India

Summary and Analysis

The Government of India ratified the Convention on the Rights of the Child (CRC) on November 12, 1992 without reservation. In 1997, the Supreme Court of India ruled that any “international convention not inconsistent with the fundamental rights and in harmony with this spirit must be read into these provisions to enlarge the meaning and content thereof to promote the object of the constitutional guarantee.”[2] The Supreme Court ruled likewise in two other cases in 2002[3] and 2004.[4] In the 2004 Soman vs. Geologist case, the High Court of Kerala ruled that “[i]t is a almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.” Accordingly, as long as the Convention on the Rights of Child does not conflict with domestic law, it is deemed incorporated in domestic and municipal law.

Hindu Law as coded in the Manusmriti was the chief source of law in ancient India. Following the Afghan-Turkic invasions, un-coded Shariat (Islamic Law) governed Muslims while the Manusmriti continued to apply for Hindus. This tradition of separate personal laws continues to this day, and no Uniform Civil Code exists in India. However, in 2000, the Central Government passed the Juvenile Justice (Care and Protection) Act, which does not differentiate between children of different religions. There are other Acts pertaining to the personal law of specific religions that also govern children.

The Guardian and Wards Act (1890) was the first legislation that empowered Indian courts to consider the views and preferences of children. In the early 20^th century, different States of British India passed Children’s Acts such as the Madras Children Act (1920), the Bengal Children Act (1922) and the Bombay Children Act (1924).

However, in the early years of independent India, the Indian judiciary faced severe problems in the execution of law pertaining to children. This was due to a crippling lack of child-care infrastructure, lack of a separate judicial process for children and also due to multiple laws governing children that differed across States and religions.

In 1960, the Central Government of India passed the Children Act (1960) with a view to make uniform the laws and institutions governing and protecting children. This Act established separate Child Welfare Boards to handle cases relating to neglected children. It also created the position of a probation officer who could “advise and assist neglected or delinquent children.”[5] In addition, it established separate Children’s Courts for cases related to delinquent juveniles, thereby separating the judicial process for delinquent and neglected children.

The Central Government followed this up in 1986 by passing the Juvenile Justice Act (1986). Like the Children Act (1960), the Juvenile Justice Act (1986) authorized the establishment of separate Juvenile Welfare Boards for neglected children. After ratifying the Convention on the Rights of Child, the Central Government passed a new Act known as the Juvenile Justice (Care and Protection) Act (2000) with a view to incorporate the principles of the Convention and further streamline the judicial system for children. This Act repealed the Juvenile Justice Act (1986).

The Juvenile Justice (Care and Protection) Act (2000) has ensured that irrespective of religion, children in need of care and protection are provided the benefits of a separate judicial process. However, in addition to the Juvenile Justice (Care and Protection) Act (2000), Hindu and Muslim personal laws also govern children in India.

Ancient Hindu personal law has been re-coded by various Acts passed by the Central Government since independence in 1947, while Muslim personal law relies upon the un-coded Shariat. Secular Acts such as the Guardian and Wards Act (1890) grant magistrates discretionary powers to directly listen to and take into consideration the views of children. Acts pertaining to Hindu personal law also empower magistrates to consider the wishes of a child. Muslim Shariat law is un-coded and hence does not prescribe any particular procedure to be followed to pay special attention to the preferences of a child. However, because the application of the Shariat law is interpretive, there exists the possibility that it can be interpreted in a manner favorable to respecting the views of a child.

Apart from multiple laws governing children, there exist many other problems at the grassroots level. Government-sponsored children’s homes are often unable to accommodate neglected children. Children are sometimes even kept in jail. Thus, there is a problem in the execution of laws pertaining to children and the maintenance of children’s homes due to both a lack of awareness of child rights and India’s burgeoning child population.[6]

Another complication in India is the special status accorded to the state of Jammu and Kashmir. Meant as a temporary provision in 1950, Article 370 of the Indian Constitution allows the State of Jammu and Kashmir unprecedented legal independence with relation to all other regions of India.[7] Thus, acts such as the Juvenile Justice (Care and Protection) Act (2000) do not extend to the Jammu and Kashmir judiciary. Owing to the turbulent history of the region, the legal system in Jammu and Kashmir is not as developed as the rest of the Indian judiciary, and has minimal provisions for the rights to children.

Thus today, India has separate judicial systems for children, and it also differentiates between neglected and delinquent juveniles. At the discretion of the magistrate, children may be heard directly in these systems under Secular and Hindu personal law. There are numerous government schemes and bodies that reaffirm the Government of India’s commitment to child rights. In addition, non-governmental children’s organizations have played a significant role in promoting the rights of children. But a great deal of infrastructure development and grassroots awareness is necessary to ensure that Indian children, numbering more than 312.4 million in 2001,[8] will be provided with a just and fully-functional child judicial system.

