3. State Party ReportsIndia[Parts of State party report relating specifically to relevant legal minimum ages, and articles 37 and 40](...) II. DEFINITION OF THE CHILD 65. The Census of India defines persons below the age of 14 as children. While making use of standard demographic data, social scientists include females in the age group of 15 to 19 years in the category of the girl child. Most of the government programmes on children are targeted to the age group below 14 years. In accordance with the Constitution, no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment (article 23). The legal conception of a child has tended to vary depending upon the purpose. A few illustrations from the law in India are given below. Criminal Law: Nothing is an offence which is done by a child under Indian Penal Code the age of seven years. The age of criminal responsibility is raised to 12 years if the child is found to have not attained the ability of understanding the nature and consequences of his act. (...) Juvenile Law: A juvenile is a child who has not completed the age of Juvenile Justice 16 years in the case of boys, or the age of 18 years Act, 1960 in the case of girls. A delinquent juvenile cannot be sentenced to imprisonment. If a juvenile who has attained the age of 14 years commits an offence of a serious nature and it is found not to be in his interest or in the interest of other juveniles to send him to a special home, the juvenile court may order the delinquent juvenile to be kept in safe custody in such place and manner as it thinks fit. Detention in police stations or jails is specifically prohibited under the Act. (...) 66. The word "child" has been used in various legislation as a term denoting relationship; as a term indicating capacity; and as a term of special protection. Underlying these alternative specifications are very different concepts of the child. These include viewing children as a burden, which invokes rights to maintenance and support; regarding children as undergoing temporary disabilities, making for rights to special treatment and special discrimination; treating children as specially vulnerable for ensuring rights of protection; and recognizing children as resources for the country's development, necessitating their nurturing and advancement. 67. The question of review of the definition of the ?child?, in the light of article 1 of the Convention on the Rights of the Child has been referred to the Law Commission of India for its consideration while undertaking a comprehensive review of the Code of Criminal Procedure and the Indian Penal Code. The Law Commission has already reviewed the Code of Criminal Procedure and is likely to undertake a comprehensive review of the Indian Penal Code and the Indian Evidence Act shortly. Age of the child: a dilemma 68. Legal enactments invoke differential age-specifics creating a dilemma whether the same human being is or is not a child, depending upon the law which is being invoked in a given case. Given the fact that a deprived child's birth is either inadequately or incorrectly recorded, the reliability and impact of the laws cannot be fully regulated in terms of age. The laws which relate to transgression by the child, are under the general rubric of ?Juvenile?, which distinguishes treatment vis-à-vis the adult for offences like begging, stealing, drug taking, peddling or crime. Free legal aid is available under the Public Utility Litigation provisions. But the disparity between the age-identified child and the laws applicable in terms of maturity levels and the child's ability to articulate needs, requires congruent thinking in policy, law statements and their enactments. 69. The acceptance of the definition of the Child given in the Convention on the Rights of the Child is likely to have implications on programme planning and budgetary provisions. The Government of India is, therefore, reviewing the legislation and is considering adopting the definition of the child set out in article 1 of the Convention, wherever it is feasible and applicable, so that the rights of children are protected in the society under all circumstances. (...) VIII. SPECIAL PROTECTION MEASURES (...) B. Children in conflict with the law (articles 37, 39 and 40) 269. It would be realistic to speak of "Law in conflict with childhood" rather than of "children in conflict with law", for, more often than not, it is the social and legal systems which deny innocent children their right to development and lead them to anti-social acts and delinquency. Criminal law and procedure have long made concessions to children in a number of areas. These include immunity from criminal responsibility (sections 82 and 83 of the Indian Penal Code), the consent of the child not being treated as proper consent for exemption from guilt (section 90 of the Indian Penal Code), victimization of children subject to heavier penalties, diversion to non-criminal courts in cases of juvenile crime, sentencing to non-criminal sanctions and reformatory sentences on being found guilty, non-application of the death penalty to child convicts, the establishment of separate custodial and correctional institutions and removal of any kind of stigma against them. These have been part of Indian criminal jurisprudence for more than a century. During the past decade the approach of law towards neglected, destitute and delinquent children was further liberalized and rationalized with the enactment of the Children's Act in 1960 and later the Juvenile Justice Act in 1986. 1. Juvenile delinquents 270. Over the years, the process of social development in India not only led to changes in the family structure and values, but has also resulted in an increase in social problems like destitution, and juvenile delinquency. The Government of India has introduced various legislation and programmes to minimize these social problems. A well planned juvenile justice system is in operation comprising juvenile welfare boards, juvenile courts, observation homes, juvenile homes, special homes and after-care organizations. 