On January 5, 2002, India signed the South Asian Association for Regional Cooperation (SAARC) Convention on Prevention and Combating Trafficking of Women and Children in Prostitution to promote cooperation amongst Member States. The Convention helps to effectively deal with various aspects of prevention, interdiction and suppression of trafficking in women and children. Under the Convention, repatriation and rehabilitation of victims of trafficking and prevention of the use of women and children in international prostitution networks, (particularly where SAARC member countries are countries of origin, transit and destination), are areas of focus. In 2002, India became a signatory to the SAARC Convention on Regional Arrangements on the Promotion of Child Welfare in South Asia, which recognises survival, protection, development and participatory rights of the child as a vital pre-requisite, and promotes solidarity, cooperation and collective action between SAARC countries in the area of child rights.
India ratified the two OPs of CRC, namely the OP on the Sale of Children, Child Prostitution and Child Pornography, and the OP on the Involvement of Children in Armed Conflict, on September 16, 2005, and December 30, 2005, respectively.
On October 2, 2007, India ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD), and committed itself to the rights of PWDs, including the rights of children with disabilities.
1.4 National Legislation
The legislative framework for children’s rights is being strengthened with the formulation of new laws and amendments in old laws. This includes new legislations such as the Prohibition of Child Marriage Act (PCMA), 2006, the Right of Children to Free and Compulsory Education Act 2009, the Protection of Women from Domestic Violence Act (PWDVA), 2005, and the Commissions for Protection of Child Rights Act (CPCRA), 2005. Amendments have been made to existing legislations such as the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, (JJ (Amendment) Act, 2006) and the Goa Children’s (Amendment) Act, 2005. In addition, there are new legislations on the anvil, such as the proposed Prevention of Offences against the Child Bill, 2009, and the HIV/AIDS Bill, 2006. Both are currently at different stages of discussion. The legislations that already exist for children have been described in India First Periodic Report 2001 (See India First Periodic Report 2001, paras 7-13, pp. 5-6 for details.) The Central Government as well as State Governments undertake several awareness generation activities through print and electronic media to inform and educate people about the provisions under the new and old legislations.
1.4.1 New Legislation
The Commissions for Protection of Child Rights Act, 2005: This Act provides for the setting up of independent Commissions at the national and State levels (See Section 1.1 for details.), to monitor all laws, policies, programmes and administrative mechanisms, from a child rights’ perspective. It also provides for setting up of children’s courts for speedy trial of offences against children, including violation of child rights.20
The Protection of Women from Domestic Violence Act, 2005: The Act provides a more comprehensive definition of domestic violence, which, besides acts of abuse, includes the threat of physical, sexual, verbal, emotional or economic abuse. The Act indirectly provides protection to children, who may also be victims of domestic violence, and also extends its protection to women who are sisters, widows or mothers.21
The Right to Information (RTI) Act, 2005: The RTI Act, 2005, mandates timely response by public authorities to citizens’ requests for information. This Act has brought about a revolution in the flow of information to the common person on various domains of public life, including the use of public resources; and thereby brought about more transparency in governance.22
The Prohibition of Child Marriage Act, 2006: This law has replaced the Child Marriage Restraint Act, 1929. The offences under the Act are both cognizable and non-bailable. Some of the important provisions are: child marriage to be made void at the option of the contracting party, who was a child at the time of the marriage up to two years after obtaining adulthood; provision for maintenance to the female contracting party until her re-marriage; and passing of appropriate custody orders by the District Court for children born out of a child marriage. All these changes have been made keeping the welfare and best interests of the child as the paramount consideration. The PCMA, 2006, has enhanced the punishment for male adults marrying a child and for persons performing, abetting, promoting or attending a child marriage, with imprisonment of up to two years and a fine of up to Rs 0.1 million.23
Under this Act, 10 States have framed their Rules; in other States it is in progress.24 The States of Chhattisgarh and Karnataka have appointed Child Marriage Prohibition Officers in every District.
