HUMAN RIGHTS AND LEGAL PROTECTION OF ‘CHILD’ IN INDIA WITH SPECIAL REFERENCE TO CHILD LABOUR. BY - EVANGELINE JOYCE EMMANUEL

HUMAN RIGHTS AND LEGAL PROTECTION OF ‘CHILD’ IN INDIA WITH SPECIAL REFERENCE TO CHILD LABOUR.

 

AUTHORED BY - EVANGELINE JOYCE EMMANUEL

 

 

Abstract:

The acknowledgment and declaration of human rights were established to protect and promote the inherent dignity of all members of human society. Various legal instruments, such as conventions, declarations, and covenants, had previously expressed human rights standards for all members of the human family. However, the standards pertaining to children were consolidated into a single legal instrument, the Convention on the Rights of the Child, in 1989. This instrument unequivocally outlines the entitlements of every child, regardless of their place of birth, sex, descent, religion, or social origin. Despite India's constitutional guarantee of fundamental rights and childhood freedoms, child Labour remains a prevalent social problem. Millions of children are subjected to strenuous work for meager gains. The primary focus of this article is on legal protection for children against such exploitation from a human rights perspective.

 

Keywords: Human Rights, Child Labour, Violations, Magnitude, Constitutional, Legal, Institutional and Conventions

 

1. INTRODUCTION

In India, a child is defined as a person below the age of 18 years, as per the Juvenile Justice (Care and Protection of Children) Act, 2015. This law provides for the care, protection, and rehabilitation of children in need of care and protection, including those in conflict with the law. The act also outlines special provisions for the protection of the rights of children, including their right to education, health, and a safe and healthy environment. Additionally, the Constitution of India guarantees certain fundamental rights to all children, such as the right to life, education, and protection from exploitation.

 

Child Labour is a major hindrance to social development and remains a pressing issue, particularly in developing countries. It refers to the employment of children, denying them their basic rights and childhood experiences. The International Labour Organization (ILO) estimates that there are approximately 215 million children between the ages of five and fourteen working globally, often under harsh conditions and for extended hours. Such Labour can lead to adverse physical, emotional, and mental health consequences. Despite laws prohibiting child Labour, ILO (2013) reports that the number of children involved in hazardous work continues to increase, primarily due to poverty. While not all forms of child Labour are damaging, such as babysitting or newspaper delivery jobs, those that expose children to psychological stress, such as human trafficking, prostitution, and pornography, can have long-term effects.[1] Many international organizations have made efforts to eliminate child Labour, and various countries have enacted laws prohibiting it. However, achieving a complete ban on child Labour is a challenging task for developing countries, such as India.

 

 

1. IMPORTANCE OF HUMAN RIGHTS IN THE PERSPECTIVE OF INDIA

The protection of the human rights of children is important in the perspective of India for several reasons. Firstly, India has a large population of children, and their well-being is critical for the country's future development. The rights of children must be protected to ensure they have access to basic needs such as education, healthcare, and protection from exploitation. Secondly, India has a history of child Labour and trafficking, which has been a significant challenge for the country. Protecting children's rights can help prevent such practices and provide opportunities for them to lead a better life. Thirdly, India has a diverse population, and children from marginalized communities such as Dalits, Adivasis, and Muslims often face discrimination and violation of their rights. Ensuring their rights are protected is essential for promoting inclusivity and social justice in the country.[2]Finally, India is a signatory to the United Nations Convention on the Rights of the Child, which outlines the basic rights of children. India has an obligation to protect and promote these rights to fulfill its commitments under international law. Overall, protecting the human rights of children is crucial for India's social, economic, and political development. It is the responsibility of the government, civil society organizations, and individuals to work together to ensure that every child in India is protected and has access to their rights.

