Street Children Human Rights: A Socio-Legal Issue in India

The article 'Street Children Human Rights: A Socio-Legal Issue in India' by Sukriti Verma highlights the various acts and provisions that serve the object of protection of child rights.

Introduction

"Children are the world's most valuable resource and its best hope for the future."- John F. Kennedy

When a child is born in the privileged section of society, his mother and father leave no stone unturned to provide him with the best quality of life, that is available. A child born in a well-off household is seen as the future of the country, whereas a child born in a poor household is treated inhumanely. The better-off child will get proper education, a diet enriched with nutrients, adequate clothing, and a safe house to live in, whereas, on the other hand, the other child, born in a poor household will suffer for one proper meal in a day, slipper to wear, clothes to protect himself from heat and cold, in the harsh weather. Such children will be deprived of basic education.

Also, it is not an uncommon phenomenon to see such a child working in small stalls, cleaning tables in a restaurant, and selling petty items on the streets or roads at traffic lights, like roses, pens, balloons, toys, picking up rags, etc. They are the chunks of society that are looked down upon, they are found living on the streets with their parents, and they all can be seen begging also, doing circus tricks at traffic lights, just to have a meal. They are the street children of India.

But the question arises how do they become who they are? What is the reason behind such a number of street children in India? There are multiple reasons that lead to such an unfortunate situation, such as poverty of the parents, parents' unemployment, human trafficking, domestic violence, and no adequate measures taken by the government to provide for their proper accommodation, parents' neglect, orphan children, abandoned children, unwanted children, migration, etc.

According to World Health Organisation (W.H.O), every child has a reason to be on the streets, while some are forced on the streets by desperation and the realization that they have nowhere else to go, some are out on the streets for excitement, and freedom.

The U.N.I.C.E.F. (United Nations International Children's Emergency Fund) definition of a Street Child as boys and girls aged under 18 years old, for whom "The Street" (including unoccupied dwellings and wasteland) has become home and/or their source of livelihood and are inadequately protected or supervised.[1]

Important provisions of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 of India

Section 2(ii) of the Act defines children as someone who has not completed 14 years of age or as may be specified in the Right of Children to Free and Compulsory Education Act, 2009.

According to section 3 of the Act, there is a general prohibition on the employment of children in any occupation, there are certain exceptions to it:

1. when the child is working to help his family or family enterprise, if it's not in a hazardous environment, then he can do so after school hours or during vacations.

2. he works as an artist in the audio-visual entertainment industry, including the advertisement, films, television serials, or any such other entertainment or sports activities except the circus.

In the case of Oriental Insurance Co. Ltd. v. Rathnamma[2], it was held that if the employer employs a child, he shall be liable to suffer the penalty under section 14 of the act, i.e. punishment of 6 to 24 months and a fine of 20 to 50 thousand rupees, along with the compensation paid to the child.

Other Acts for the Benefit of Street Children:

Right to Education Act, 2009

Under section 3 of the Act, every child has the right to compulsory and free education in a neighbourhood school.

In the case of Bachpan Bachao Andolon v. Union of India[3], it was held that by virtue of Section 3, 2009 Act, every child of the age of 6-14 years shall have a right to free and compulsory education in a neighborhood school till completion of elementary education.

Commissions for protection of child rights act, 2005

Within the purview of this child, rights mean the children's rights adopted in the United Nations Convention on the Rights of the Child on the 20th of November 1989, and ratified by the Government of India on the 11th of December, 1992. Under this Act, the central government constitutes a body called the National Commission for Protection of Child Rights for the protection of child rights as defined under the act.

The functions of the act are as follows:

(a) examine and review the safeguards by law for the protection of child rights and also recommend measures for efficient implementation;

(b) present to the Central Government annually reports upon the working of safeguards;

(c) inquire into any violation/ abuse of any child's rights and further also recommend initiation of proceedings.

(d) examine all factors that hinder the rights of children affected by terrorism, communal violence, riots, domestic violence, trafficking, maltreatment, natural disaster, torture and exploitation, pornography, HIV/AIDS, and prostitution. Further, recommend appropriate adequate remedial measures;

(e) look into the children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in conflict with the law, juveniles, children without families, and children of prisoners. Also, recommend appropriate remedial measures;

(f) study the treaties, and international instruments and undertake periodical reviews of existing policies, programs, and other activities on child rights. Further, make recommendations for the same;

(g) undertake and promote research in the field of child rights;

(h) spread child rights literacy.

(i) inspect or cause to be inspected any juvenile custodial home.