The Supreme Court has reiterated its earlier judgement of February 14, 2006, on July 23, 2007, that marriages of all citizens of India, irrespective of their religion, have to be compulsorily registered in the States where the marriage was solemnised.25 This is a major step forward to prevent child marriage, as it makes it mandatory to give age at the time of marriage.
The MWCD has developed a handbook on the Act and its implementation. To implement the PCMA, 2006, the Government of India is conducting capacity-building and training programmes for stakeholders in collaboration with UN agencies and Non-Governmental Organisations (NGOs) and is also actively seeking the participation of all stakeholders, including community and religious leaders, for the purpose.
The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006: This Act seeks to recognise and vest forest rights and occupation of forest land with traditional forest dwellers. The provisions of the Act have come into force with effect from December 31, 2007.26 The Rules under the Act have also been notified on January 1, 2008.27
The Unorganised Workers’ Social Security Act, 2008: The Act provides for formulation of welfare schemes for workers of different sections of the unorganised sector on matters related to: (i) life and disability cover; (ii) health and maternity benefits for the workers and their children; (iii) old-age protection, etc.28
The Right of Children to Free and Compulsory Education Act, 2009: The Constitutional (Eighty Sixth) Amendment Act, 2002, inserted Article 21-A in the Constitution, which provides that ‘the State shall provide free and compulsory education to all children of the age of 6-14 years in such manner as the State may, by law, determine’. The resulting legislation has been titled the Right of Children to Free and Compulsory Education Act, 2009.29 Some of the key features of the Act include:
(i) The right of children (6-14 years) to free and compulsory education till the completion of elementary education in a neighbourhood school.
(ii) Specification of duties and responsibilities of Governments, local authorities and parents in providing free and compulsory education.
(iii) Revision in norms and standards relating, inter alia, to Pupil-Teacher Ratio (PTR), buildings and infrastructure, school’s working days, and teachers’ working hours.
(iv) Rational deployment of teachers by ensuring that the specified PTR is maintained for each school, thereby ensuring that there is no urban-rural imbalance in teacher postings.
(v) Appointment of appropriately-trained teachers, i.e. teachers with requisite entry and academic qualifications.
(vi) Prohibition of (a) physical punishment and mental harassment; (b) screening procedures for admission of children; (c) capitation fees; (d) private tuition by teachers; and (e) running of schools without recognition.
(vii) Penalty for charging capitation fee, for resorting to screening during admission and for running a school without recognition.
(viii) Development of curriculum in consonance with the values enshrined in the Constitution.
(ix) Protection and monitoring of the child’s right to free and compulsory education and redressal of grievances by the NCPCR and the SCPCRs.
1.4.2 Amendments in Existing Legislation
The Hindu Succession (Amendment) Act, 2005: The Amendment Act removes gender-discriminatory provisions in the Hindu Succession Act, 1956, and gives equal rights to daughters (See Annexure 1.1 for details of provisions of the Hindu Succession (Amendment) Act, 2005.)
The Goa Children’s (Amendment) Act, 2005: The Goa Children’s Act, 2003, a pioneering attempt to address abuses against children, formulated by the State Government of Goa, was amended in 2005 to deal more stringently with various forms of child abuse and to regulate children’s homes and hospitals. The amended Act has expanded the scope of various abuses under commercial sexual exploitation of children and grave sexual assault through a comprehensive definition of child pornography. The Act also provides for strict punitive action and focuses on care and protection of children through appropriate rehabilitative measures.30
The Criminal Procedure Code (Amendment) Act, 2005 (CrPC (Amendment) Act, 2005): The Act was amended twice during the reporting period, in 2005 and again in 2008. The notable changes include: women judges to hear rape cases as far as practicable; recording of statements of victims at places of their choice; and completion of investigations within three months from the date on which the information was recorded by the officer-in-charge of the police station. (See Annexure 1.2 for details of provisions under the CrPC (Amendment) Act, 2008.)
The Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006: The Juvenile Justice (Care and Protection of Children) Act, 2000, (JJ Act, 2000) was amended in 2006 to ensure better care and protection for children. The Juvenile Justice (Care and Protection of Children) Rules, 2007, (JJ Rules, 2007) were also made by the Government for effective implementation and administration of the Act.
The JJ (Amendment) Act, 2006, states that JJBs and Child Welfare Committees (CWCs) are to be set up by State Governments for all the Districts within a year of this Act coming into force. The amendment prohibits placement of a juvenile in conflict with law in police custody/lock-up. It places the juvenile under the charge of the Special Juvenile Police Unit (SJPU) or a designated police officer immediately, and states that a juvenile in conflict with law has to be produced before a JJB within 24 hours. The Act also protects the privacy of the child/juvenile in conflict with law by prohibiting the publication of names, etc. in any print or visual media. It also provides for speedy disposal of cases through regular review of pending cases every six month by the Chief Judicial Magistrate (CJM)/Chief Metropolitan Magistrate (CMM). Furthermore, it restricts the stay of a child/juvenile in conflict with law in a special home to three years and directs that the State Governments shall constitute child protection units in every District of the State.
The JJ (Amendment) Act, 2006, also includes child beggars and working children in the category of children in need of care and protection, thereby expanding the scope of the Act. The Act states that all institutions, whether run by State Governments or by voluntary organisations for children in need of care and protection, are to be registered within six months of the Act being passed. The Act has made the adoption process simpler and allows for adoption of children from juvenile homes.31
The Child Labour (Prohibition and Regulation) Act, 1986: The Government issued two notifications (on July 10, 2006, and September 25, 2008) during the reporting period, expanding the list of banned and hazardous processes and occupations in Schedule II of the Child Labour (Prohibition and Regulation) Act, 1986. Among the additions are domestic work, work in hotels, dhabas, spas and recreation centres, diving, processes involving exposure to excessive heat and cold, such as mechanised fishing, food processing, beverage industry, timber handling and loading, mechanical lumbering and warehousing, etc.32 The number of occupations listed in Part A is 16 and the number of processes listed in Part B is 65. (See Annexure 8C.1.2 for list of occupations and processes banned under the Child Labour (Prohibition and Regulation) Act, 1986.)
In response to the UN Committee’s recommendation to withdraw the declaration made to Article 32 of the Convention, the Government considering the socio-economic conditions in the country has adopted a multi-pronged strategy for elimination of child labour, which emphasises on: (a) legislative measures; (b) general development programmes for the benefit of the families of child labour and; (c) project-based action in the area of high concentration of child labour. In addition, the ILO, in its resolution of 1979, also called for combination of efforts for prohibition of child labour with measures for harmonising child labour wherever the same cannot be outright eliminated. Keeping in view all these factors, but at the same time to give effect to UN recommendations, amendments are being made in labour laws, which is a continuous process.33
The Maternity Benefit (Amendment) Act, 2008: The amended Act provides for more time to mothers for the care and protection of infants by regulating maternity benefits available to women in factories, mines, circuses, plantations and shops or establishments employing 10 or more persons. Consequent upon the acceptance of the recommendations of the Sixth Pay Commission, as a measure of India’s commitment under CRC, the Central Government has issued an order allowing childcare leave to employees.
The Information and Technology (Amendment) Act, 2008: The amended Act addresses exploitation of children through the internet. Section 67 (b) provides for punishment for publishing or transmitting material depicting children in sexually explicit acts, etc. in electronic form.34 The amended Act provides for punishment to whoever:
(i) Publishes or transmits or causes to be published or transmitted material in any electronic form, which depicts children engaged in a sexually-explicit act or conduct.
(ii) Creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in an obscene or indecent or sexually-explicit manner.
(iii) Cultivates, entices or induces children to online relationship with one or more children for, and on, a sexually-explicit act or in a manner that may offend a reasonable adult on the computer resource.
