According to UNCRC the child by the reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth. The UNCRC further holds that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the BEST INTERESTS of the child shall be the primary concern. Now the question is how the Best Interest of the child can be taken care of? The most important answer is to allow child’s informed participation in all matters affecting the child. The views of the child shall be given due weightage in accordance with the age and maturity of the child.
Serving the Best Interest of the child is the touchstone of all decisions taken for the child. I still remember a case in which a girl child of the aged 7-8 years, in institutional care came to me and complained that her parents have started taking her care, they took her for excursions and gave her gifts and all. Her question to me was, why is that I am not being sent to my family? I asked the home in-charge about the Social Investigation Report of the child and came to know that the mother of the girl child was in sex trade and the father was an aider and abettor in the sexual exploitation of his wife. The dichotomy before me was that the Juvenile Justice Act provided for the principle of family responsibility and there was all probability that the child could have been sexually abused, if sent to the family. I took a few days in deciding to what to do in this case?
Finally, the Best Interest of the child prevailed over the principle of family responsibility.
We had an opportunity to interact with Hon’ble Justice Ruma Paul, Judge Hon’ble Supreme Court of India and while discussing Best Interest of a Child, she opined that the best interest of the child can be ascertained by entering into the shoes of the parents of the child. I could realize the importance of her opinion, when I was taking orientation session of police officials up-to the rank of SHOs, who were quite senior and aged and ostensibly it was a mammoth task for me to prove that a child never commits a crime. I had to re- design the training material. I framed a question for them and the question was my son is a minor and is involved in anti-social activities. Some-body makes a report to you, what will you do? All of them replied that they will arrest the child. Then I reported them that my son is a good and gentle boy, but what if your son is into such anti- social activities and is a minor? Apt came the reply, no father said that he will arrest his child, they had so many other solutions. This reminded me the view of Hon’ble Justice Ruma Paul.
The Child Rights as provide under UNCRC can be categorized into four groups, namely,
- Right to Survival, every child has the right to be cared and protected by their parents. The government is further required to safeguard these rights and provide basic services for children to survive and thrive. The Right to survival is available to every child, before as well as after, the birth of the child. In India according to Medical Termination of Pregnancy Act, 1971, embryo after 20 weeks of pregnancy cannot be terminated. Government has already decided to raise twenty weeks to twenty- four weeks but the Act is still to be amended. After 20 weeks of pregnancy the child secures right to life, it is needless to point out that termination of pregnancy in India is governed by the provisions of the Medical Termination of Pregnancy Act, 1971. It will not be out of place to mention here that the ICDS (Integrated Child Development Scheme), is aimed to provide a child ‘right to survival’ even from the stage when the child is in mother’s womb till the age of six years. Integrated Child Development Services is a government program in India which provides food, preschool education, primary healthcare, immunization, health check-up and referral services to children under 6 years of age and their mothers. This includes immunization and providing nutritious food to mothers in family-way.
- Right to Protection, UNCRC gives every child the right to such protection and care as is necessary for his or her well-being. Every child has the right to be protected from physical and mental violence, neglect, sexual abuse and exploitation, while they are in the care of parents or any other person. The Right to protection saves the child from any or more of the following abuses, physical abuse, mental abuse, sexual abuse and neglect. Based on my experience I am of the opinion that the neglect of a child leads to other forms of abuses including discrimination, it will further be relevant to mention here that based on my experience I am of the opinion that if we deprive a child effective right of participation in any walk of life, it is manifestation of neglect. Every parent and future parents are advised to allow effective participation to a child, by talking to and listening to children they will be able to safeguard their children from various abuses. By effective participation I mean not merely talking to and listening to the child, but to give due respect to the views of the child and the information the child wants to pass on to the parents and also assure confidentiality.
- Right to Development, is an inalienable human right of every child by virtue of which the child is provided un-restricted and without discrimination, opportunities to enjoy economic, social, cultural and all other activities by which all human rights and fundamental freedoms and various capabilities of the child can be developed and be fully realized.
When I talk of Right to Protection and Development, Article 39(f) of Constitution of India, under Directive Principles of State Policy, reminds me as follows,’ the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.’
- Right to Participation, every child has the right to express his/her views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously. As discussed earlier right to participation is perhaps the most important right as it paves ways for others rights and also safeguards the child from all forms of abuses. Article 9 (1) of UNCRC provides for state parties shall ensure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weightage, in accordance with the age and maturity of the child. Based on my experience of working with children I will reiterate that right to participation is key to understand all types of threats and abuses of a child.
Some important legislations, in India, regarding Child Rights,
- JJ Act: The Juvenile Justice (Care and Protection of Children) Act, 2015
- POCSO: The Protection of Children from Sexual Offences Act, 2012
- CLPA: The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986
- CMPA: The Child Marriage Prohibition Act, 2006
- PDA: The Persons with Disabilities Act, 2016
- RTE: The Right of Children to Free and Compulsory Education Act,2009
- ITPA: The Immoral Traffic (Prevention) Act, 1956
- MTP: The Medical Termination of Pregnancy Act, 1971
- PCPNDT: The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sexual Selection) Act, 1994
- 370 IPC- Trafficking of Person (Special Mention).
Relevance of various legislations vis-a-vis rights of a child,
|JJ, POCSO, CMPA, ITPA,370 IPC, PDA
|JJ, RTE, CMPA, PDA
|JJ General Principles of Care and Protection
Keeping in view the principle of non-waiver of rights which is one of the guiding principles for implementation of the Juvenile Justice Act, 2015, I am of the opinion that all the rights of a child shall be delivered to the child in one pack, until and unless we don’t deliver all rights to a child in unison, we cannot say that we have complied with Article 21 of Constitution of India and especially the Right to Life with Dignity.