Sources of Law (In Order of Authority)

International Law

Convention on the Rights of Child[9]

Article 12

1. States Parties shall assure 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 weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Statutes

Juvenile Justice (Care and Protection) Act, 2000[10]

Article 29: Child Welfare Committee

(1) The State Government may, by notification in Official Gazette, constitute for every district or group of districts, specified in the notification, one or more Child Welfare Committees for exercising the powers and discharging the duties conferred on such Committees in relation to child in need of care and protection under this Act.
 

Article 32: Production before Committee

(1) Any child in need of care and protection may be produced before the Committee by one of the following persons:

i) any police officer or special juvenile police unit or a designated police officer;
ii) any public servant;

iii) childline, a registered voluntary organization or by such other voluntary organization or an agency as may be recognized by the State Government;

iv) any social worker or a public spirited citizen authorized by the State Government; or
v) by the child himself.
 

Article 41: Adoption

(5) No child shall be offered for adoption:

a) until two members of the Committee declare the child legally free for placement in the case of abandoned children,

b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and

c) without his consent in the case of a child who can understand and express his consent.

Guardian and Wards Act, 1890[11]

Article 17: Matters to be considered by the Court in appointing guardian

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

In considering what will be for the welfare of the minor, the Courts shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

If the minor is old enough to form an intelligent preference, the Court may consider that preference.

Hindu Adoptions and Maintenance Act, 1956[12]

Article 9: Persons capable of giving in adoption

…

(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

Hindu Minority and Guardianship Act, 1956[13]

Article 13: Welfare of minor to be paramount consideration

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

Muslim Personal Law (Shariat) Application Act, 1937[14]

Article 2: Application of personal law to Muslims

Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

National Policies and Action Plans

National Charter for Children, 2003[15]

Article 15: Freedom to seek and receive information

(a) Every child shall have the freedom to seek and receive information and ideas.

Article 17: Strengthening family

(a) Every child has a right to a family. In case of separation of children from their families, the State shall ensure that priority is given to re-unifying the child with its parents. In cases where the State perceives adverse impact of such a re-unification, the State shall make alternate arrangements immediately, keeping in mind the best interests and the views of the child.

Article 22: Ensuring child-friendly procedures

All matters and procedures relating to children, viz. judicial, administrative, educational or social, should be child friendly.  All procedures laid down under the juvenile justice system for children in conflict with law and for children in need of special care and protection shall also be child-friendly.

Local Contact Information

Dr. Sesha Kethineni

Professor, Department of Criminal Justice Sciences
Campus Box 5250
Illinois State University
Normal, IL 61790-5250
skethine@ilstu.edu

(309) 438-5566

Additional Resources and Links

National Initiative for Child Protection (NICP): A Government of India Initiative

http://nicp.nisd.gov.in/

Indialaws: A Comprehensive Database of Indian Legislations (Full Text, HTML Format)

http://www.indialaws.info/guest/databasesearch/legislationlist/default.asp?cat=a

 

Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] Vishaka vs. State of Rajasthan (1997), available at http://www.elaw.org/resources/text.asp?ID=1831.

[3] K.M.Chinappa vs. Union of India (2002), available at http://www.elaw.org/resources/text.asp?ID=1433

[4] Soman vs. Geologist (2004), available at http://www.elaw.org/resources/text.asp?ID=2680.

[5] Children Act, No. 60 of 1960, art. 53(2) (1960) available at http://www.indialaws.info/subscriber/databasesearch/legislation/printerformat.asp?result=00337.xml.

[6] “The Status of Children in India,” The Asian Center for Human Rights, January 2004,

http://www.crin.org/docs/resources/treaties/crc.35/India_ACHR_ngo_report.pdf.

[7] India Const., art. 370 available at http://indiacode.nic.in/coiweb/coifiles/part.htm.

[8] The Census of India, 2001, http://www.censusindia.net/.

[9] G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989), available at http://www.ohchr.org/english/law/crc.htm.

[10] Juvenile Justice (Care and Protection of Children) Act, No. 56 of 2000, art. 29, 32, 41 (2000) available at http://www.indialaws.info/subscriber/databasesearch/legislation/printerformat.asp?result=02595.xml and also here, and also as .pdf Document, and also as Word Document.

[11] Guardian and Wards Act, No. 8 of 1890, art. 17 (1938) available at http://www.indialaws.info/subscriber/databasesearch/legislation/printerformat.asp?result=g005.xml and also here, and also as .pdf Document, and also as Word Document.

[12] Hindu Adoptions and Maintenance Act, No. 78 of 1956, art. 9 (1968) available at http://www.indialaws.info/subscriber/databasesearch/legislation/printerformat.asp?result=02815.xml and also here, and also as .pdf Document, and also as Word Document.

[13] Hindu Minority and Guardianship Act, No. 32 of 1956, art. 13 (1956) available at http://www.indialaws.info/subscriber/databasesearch/legislation/printerformat.asp?result=H0001.xml and also here, and also as .pdf Document, and also as Word Document.

[14] Muslim Personal Law (Shariat) Application Act, No. 26 of 1937, art. 2 (1956) available at http://www.indialaws.info/subscriber/databasesearch/legislation/printerformat.asp?result=M0090N.xml and also here, and also as .pdf Document, and also as Word Document.