(iv) Facilitates abusing children online.
(v) Records in any electronic form own abuse or that of others pertaining to sexually explicit act with children.
1.4.3 Proposed Amendments in Existing Legislations
Amendment to the Immoral Traffic (Prevention) Act (ITPA), 1956: The ITPA, 1956, criminalises procuring, inducing and detaining for purpose of prostitution but it does not define ‘trafficking’ per se in human beings. The Government has been considering making amendments to this Act to widen its scope, to focus on traffickers, to prevent re-victimisation of victims and to ensure its effective implementation.
A major amendment proposed includes insertion of a new section defining comprehensively the ‘Trafficking in Persons’ on the lines of definition of trafficking contained in the OP to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, to UN Convention on Trans-National Organized Crime.
Amendment to the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (PCPNDT) Act, 1994: The existing PCPNDT Act, 1994, pre-empts the use of technologies, which significantly contribute to the declining child-sex ratio and to curb their misuse for detection and disclosure of sex of the foetus, lest it should lead to sex-selective abortion. Amendments have been proposed to make the implementation of the Act more effective and stringent by strengthening the appropriate authorities.35
Amendment to the Registration of Births and Deaths (RBD) Act, 1969: The Government has proposed amendments to certain Sections of the RBD Act, 1969, in order to increase the accountability, simplify the procedure of registration of births and deaths, and make the Act citizen-friendly. The proposed amendments, inter alia, include enabling provisions for registration of births of ‘street children’, as well as ‘adopted children’.36
Amendment to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: The proposed amendments pertain to the definition of a number of disabilities (viz. mental illness, cerebral palsy, low vision, mental retardation and other impairments) and revised provisions regarding the institutions responsible for implementation. Furthermore, the amendments also propose more specific obligations of the States and local authorities (such as developing strategies and schemes for inclusive education) and stronger provisions for regular data collection on socio-economic status of PWDs. The Government has initiated steps for amending the Act to harmonise it with UNCRPD.
Amendment to the Land Acquisition Act, 1894: The proposed amendment seeks to modify provisions of the existing Land Acquisition Act, 1894, with a view to strike a balance between the need for land for development and other purposes, and protecting the interests of families, including children, displaced or adversely affected on account of in-project acquisition of their land.
1.4.4 Proposed Legislations
The Prevention of Offences against the Child Bill, 2009: The MWCD felt the need for a dialogue on various kinds of offences against children and a comprehensive legislation to address these more effectively. After wide consultations with voluntary organisations, experts and UN agencies, Prevention of Offences against the Child Bill, 2009, was prepared and is being reviewed by MWCD. The MWCD is also in the process of formulating a comprehensive legislation to address the issue of sexual offences against children.
The HIV/AIDS Bill, 2006: The proposed Bill seeks improved access to HIV/AIDS services and facilities for testing, and deals with issues such as human rights, special provisions for women, children and young persons, disclosure of information, social security, procedure in court and implementation.37 It also recognises the right of children and young persons to access healthcare services and information in their own right. This is particularly important for street children and those living on their own. This Bill has been drafted through extensive research and nationwide consultations with stakeholders.
The National Rehabilitation and Resettlement Bill, 2007: This Bill aims at giving a legal basis to the provisions of the National Rehabilitation and Resettlement Policy, 2007, by articulating the basic premise that all projects leading to involuntary displacement must address the grievances of affected persons, and that administrative mechanisms must be established at the Central and State levels for the effective rehabilitation and resettlement of the displaced population.
The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005: This Bill contains measures for prevention of acts leading to communal violence, and protects children who are victims of communal situations, both directly and indirectly.
The Government of India is implementing a number of programmes, which focus on social inclusion, gender sensitivity, child participation and protection. This approach is based on the principles of the CRC and MDGs, and is reflected in the NPAC, 2005, the 11th Five Year Plan and all national flagship programmes.