 

1. THE NEED FOR LEGAL PROTECTION OF CHILDREN IN INDIA PRE-CONSTITUTION

Firstly, children were vulnerable to exploitation and abuse due to their age and lack of resources, and legal protection helped to prevent such abuses. Child Labour, child marriage, and other forms of exploitation were prevalent in India at that time, and legal protection was necessary to protect children from such practices Secondly, legal protection provided a framework for the care and protection of neglected and delinquent children. Children who were orphaned, abandoned, or homeless required special care and attention, and legal protection ensured that they received the necessary care and support. Thirdly, legal protection helped to ensure that children had access to basic rights such as education, health care, and nutrition. Children who were denied these basic rights suffered from malnutrition, illiteracy, and poor health, which affected their development and future prospects. Finally, legal protection was important for children because it provided them with a sense of security and stability.[3] Children who were subjected to violence, abuse, and neglect often suffered from emotional trauma and psychological distress. Legal protection helped to provide a safe and secure environment for children, which was essential for their overall well-being. Overall, legal protection was crucial for the welfare of children in India before the Constitution, as it helped to prevent exploitation, ensure access to basic rights, and provide care and protection to vulnerable children

 

1. LEGAL PROTECTION OF CHILDREN IN INDIA PRE-CONSTITUTION

Before the Constitution of India came into existence, there were several legal protections for children in India that were based on various religious and social customs, as well as colonial laws. One such law was the Child Marriage Restraint Act, of 1929, which aimed to prevent child marriages by making them illegal. The act set the minimum age for marriage at 18 years for males and 14 years for females.[4] The law also prescribed punishment for those who violated the act. Another law was the Juvenile Justice Act, of 1925, which was enacted to provide for the care and protection of neglected and delinquent children. The act established juvenile courts and provided for the appointment of probation officers to help children in need of care and protection. Additionally, various religious and social customs also provided some legal protection to children in India. For example, under Hindu law, minors were protected by the concept of guardianship, which provided for the appointment of a legal guardian to take care of the minor's interests in case of the death or incapacity of their parents. Overall, while the legal protections for children in India before the Constitution were limited, there were still some laws and customs that aimed to protect the welfare of children.

 

1. NATIONAL LAW THAT PROTECTS THE HUMAN RIGHTS OF A CHILD

The Constitution of India provides for the protection of the rights of children. The constitution guarantees that children have the right to equality and that they cannot be discriminated against based on their caste, religion, gender, or economic status. The Constitution also ensures that every child has the right to life and personal liberty. The government has the responsibility to ensure that these rights are protected and that children are not exploited in any manner.

 

1. The Juvenile Justice (Care and Protection of Children) Act, 2015 provides for the care and protection of children who are in need of such care and protection. The act also provides for the rehabilitation and social reintegration of children who are in conflict with the law. This act was amended in 2019 to ensure the safety and security of children in the country. The act recognizes that children need to be treated differently from adults in the justice system, and it provides for a separate juvenile justice system. The act aims to provide a child-friendly environment for children in conflict with the law, and it also lays down procedures for their care and rehabilitation.[5]

 

1. The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to protect children from sexual abuse and exploitation. The act defines different types of sexual offenses that can be committed against children, and it lays down stringent punishments for such offenses. The act also lays down procedures for reporting, investigation, and trial of sexual offenses against children. The act recognizes that children who are victims of sexual offenses need to be treated with sensitivity and care, and it provides for their protection and support during the investigation and trial of such offenses.[6]
2. The Right to Education (RTE) Act, of 2009 makes education a fundamental right for all children between the ages of 6 and 14 years. The act provides for free and compulsory education for all children in this age group. The act also lays down certain standards for schools, such as the requirement for a certain number of teachers, infrastructure, and facilities. The act aims to ensure that every child in the country has access to quality education, irrespective of their social or economic status.[7]

 

1. The Child Labour (Prohibition and Regulation) Act, of 1986 prohibits the employment of children below the age of 14 in hazardous occupations and regulates the working conditions of children in non-hazardous occupations. The act recognizes that child Labour is a form of exploitation and that it deprives children of their childhood and their right to education. The act lays down penalties for employers who employ children in violation of its provisions. The act also provides for the rehabilitation and social reintegration of children who are rescued from child Labour.[8]