271. With a view to provide a uniform pattern of justice to juveniles throughout the country, the Juvenile Justice Act 1986 came into force in 1987. The Act has brought a change in the upper age limit of juveniles (from the earlier age limit of 21 years for both males and females) to 16 years for males and 18 years for females. The Act provides for the care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles, and lays down a uniform legal framework to ensure that no child under any circumstances is lodged in jail or kept in police lock-up. The Act provides for a different approach in the processing of neglected juveniles vis-à-vis that of delinquents. While neglected children are produced before juvenile welfare boards, delinquents are dealt with by the juvenile courts. 272. The Juvenile Justice Act 1986 was enacted to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to, and for the handling of delinquent juveniles. From the point of view of the welfare of children, the Indian statute places children needing protection into two categories: neglected children and delinquent children. Neglected children are placed under the protection of welfare boards. For tackling the problem of delinquent children, children's courts were constituted under the Act. 273. If a juvenile is temporarily or permanently deprived of his or her family environment, he or she is entitled to special protection and assistance provided by the State and alternative care is to be ensured. When searching for appropriate alternative care, due attention is to be paid to giving the juvenile an environment as similar as possible to that in which he/she has previously been living. It has been considered essential to develop conditions that will ensure for the juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behaviour, will foster a process of personal development and education that is as free from crime and delinquency as possible. One of the avowed objectives of the Act is to bring the operation of the juvenile justice system in the country into conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice. These universally accepted principles and standards have been incorporated in various provisions of the Act. 2. Neglected juveniles |
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274. The Juvenile Justice Act provides an elaborate framework for taking care of neglected and abused children. Children whose parents are unfit or incapacitated to exercise care or control over the juvenile, or who are likely to be abused or exploited for immoral or illegal purposes, are included in the definition of the neglected juvenile. The Act provides for production of neglected juveniles before the juvenile welfare boards constituted under the Act, which function as a bench of magistrates. Keeping in view the facts of each case, the board may order the placement of the neglected child in a juvenile home, or under the care of a parent, guardian or other fit person, with such person guaranteeing the good behaviour and well-being of the juvenile. 3. Delinquent juveniles 275. Under the Juvenile Justice Act, a juvenile who has committed an offence can be dealt with only by a juvenile court. A juvenile court differs from other courts in its philosophy, objectives and functions. The juvenile court is constituted by qualified magistrates and is assisted by honorary social workers. Special knowledge of child psychology and child welfare is an essential qualification for every member of the court. The proceedings in respect of a juvenile are not public and only specified persons are allowed to attend the proceedings. The disclosure of name, address or other particulars relating to a juvenile which can lead to identification of such juvenile is prohibited. 276. No delinquent juvenile can be tried in the same way as an adult under the court of criminal procedure. A delinquent juvenile can also not be charged and tried with an adult. 277. Under the Act a juvenile cannot be sentenced to death or imprisonment. If the court comes to the conclusion that the child has committed the offence charged with, then it can pass several types of orders ranging from releasing the child on probation of good conduct and placing him under the care of any parent/guardian or fit institution to directing that the juvenile be sent to a special home. 4. Rehabilitation 278. Rehabilitation has been made an integral part of the institutional programmes. Every neglected and delinquent juvenile has not only to be provided accommodation, maintenance and facilities for education, vocational training and rehabilitation but also the facilities for development of his character and necessary training for protecting himself against exploitation. The importance of after-care has been recognized as essential for rehabilitation of the juvenile in the community. The Act provides for the setting up of after-care organizations for juveniles after they leave the juvenile homes or special homes, to help their readjustment, resettlement and rehabilitation as self-reliant, socially useful citizens. Many state governments have established comprehensive after-care schemes, the objectives of which are the following:
279. As a follow-up measure contemplated under the Juvenile Justice Act, the Scheme for Prevention and Control of Juvenile Social Maladjustment has been implemented by the Ministry of Welfare since 1986-87 to provide financial support to states/Union territories for setting up or upgrading observation homes/juvenile homes/special homes/after-care organizations and for the training of functionaries. 280. As a result of these efforts, juvenile crime in India has declined over the years and during 1992 accounted for 0.7 per cent of all crimes under the Indian Penal Code. An analysis of sex and age distribution of juveniles apprehended during 1991 indicates that the age group 12-16 years is comparatively more susceptible to criminal activities. [Further information in State party report relating to the administration of juvenile justice](...) IV. CIVIL RIGHTS AND FREEDOMS 95. The Indian Constitution presents an impressive list of civil and political rights for children. 96. While the right of equality before the law and equal protection of the law is available to any person including children, article 15 (3) empowers the State to have special laws for children, solely intended to enable them to enjoy the fruits of the guarantee of equality. Examples of such laws include the Child Labour Prohibition laws and the Juvenile Justice Act. Class legislation is thus not only constitutionally permissible but also constitutionally mandated. (...) 99. Besides, all the seven sets of Fundamental Rights in the Constitution are available to children with as much authority and accessibility as to adult citizens. 100. There is a large body of case law which has not only developed the application of these rights to children but has also expanded their scope in order to make them meaningful. This was accomplished by the judiciary through harmonious construction of Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) of the Constitution side by side with India's treaty obligations and obligations under the Convention on the Rights of the Child. Thereby, the Indian judiciary has made a singular contribution for the universal development of human rights generally, and of child rights in particular. 101. It may be concluded that in the matter of civil rights and freedoms, the laws of the country stand very much in line with the global human rights movement and the Convention on the Rights of the Child. India's ratification of the Convention in 1992 has generated, renewed concern regarding the policies and priorities, obligations and commitments vis-à-vis children. In order to translate this concern into concrete action, the provision of trained personnel and greater accountability vis-à-vis legal obligations are being attempted. The courts have begun to take child rights and principles governing them seriously and have gone to the farthest limits to give every child, particularly the neglected and the delinquent, an opportunity to enjoy the minimum guarantees of law. 102. India is a union of states, and under the scheme of governance envisaged by the Indian Constitution, all legislative powers are organized under three lists given in the Seventh Schedule. List I (Union List) contains matters in which the Union Parliament has exclusive power to make laws. Similarly, in respect of items in List II (State List), the State Assemblies have exclusive power to make laws. List III (Concurrent List) contains matters in which both Parliament and State Assemblies have power to legislate. On matters not enumerated in List II or III, Parliament has residuary powers of legislation (articles 246 and 248). 103. While public order, police, prisons, reformatories, borstal institutions, relief and the disabled, etc., are subjects of List II, a number of related matters like criminal law and procedure, family law, civil procedure, vagrancy, economic and social planning, social security, welfare of labour, education, etc., many of which relate to the rights of children, are items in List III. As such the status of legislative protection available to children and the extent of enforcement of laws affecting their entitlements are dependent upon state governments. 104. There have been some positive developments in the period following the ratification of the Convention on the Rights of the Child. Following an international conference on the subject in March 1994, an "Alliance for the Child" has been formed at the national level with the Chief Justice of India as its chairperson. This body has inspired an active interest in the problems of children viewed in the perspective of their rights. Senior judicial officers, lawyers and police personnel have attempted to address the problems of children, particularly in the context of the implementation of the Juvenile Justice Act. 105. The National Human Rights Commission set up in 1993 has been taking an active interest in the implementation of children's rights in the country. The Commission has been examining issues like child labour and related issues such as compulsory primary education, child marriages, child prostitution, female foeticide and infanticide in depth and is supportive of efforts by the non-governmental organizations and activists to further children's rights. (...) D. Right to personal liberty, bodily integrity and privacy (...) 113. The conditions in custodial institutions for delinquent and destitute children have been improved in a series of cases taken to court. 114. Humane approaches towards children in conflict with the law have been adopted under strict directions of the court. (...) |
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117. The right to privacy implies that there should be in camera trials of all cases involving juveniles. The present system provides this protection, and in the reporting of cases involving juveniles or rape victims the name or address of the victim is not mentioned. However, this protection has not been extended to include law journals or the publication of photographs of the victim. (...) 119. Any generalization on the status of children's rights in the whole of India is risky, unfair and contrary to realities on the ground, despite instances of relative neglect of children's welfare and uneven enforcement of laws in some parts of the country. Moreover, the performance of the higher judiciary has been particularly noteworthy in the context of enforcing legislation beneficial to children. It is through the high courts and the Supreme Court that judicial remedies and procedural standards have been evolved and accountability established on issues of human rights. The public interest litigation which is a unique feature of the Indian judicial system has been successfully used in guarding the rights of children. 120. Priorities given for follow-up action under civil rights and freedoms are:
Source: Initial reports of States parties due in 1995: India, UN Doc. CRC/C/28/Add.10, paras. 65-69, 95-96, 99-105, 113-114, 117, 119-120, 269-280 (7 July 1997) |