1.5.1 Programmes Implemented by MWCD
Integrated Child Development Services: The ICDS has been a major initiative of the MWCD for achieving child-nutrition-related MDGs. In 2008, the Government of India approved the third expansion phase of the ICDS, with special focus on habitations/settlements predominantly covered by Scheduled Castes (SCs)/Scheduled Tribes (STs) and minority population. As of March 31, 2009, the Scheme has reached 86 million supplementary nutrition beneficiaries and 33 million pre-school education beneficiaries. (See Section 6C.3.2 for details.)
Kishori Shakti Yojana and Nutrition Programme for Adolescent Girls (NPAG): These two Schemes are being implemented on a pilot basis for the development of adolescent girls, using the ICDS infrastructure. The KSY promotes self-development, nutrition and health status, literacy and numerical and vocational skills among girls in the 11-18 age group. The NPAG addresses the problem of under-nutrition among adolescent girls. The MWCD has decided to merge the two schemes into a unified National Programme ‘Rajiv Gandhi Scheme for Empowerment of Adolescent Girls’, with content enrichment and universal coverage. (See Section6C.3.2 for details.)
Rajiv Gandhi National Crèche Scheme for Children of Working Mothers: The Scheme, launched in 2006 by the MWCD, provides day-care crèche services to the children in the 0-6 age group and includes provisions for supplementary nutrition, emergency medicines and contingencies. The Scheme has an in-built component for monitoring of crèches. A component of the crèche workers’ training has been added to orient the crèche workers to provide better services and to create a child-friendly environment in the crèche centres. At present, 31,718 crèches have been sanctioned under the scheme. (See Section 5B.3 for details.)
Scheme of Assistance to Home for Children (Shishu Greh) to Promote In-country Adoption: The Scheme provides support for institutional care within the country for care and protection of infants and children up to six years of age, who have either been abandoned, or orphaned or have been rendered destitute. Nearly 6,000 children have been placed in adoption through Shishu Grehs in 18 States (Andhra Pradesh, Arunachal Pradesh, Assam, Bihar, Delhi, Gujarat, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Mizoram, Orissa, Rajasthan, Tripura and West Bengal.). This Scheme has now been merged with the recently-launched Integrated Child Protection Scheme (ICPS).
Dhanalakshmi – A Conditional Cash Transfer Scheme: A new pilot Scheme ‘Dhanalakshmi – Conditional Cash Transfer (CCT) for Girl Child with Insurance Cover’ was launched on March 3, 2008, by the MWCD in 11 blocks across seven States of Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Orissa, Uttar Pradesh and Punjab. The Scheme proposes to provide cash transfers to the family of the girl child (preferably the mother) on fulfilling certain specific conditions for the girl child: at the time of birth and registration of birth; during immunisation; on enrolment and retention in school; and at the age of 18 years, for unmarried girls. In addition, insurance cover of Rs 0.1 million would be done for the girl child born on, or after, the cut-off date suggested in the Scheme.
The direct and tangible objective of the Scheme is to provide a set of staggered financial incentives for families to encourage them to retain the girl child and educate her. The more subtle and intangible objective is to change the attitudinal mindset of the family towards the girl, by linking cash transfers to her well-being. This will force the families to look upon the girl as an asset rather than a liability, since her very existence has led to cash inflow to the family.
Programme for Juvenile Justice: The Programme provides for the establishment and maintenance of institutions for the rehabilitation of juveniles in conflict with law and children in need of care and protection. At present, there are 794 homes established under the JJ Act, 2000, catering to 46,957 children. This Programme has been merged with the recently-launched ICPS. (See Section 8B.4.3 for details.)
Integrated Programme for Street Children: The objective of this Programme is to prevent destitution of children and facilitate their withdrawal from life on the streets. Financial assistance (90%) is provided to the eligible NGOs working for the welfare of street children and providing services such as shelter, formal and non-formal education, vocational training, nutrition, healthcare, sanitation and hygiene, safe drinking water, recreational facilities, and protection against abuse and exploitation. Since its inception, 321,854 street children have been extended help through 83 organisations in 21 States/UTs. This Programme has now been merged with the recently-launched ICPS. (See Section 8E.3 for details.)