 

1. The National Commission for Protection of Child Rights (NCPCR) Act, 2005 establishes the NCPCR to protect and promote the rights of children in India. The commission has the mandate to monitor and review the implementation of laws and policies relating to the rights of children. The commission also investigates complaints relating to the violation of children's rights and recommends measures to address such violations.[9]

 

1. The Commission for Protection of Child Rights (CPCR) Act, 2005 establishes the CPCR at the state level to protect and promote the rights of children in the respective states. The commission has the mandate to monitor and review the implementation of laws and policies relating to the rights of children in the state. The commission also investigates complaints relating to the violation of children's rights in the state and recommends measures to address such violations.[10]

 

These laws ensure that the rights of children in India are protected, and they aim to provide a safe and secure environment for children to grow and develop. However, despite these laws, there are several challenges in the implementation of these laws. Some of the challenges are: Lack of awareness: Many children and their families are not aware of their rights, and they do not know how to seek redressal in

VI.  INTERNATIONAL LAW THAT PROTECTS THE HUMAN RIGHTS OF A CHILD.

There are several international legal instruments that protect the human rights of children. Some of the most important ones are:

1. The Convention on the Rights of the Child (CRC) is a comprehensive treaty that outlines the human rights of children, defined as any individual under the age of 18. The CRC sets out the civil, political, economic, social, and cultural rights of children, including the right to education, healthcare, protection from abuse and exploitation, and the right to express their views and have their opinions heard. The Convention also recognizes the importance of family and community support in the development and well-being of children.[11]
2. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict prohibits the recruitment and use of children under the age of 18 in armed conflict. This Protocol is aimed at protecting children from being used as soldiers or forced to take part in hostilities. It also establishes measures for their protection, recovery, and reintegration into society. The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography aims to protect children from all forms of exploitation and abuse, including trafficking, forced Labour, and sexual exploitation. The protocol prohibits the sale of children, child prostitution, and child pornography, and requires states to take measures to prevent and punish these crimes.[12]
3. The International Covenant on Civil and Political Rights (ICCPR) is a treaty that protects the civil and political rights of all individuals, including children. This includes the right to life, freedom of expression, freedom of religion, and the right to a fair trial.[13]
4. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) is a treaty that protects the economic, social, and cultural rights of all individuals, including children. This includes the right to education, healthcare, social security, and the right to work and participate in cultural life.
5. The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly in 1948, which sets out the fundamental human rights and freedoms that should be guaranteed to all individuals, including children. The UDHR provides a framework for the protection and promotion of human rights and has been influential in the development of subsequent human rights treaties and conventions.[14]

Together, these legal instruments provide a framework for governments to protect and promote the rights of children, and hold them accountable for any violations. They also provide a basis for advocacy and activism by civil society organizations and individuals to promote the rights of children, and to hold governments accountable for their obligations under these treaties and conventions.

 

1. LEGAL FRAMEWORK FOR CHILD

LABOUR IN INDIA

1. Overview of the Child Labour (Prohibition and Regulation) Act, 1986:

The Child Labour (Prohibition and Regulation) Act, of 1986, is the primary law governing child Labour in India. The Act seeks to prohibit the employment of children under the age of 14 in hazardous occupations and regulate the working conditions of children in non-hazardous industries. The Act also mandates that children between the ages of 14 and 18 should not be employed in hazardous occupations.

The Act establishes penalties for employers who violate the law and also provides for the rehabilitation of rescued child Labourers. The government has also notified a list of hazardous occupations and processes in which the employment of children is prohibited.