(j) inquire into complaints and take suo motu notice of matters relating to,—

(i) deprivation and violation of child rights;

(ii) non-implementation of laws providing for the protection and development of children;

(iii) non-compliance with policy decisions, guidelines, or instructions mitigating hardships to ensure the welfare of the children and provide relief to such children,

(k) such other functions as it may consider necessary for the promotion of child rights

Protection of Children from Sexual Offences Act, 2012 also called the POCSO Act

This act protects children from all kinds of sexual abuse and provides strict punishment for the offence committed under this act such as child pornography, sexual abuse, sexual assault, and penetrative sexual assault.

Juvenile Justice (Care and Protection of Children) Act, 2015

This act was enacted with reference to the power given under Articles 39 (e) and (f), 45, and 47 to provide for the protection of children. The United Nations Convention on the Rights of Children, which was ratified by India on 11th December 1992, required the States to undertake appropriate measures in case of a child alleged as or accused of, violating any penal law, including:

(a) treatment of the child in a manner consistent with the promotion of the child's sense of dignity and worth

(b) reinforcing the child's respect for the human rights and fundamental freedoms of others

(c) taking into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

The act provides for procedures to be followed for children in conflict with the law, children in need of care and protection, rehabilitation and social re-integration, adoption, and child welfare committee, and also deals with offences against children.

Categories of Child Labour

The Children performing child labour can be categorized into several categories:

• Child Labour: Children doing paid/ unpaid work in factories, industries, mines, establishments, shops, etc.

• Street Children: these include rag pickers, newspaper vendors, small item vendors (with or without a four-wheeled moving stall), fruits and vegetable sellers,

• Migrant Children: children who have migrated from other areas for the reason of distress seasonal migration, or for search of better opportunities in work from villages to the cities.

• Children exploited for sexual activities: children are being kidnapped and pushed into sexual activities for money by human traffickers.

• Working Children: children employed in family agricultural work or business work, by skipping off their school hours.

• Children working in households: young female children are employed as maids or household help in the residential houses for cooking, and cleaning.

• Bonded Labour: children who are been pledged by their parents for paltry sums of money or are paying off their inherited debt of their fathers.

Constitutional Provisions for the Protection of Street Children

Street children are no different from Human Beings. They have the same human rights, and the same rights, a child has. There can be no inferiority between a street child and a child living in a well-off family. However, the street child will be needing extra attention and protection from the State. The following constitutional provision can be seen in the direction of the protection of street children.

Article 21: It guarantees the right to life and personal liberty. This includes the right to live with dignity and not mere existence. It means a life free from servitude, slavery, and bonded labour, it not only includes the right to food, water, clothing, and a safe shelter, it also includes the right to such an environment where, a child not only survives but undergoes holistic development, and his physical, and social well-being is taken care of.

In the case of Unni Krishnan v. State of A.P.[4] and Mohini Jain's[5] case, it was enumerated that the right to education is implicit in Article 21. Every child up to 14 years has a fundamental right to free education. After that, it is subject to limits of economic capacity and development of the State.

It was held in the case of Bhabani Prasad Jena v. Orissa State Commission for Women[6] that the DNA test may not only be prejudicial to the rights of the parties but may have a devastating effect on the child that is because the DNA test being an extremely delicate and sensitive aspect. Therefore, a cautious and judicious approach is prescribed, considering that such infringement on the right to privacy.

Article 21A

In the case of Ashoka Kumar Thakur v. Union of India[7], it was held that total compliance with Article 21-A means that there is a necessity of providing good quality education to all children aged six to fourteen who regularly attend schools,

In the case of Pramati Educational and Cultural Trust v. Union of India[8], the constitutionality of Article 21-A and Article 15(5) and the Right of Children to Free and Compulsory Education Act, 2009 was upheld.

Article 24

It was held in the case of M.C. Mehta v. State of T. N[9], the employment of children in hazardous industries is prohibited and directions of the Supreme Court were issued to that effect.

Article 39(e): It States that the state shall, in particular, direct its policy toward securing the health and strength of children of tender age are not abused and that they are not forced by the economic need to enter occupations unsuited to their age or strength.

Article 39(f): It states that the state shall direct its policy towards securing that 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.

Article 45: The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.

It was held in the case of Bandhua Mukti Morcha v. Union of India[10] and Bandhua Mukti Morcha v. Union of India[11], that no State neither the Central Government nor any State Government has the right to take any action which will deprive a person of the enjoyment of the basic essentials to live with dignity.

Universal Declaration of Human Rights

The preamble is based upon the principles of freedom, justice, and peace to protect the inherent dignity and equal and inalienable rights of all members of society.