Scheme for Welfare of Working Children in Need of Care and Protection: Launched in 2005-2006, the Scheme lends support to projects in urban areas not being covered by the existing schemes of the Ministry of Labour and Employment (MoL&E). The Scheme provides support for the wholesome development of child workers and potential child workers, especially those with none or ineffective family support, such as children of pavement dwellers/drug addicts, children living in slums/on railway platforms/along railway lines, children working in shops, dhabas, etc. (See Section 8C.1.3 for details.)
Ujjawala – A Comprehensive Scheme for Prevention of Trafficking, and Rescue, Rehabilitation, Re-integration and Repatriation of Victims of Trafficking and Commercial Sexual Exploitation: The Scheme, launched in December 2007, primarily focuses on preventing trafficking through social mobilisation and community involvement on the one hand and rescue and rehabilitation of its victims on the other. (See Section 8C.5.5 for details.)
Childline: The Childline service, being run by the Government through CIF, is a 24 hour, toll-free phone no. 1098 with outreach service linking children in need of care and protection to organisations run by Government departments, as well as to those run by civil society agencies. Currently, the service operates in 83 cities/ towns across the country, with 190 collaborative, support and nodal partners, and services over two million calls a year. Under the ICPS, Childline services are to be extended to the entire country in a phased manner. Childline is dependent on a set of structures and services that are provided by the system to be able to rehabilitate the child. The Government is continuously strengthening these structures to ensure child protection such as CWCs, JJBs, SJPUs, State Child Protection Society, and District Child Protection Society. Inter-departmental coordination and convergence at the field level is also being strengthened to ensure that children can be rescued and rehabilitated in time and that prosecution is initiated against perpetrators of crimes against children. Improved access and quality of services is an important element under the recently-launched ICPS and will be taken up during the 11th Five Year Plan. The Childline ensures proper documentation of all children rescued to facilitate their rehabilitation and restoration where necessary and also provides data related to children rescued and rehabilitated, for compilation of a national comprehensive database on child protection.
Integrated Child Protection Scheme: The Ministry formulated ICPS, a Centrally Sponsored Scheme (CSS), with a view to provide a safe and secure environment for the overall development of children, who are in need of care and protection, as well as children in conflict with law, including children in difficult circumstances.
The objectives of the Scheme are to contribute to the improvement in the well-being of children in difficult circumstances, as well as to the reduction in vulnerabilities to situations and actions that lead to abuse, neglect, exploitation, abandonment and separation of children. These will be achieved by:
(i) Improved access to and quality of child protection services.
(ii) Raised public awareness about the reality of child rights, situation and protection in India.
(iii) Clearly-articulated responsibilities and enforced accountability for child protection.
(iv) Established and functioning structures at all Government levels for delivery of statutory and support services to children in difficult circumstances.
(v) Introduction of operational, evidence-based monitoring and evaluation.
The services financed under the ICPS for strengthening/introduction are emergency outreach services through Childline, transitional/open shelters for children in need in urban and semi-urban areas, cradle baby reception centres, family-based non-institutional care through sponsorship, foster care, adoption and after care. In addition, institutional services such as shelter homes, children’s homes, observation homes, special homes, and specialised services for children with special needs are also provided under the Scheme. Besides, general grants-in-aid for need-based/ innovative interventions are also being given; a child-tracking system, including a website for missing children, is being created; and interventions are being planned for advocacy, public education and communication and training of all child protection personnel.
The service delivery structures for the above services will be available at the Central, State and District levels. These are in the form of Central Project Support Unit, Childline India Foundation (CIF), CARA and NIPCCD at the Central level; State Project Support Unit, State Child Protection Society, and State Adoption Resource Agency at State level; and District Child Protection Society and Specialised Adoption Agencies at District level.