 

1. The loopholes and limitations of the act:

Despite the existence of the Child Labour (Prohibition and Regulation) Act, of 1986, child Labour remains a pervasive problem in India. One of the key limitations of the Act is that it only prohibits the employment of children in hazardous occupations, and does not cover all forms of child Labour. As a result, children can still be found working in various industries, such as domestic work, agriculture, and the informal sector. Another limitation of the Act is the inadequate enforcement of the law. The enforcement mechanisms are weak and underfunded, and many employers who violate the law are not held accountable. Additionally, there is a lack of awareness and understanding of the law among both employers and the general public. Furthermore, the Act does not address the root causes of child Labour, such as poverty and lack of access to education. This limits the effectiveness of the Act in addressing the problem of child Labour. Lastly, the Act has been criticized for not providing adequate protection for children between the ages of 14 and 18 who work in non-hazardous industries. Such children are often employed in harsh working conditions, which can impact their physical and mental health.

Overall, the Child Labour (Prohibition and Regulation) Act, 1986, has several limitations and loopholes, which need to be addressed to effectively combat the problem of child Labour in India.

 

1. INTERNATIONAL CONVENTIONS ON CHILD LABOUR

1. Overview of the Convention on the Rights of the Child,

The Minimum Age Convention, and The Worst Forms of Child Labour Convention: The Convention on the Rights of the Child (CRC) is an international human rights treaty that sets out the civil, political, economic, social, and cultural rights of children.[15] The CRC recognizes that children are entitled to special protection and assistance, and obligates States to take measures to protect children from economic exploitation and hazardous work. The Minimum Age Convention is another international Labour convention that prohibits the employment of children below a certain age in hazardous work. The Convention sets out minimum age requirements for employment and provides for the elimination of child Labour.[16] The Worst Forms of Child Labour Convention is an International Labour Organization (ILO) convention that aims to eliminate the worst forms of child Labour. The Convention defines the worst forms of child Labour as work that is likely to harm the health, safety, or morals of children and provides for measures to prevent and eliminate such work.

 

1. India's ratification of these conventions:

India is a signatory to the Convention on the Rights of the Child and ratified the convention in 1992. India has also ratified the Minimum Age Convention and the Worst Forms of Child Labour Convention. As a result of ratifying these conventions, India is obligated to take measures to protect children from economic exploitation and hazardous work. However, India's implementation of these conventions has been criticized by various human rights organizations. India's legal framework for child Labour, particularly the Child Labour (Prohibition and Regulation) Act, of 1986, has been found to be insufficient in addressing the problem of child Labour. The enforcement mechanisms are weak, and many employers who violate the law are not held accountable. Additionally, there is a lack of awareness and understanding of the law among both employers and the general public. Furthermore, poverty and lack of access to education are key drivers of child Labour in India. Despite India's ratification of these conventions, there has been limited progress in addressing these root causes of child Labour.

 

Overall, India's ratification of these international conventions on child Labour is an important step toward protecting the human rights of children. However, there is a need for continued efforts to effectively implement the conventions and address the problem of child Labour in India.

 

1. INSTITUTIONAL FRAMEWORK FOR CHILD PROTECTION

1. Overview of the National Commission for Protection of Child Rights:

The National Commission for Protection of Child Rights (NCPCR) is a statutory body established under the Commissions for Protection of Child Rights Act, 2005. The NCPCR is responsible for protecting and promoting the rights of children in India and is mandated to ensure that all laws, policies, and programs are in the best interests of children. The NCPCR has several functions, including monitoring the implementation of child rights, conducting inquiries into violations of child rights, and recommending measures to prevent such violations. The NCPCR also has the power to take suo motu action and file cases in court to protect the rights of children.[17]

 

1. The effectiveness of the institution:

The effectiveness of the NCPCR in protecting the rights of children in India has been a topic of debate. On the one hand, the NCPCR has played an important role in addressing various issues related to child protection, including child Labour, child marriage, and child trafficking. The NCPCR has also made recommendations to the government on improving the legal framework for child protection, such as the need to amend the Child Labour (Prohibition and Regulation) Act, 1986.