• Article 1 states that all humans are born with equal dignity and rights
• Article 3 states that everyone has the right to life, liberty, and security of person.
• Article 4 states that no one shall be a victim of slavery, servitude and all forms of slavery is prohibited.
• Article 5 states that no one shall suffer torture or cruel, inhuman, or degrading treatment or punishment.
• Article 7 states that all persons are equal before the law.
• Article 8 states that everyone has the right to an effective remedy for violation of fundamental rights before a competent national tribunal/ court.
• Article 10 states that everyone has an equal right to a free and fair public hearing by a competent jurisdiction.
• Article 23 states the right to work in favorable conditions of work and free choice of employment.
• Article 25(1) states that everyone has a right to a standard of living for the health and well-being of himself and his family.
• Article 25(2) states that motherhood and childhood are entitled to special care and assistance. Also, all children born out of the wedlock or not are entitled to the same social protection, i.e. discrimination or inferiority shall be done against them.
• Article 26(1) states that everyone has the right to education which shall be free and compulsory in the elementary stages,
• Article 26(2) states that the education means full development of human personality and also of respect towards fundamental rights and human rights.
• Article 29(1) states that everyone has duties to the community in which alone the free and full development of his personality is possible.

United Nations Conventions on the Rights of the Child

Article 1 of the convention enumerates someone below the age of eighteen years as a child. Article 2 that the state should ensure that there should be no discrimination of any kind, on parent's or legal guardian's race, colour, sex, language, religion, political or another opinion, national, ethnic or social origin, property, disability, birth or other status. Article 4 states that the state shall protect the children rights recognized in the convention and shall take all possible measures with regard to economic, social rights to the maximum extent of their available resources and cultural rights and to the extent of international cooperation.

Under Article 6, the state has to ensure the development of the child and also says that the child has an inherent right to life, and the state shall ensure to protect that to the maximum extent possible. The whole document works towards eliminating the evil against children, and also in children. The document was built on the line of the United Nations Human Rights with all the details about child protection. Also, if any, child by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, then the states are obliged to provide them the same.

Role of Judiciary

Special Juvenile Court is established in every court so that the cases related to child's rights are heard effectively and speedily. The court also has the power to refer the child to rehabilitation and social re-integration. The Supreme Court and the High courts also have the right to take Suo moto cognizance in cases where the child's rights are being exploited or neglected. The role of the judiciary is to ensure whenever a case comes up before it, serves justice and best relief to the child, and also to amend the law to make it suitable for the protection of the child's rights.

Role of NGO and Media

NGOs that work for the betterment of children carry out certain tasks for the promotion of the protection of child's rights:

1. They carry out awareness programs to educate various workplaces about child rights.
2. They also educate children about their rights, whether they go to school or not, by visiting slums and villages.
3. Some NGOs also work towards serving meals to the homeless and familyless children
4. NGOs fight for stronger anti-child labour laws by providing compelling evidence that forms the basis of legislation.
5. They keep bringing out-of-school children, including child labourers back to the classroom.
6. And other similar programs which work towards the protection of child rights.

The role of media is to highlight and spread awareness of cases of child's rights concerns, so it voices the concerns and gets justice done faster.

Conclusion & Suggestion

It is truly said that "every child is a different kind of flower, altogether make this world a beautiful garden." The street children, neglected by the state, shall no more be looked down upon. They are as human as any other child, and they are not guilty of the position they are living. The state shall ensure every child on the street, shall be sent to the school for basic elementary education. This can be done by assembling a new task force, that will be spotting kids on the street and will work towards sending them to school. The state shall also provide proper accommodation facilities to them, by the means of foster homes or shelters.

Although many NGOs and government organizations are working towards protecting the interest of the child, still it is hard to see the plight of these children. It is somehow also affecting the mental peace of the person because that person is reliving the trauma of the child upon seeing him. If the child is an orphan, the government shall appoint rigorous measures for facilitating their rehabilitation and adoption.

I would like to conclude by saying that street children demand special attention from the government, and hence the government should stop seeing the other way.

References

[1] Street Children-Human Rights, A Socio-Legal Issue In India, Available Here

[2] (2000) 3 LLN 630 (Kant).

[3] (2011) 5 SCC 1

[4] (1993) 1 SCC 645

[5] (1992) 3 SCC 666

[6] (2010) 8 SCC 633.

[7] (2008) 6 SCC 1

[8] (2014) 8 SCC 1

[9] (1996) 6 SCC 756.

[10] (1984) 3 SCC 161

[11] (1991) 4 SCC 177

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