per the Indian legislations a child is required to be in school up to the age of 14 years and thereafter can take up employment subject to certain conditions. There is thus no bar on a child to take up employment from 14 -18 years of age. This Act again is in contravening to the definition of the child under the ‘National Policy for Children – 2013’ and can be a cause for the gap in services to the children in the absence of a single definition. Miscellaneous Legislations related to Children: Prohibition of Child Marriage Act, 2006 Child marriage has been one of the major social problems of the country. Child Marriage Restraint Act, 1929 (as amended in 1979) has been passed to restrain child marriages before the age of 21 years in the case of males and 18 years in the case of females. Due to a number of shortcomings under this Act an improved legislation was brought in 2006 – Prohibition of Child Marriage Act, 2006. Miscellaneous Legislations related to Children Prohibition of Child Marriage Act, 2006: Prohibition of Child Marriage Act, 2006 This Act has different definitions for the male and female children – 21 years for the male child and 18 years for the female child. In light of the ‘National Policy for Children – 2013’, the government may have to reduce the age of the male child from 21 years to 18 years. Variation in definition of the Child: Variation in definition of the Child Analysis of the definition of the child reveals that the: National Policy for the Child - 1974 was a brief document that tried to enumerate all the issues of children. No child under the age of 14 was permitted to undertake hazardous occupation or perform heavy work. Child was not mentioned as a person under 18 years of age in this policy document. Variation in definition of the Child: Child Labour (Prohibition and Regulation) Act, 1986: Provided that no child under the age of 14 years could be engaged in hazardous work or heavy work; Definition given by the CRC is not adhered but the definition by ILO is followed. So the child labour was not out rightly banned for children below the age of 18 years. Variation in definition of the Child Variation in definition of the Child: Factories Act, 1948, The Mines Act, 1983, The Merchant Shipping Act, 1958 The Plantation Labour Act 1951 and other such legislations : The child means a person who has not completed 15 years of age; Adult means a person who is above 18 years of age; and Adolescent means a person between 15-18 years of age. A young person means a person who is either a child or adolescent. A young person could be allowed to work on a dangerous machine only under instructions and by giving him proper training. So a young person could be employed even to work on dangerous machinery. Variation in definition of the Child Variation in definition of the Child: Juvenile Justice (Care and Protection of Children) Act, 2000: Under this Act the child means a person who has not attained 18 years of age. Prohibition of Child Marriage Act, 2006: This Act defines the child as a person who has not completed the 21 years of age in case of males and 18 years of age in case of females. Under this Act a marriage of a boy less than 21 and girl less than 18 years of age is considered as a child marriage. Variation in definition of the Child Variation in definition of the Child: The National Policy for Children adopted in 2013 for the first time considers: A child as any person below the age of 18 years. This definition is in accordance with the definition given by the United Nations Convention on the Rights of the Child. Variation in definition of the Child Variation in definition of the Child: The definition of a child in different legislations in India is different. The Cabinet for the first time since independence adopted a policy document at the union level that defines the ‘child’ as any person under the age of 18. The Government will now have to amend all the Acts related to children that define a child in a conflicting manner. The Acts include The Child Labour (Prohibition and Regulation) Act, The Child Marriage (Prohibition) Act and other such Acts to bring them at par with the National Child Policy. This would also be in conformity to the definition of the child given by the UNCRC. Variation in definition of the Child Variation in definition of the Child: Though the country has ratified the Convention but there are a number of gaps in the definition and implementation of the same. The Government will also have to face contentious issues and find a delicate balance between the priorities and requirements of ‘children.’ The GOI has brought The Child Labour (Prohibition and Regulation) Bill, 2012 to assess the situation and bring the needful changes in the definition of the child in Indian legislations. Variation in definition of the Child The Child Labour (Prohibition and Regulation) Bill, 2012: The Child Labour (Prohibition and Regulation) Bill, 2012 The Child Labour (Prevention and Regulation) Bill, 2012 was presented by the Ministry of Labour & Employment and referred to the Standing Committee on Labour by the Speaker; The Committee invited experts, other ministries, NGOs to comment on the Bill; The Ministry of Women and Child Development, GOI proposed prohibition of employment of children below the age of 14 years in all occupations and processes; The Child Labour (Prohibition and Regulation) Bill, 2012: It would also help in their enrolment in schools in view of the Right to free and Compulsory Education Act, 2009; Also help in prohibiting employment of adolescents in hazardous occupations and processes and to regulate the provisions of service of adolescents in line with the ILO Convention 138 and 182 respectively; and The linking off the compulsory age of education with the age to enter employment was also proposed. This way if the age of compulsory education is increased then there will be an automatic increase in the age to enter employment. The Child Labour (Prohibition and Regulation) Bill, 2012 Dilemma of a uniform definition: Dilemma of a uniform definition United Nations Convention on the Rights of the Child defines the ‘child’ as a person below the age of 18 years; ILO Convention 138 permits 14 years as the minimum age of employment under certain defined conditions; In developing countries like India the magnitude of child labour is enormous. Children even below the age of 14 years are found working even in hazardous conditions in the underbellies of the metropolitan cities; If the government tries to bring parity in different legislations by defining the child as any person below the age of 18 years there are bound to be problems to deal with the situation; Dilemma of a uniform definition: If an out of school after the age of 14 years is not able to get employment up to the age of 18 years then child may face hardships; In such a situation when it is difficult for him to continue his education due to the socio-economic situation of the family his chances of turning to crime may increase; and If the age is not brought at par with the UNCRC then the childhood of a large number of children may be affected. Dilemma of a uniform definition Recommendations: Recommendations The GOI besides bringing parity in the definition of the child in different legislations can also resort to the following measures for the welfare of the child: The gap between their childhood and adulthood can be bridged by providing them with platforms to enhance their skills for a better employment later; The schools should impart and enhance the vocational skills of children besides basic education to make it beneficial to children belonging to the disadvantaged sections of the society. The Government provides for Mid-Day Meals in schools and along with vocational education – a certain amount of vocational education is already provided - the enrolment in schools may also increase as attending school will be beneficial for the child; Recommendations: Child welfare programmes like the Kishori Shakti Yojana (Programme for young girls) and Rajiv Gandhi Scheme for the empowerment of Adolescent Girls have been launched by the government to empower the girls in vocational, life and nutritional skills. Enrolment in these programmes can be effective in delaying the child in taking up work in industry; Schemes for the adolescent boys can make a difference in the lives of young boys. The need is to initiate the child into vocational education after their compulsory education. This can be initiated with the help of platforms which the government already has for the welfare of the children. The platforms may be the schools at the rural and urban levels where extension in their education can be provided in the form of vocational education; Recommendations Recommendations: The Government of India has also launched Integrated Child Protection Services Scheme to take care of the child in need of care and protection. The scope of this programme can be expanded with the help of rural and urban local government to vocationally equip children and delay their employment; and The problem of child labour can only be tackled by viewing this menace in the larger perspective. The Government has initiated steps to do so by starting a number of national level programmes like National Rural Employment Guarantee Scheme, Food Security Scheme, National Rural Health Mission, Integrated Child development Services Scheme Integrated Child Protection Services Scheme and the like.   Recommendations PowerPoint Presentation: THANK YOU

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