However, the NCPCR has also faced criticism for its limited powers and resources. The NCPCR does not have the power to prosecute offenders or enforce its recommendations, and its effectiveness has been hindered by the weak enforcement mechanisms of the legal framework for child protection. Additionally, the NCPCR's jurisdiction is limited to matters related to the rights of children, and it does not have the power to address broader socio-economic issues that contribute to child exploitation and abuse.[18]

 

Despite these limitations, the NCPCR has played an important role in advocating for the rights of children in India. The NCPCR has worked to raise awareness about child protection issues and has colLabourated with civil society organizations to implement programs to protect children from exploitation and abuse.

 

Overall, while the effectiveness of the NCPCR in protecting the rights of children in India is limited by various factors, the institution plays an important role in advocating for the rights of children and promoting child protection in the country.

 

1. ENFORCEMENT MECHANISMS

1. Overview of the enforcement mechanisms of child Labour laws:

The enforcement of child Labour laws in India is the responsibility of several government agencies, including the Labour department, police, and district administration. These agencies are responsible for conducting inspections to identify instances of child Labour, prosecuting violators, and providing rehabilitation and support to rescued children.

 

Under the Child Labour (Prohibition and Regulation) Act, 1986, employers who employ children in prohibited occupations or processes can be punished with imprisonment and fines. The act also provides for the establishment of special courts for the speedy trial of offenses under the act.[19]

 

1. The effectiveness of the mechanisms:

Despite the existence of legal provisions and enforcement mechanisms, the effectiveness of the enforcement mechanisms of child Labour laws in India has been limited. The weak enforcement mechanisms of the legal framework for child protection, as well as corruption and collusion among employers and officials, have hindered the effective implementation of child Labour laws.[20]

Additionally, there is a lack of awareness and understanding of child Labour laws among employers, which makes it easier for them to exploit children without fear of being caught or punished. The poor working conditions and lack of access to education, healthcare, and other basic services make children from poor families more vulnerable to exploitation and abuse.

 

1. CHILD LABOUR IN THE INFORMAL SECTOR

1. Overview of the prevalence of child Labour in the informal sector:

Child Labour is most prevalent in the informal sector, which includes small-scale enterprises, family businesses, and home-based work. Children working in the informal sector are often employed in hazardous and exploitative conditions, such as working in mines, quarries, and brick kilns.

 

1. The challenges faced in addressing child Labour in the informal sector:

Addressing child Labour in the informal sector is challenging due to the nature of the sector. Many informal sector employers operate outside the legal framework, which makes it difficult for authorities to regulate their activities. Additionally, the informal sector is characterized by the lack of formal contracts and social security benefits, which makes it easier for employers to exploit child Labour. Furthermore, poverty and lack of access to education are key drivers of child Labour in the informal sector. Many families rely on the income generated by their children's work to survive, and the lack of access to education limits their opportunities for better-paying jobs.[21]

 

1. PROGRAMS AND POLICIES FOR CHILD PROTECTION

1. Overview of the National Child Labour Project:

The National Child Labour Project (NCLP) is a government program aimed at rehabilitating children rescued from hazardous work and preventing child Labour in selected districts across India. The program provides education, vocational training, and financial assistance to rescued children and their families.

 

1. The effectiveness of the project:

The effectiveness of the NCLP in preventing and addressing child Labour has been mixed. While the program has succeeded in rehabilitating many children and providing them with education and training, its reach is limited to selected districts and its impact has been hampered by weak enforcement mechanisms and lack of funding.

 

Additionally, there is a need for a more holistic approach to child protection that addresses the root causes of child Labour, such as poverty and lack of access to education. The NCLP should be complemented with other policies and programs that address these broader socio-economic issues.

 

1. HUMAN RIGHTS VIOLATIONS IN

CHILD LABOUR

1. Analysis of the human rights violations associated with child Labour in India:

Child Labour is a violation of several human rights, including the right to education, health, and protection from economic exploitation. Children engaged in child Labour are often exposed to hazardous and exploitative working conditions, which can result in physical, psychological, and emotional harm. They are also deprived of their right to education and the opportunity to develop their full potential.

 

Children engaged in child Labour are also vulnerable to trafficking and other forms of exploitation, such as sexual exploitation and forced Labour. They are often denied access to healthcare and basic services and are at risk of developing long-term health problems due to exposure to hazardous working conditions.

 

1. The Role of poverty in perpetuating child Labour:

Poverty is a key driver of child Labour in India. Many families living in poverty rely on their children's income to make ends meet, which makes them vulnerable to exploitation by employers. The lack of access to education and social services, such as healthcare and affordable housing, also limits the opportunities for children from poor families, making them more likely to engage in child Labour.

 

Additionally, poverty and lack of access to education perpetuate intergenerational cycles of poverty, making it difficult for children from poor families to break free from the cycle of poverty and exploitation.[22]

 

1. CONCLUSION

Child Labour remains a significant problem in India, despite the existence of legal provisions and enforcement mechanisms. The prevalence of child Labour in the informal sector, weak enforcement mechanisms, and the role of poverty in perpetuating child Labour are some of the key challenges that need to be addressed to improve the protection of children's rights in India.

 

Recommendations for improving the legal protection of children's rights in India, with special emphasis on child Labour: To improve the legal protection of children's rights in India, it is important to strengthen the enforcement mechanisms of child Labour laws, increase awareness of child Labour laws among employers and the general public, and provide support and rehabilitation services to rescued children. Additionally, there is a need to address the root causes of child Labour, such as poverty and lack of access to education and social services, through policies and programs that provide economic opportunities and social protection to families living in poverty.

 

Finally, India should continue to ratify and implement international conventions and standards related to child Labour and ensure that its domestic laws and policies are in line with these standards.

 

 

 

 

 

 

 

 

 

 

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[1] The International Labour Organization (ILO), Global Estimates of Child Labour: Results and Trends, 2012-2016, International Labour Office, Geneva, 2017.

[2] Saiyadain, Mirza. "The Protection of Children's Human Rights in India." Journal of Human Rights and Social Work, vol. 4, no. 3, 2019, pp. 173-184.

[3] Bhattacharjee, Anindya. "Legal Protection for Children in India: A Historical Perspective." Indian Journal of Human Rights and Law, vol. 7, no. 2, 2019, pp. 32-41.

[4] Child Marriage Restraint Act, No. 19 of 1929, Acts of the Parliament of India.

[5] The Juvenile Justice (Care and Protection of Children) Act, 2015, as amended by Act No. 33 of 2019, India.

[6] The Protection of Children from Sexual Offences (POCSO) Act, 2012, India.

[7] The Right of Children to Free and Compulsory Education Act, 2009, India.

[8] The Child Labour (Prohibition and Regulation) Act, 1986, India.

[9] The National Commission for Protection of Child Rights Act, 2005, India.

[10] Commission for Protection of Child Rights (CPCR) Act, 2005, Act No. 4 of 2006 (India).

[11] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

[12] Treaty Series, vol. 2171, p. 227, United Nations, 25 May 2000.

[13] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

[14] Universal Declaration of Human Rights, G.A. Res. 217A (III) (Dec. 10, 1948).

[15] The Convention on the Rights of the Child (CRC), 20 November 1989.

[16] Convention concerning the Minimum Age for Admission to Employment (ILO Convention No. 138), 1973.

[17] National Commission for Protection of Child Rights Act, 2005, Act No. 4, § 3 (India).

[18] S. Das, "The Effectiveness of National Commission for Protection of Child Rights in India: Debates and Challenges," Journal of Child Rights and Policies, Vol. 5, Issue 2, 2021.

or

[19] Ministry of Labour and Employment, Government of India. "Child Labour Division." Available at: https://labour.gov.in/child-labour-division.

[20] National Commission for Protection of Child Rights. "Child Labour." (2019). Available at: https://ncpcr.gov.in/child-labour.

[21] Smith, "Addressing Child Labour in the Informal Sector," Journal of Development Studies, 48, 5 (2012), pp. 654-671, https://doi.org/10.1080/00220388.2011.643440.

[22] Smith, John. Child Labour and Poverty in India. (Cambridge University Press, 2019), 45-46.