CHILDREN IN DISTRESS – REMEDIES IN INDIAN LAW

Today’s children constitute tomorrow’s future. Sad, but true, we are not protecting our children. Our future is in jeopardy. Abuse of child inmates of protection homes have recently shocked the conscience of the nation. Physical, mental and sexual harassment was rampant in these private institutions. Offences of molestation, rape, wrongful confinement, criminal intimidation and immoral trafficking have been reportedly registered against these protection houses where the care givers turned into predators. A plethora of laws exist to protect child rights. The Indian Protection of Children from Sexual Offences Bill, 2011 is also on its way to become a deterrent law. However, enacting laws is not the solution. Sensitization of child rights, appointing Ombudsmen to protect children and above all providing special care to their privileges is the clarion call of the day. Lethargy, indifference, tardiness and insensitivity to protection of children must end. Callous treatment of children should be penalised by social ostracization of child offenders as law alone is not the remedy

A WHOLESOME LAW – CPCRA

India participated in the United Nations (UN) General Assembly Summit in 1990, which adopted a Declaration on Survival, Protection and Development of Children and acceded to the Convention on the Rights of the Child (CRC) on the 11th December, 1992. CRC is an international treaty that makes it incumbent upon the signatory States to take all necessary steps to protect children's rights enumerated in the Convention. In order to ensure protection of rights of children, one of the recent initiatives that the Government have taken for Children is, the adoption of National Charter for Children, 2003. The UN General Assembly Special Session on Children held in May, 2002 adopted an Outcome Document titled "A World Fit for Children" containing the goals, objectives, strategies and activities to be undertaken by the member countries for the current decade. Hence, in the wisdom of the Indian Parliament, it was thought expedient to enact a law relating to children to give effect to the policies adopted by the Government in this regard, standards prescribed in the CRC, and all other relevant international instruments. Hence, after the UN Convention on the Rights of the Child was signed by India, the Commission for Protection of Child Rights Act, 2005 (CPCRA) was enacted by Parliament to provide teeth and implement the UN Convention. CPCRA is an Act to provide for the constitution of a National Commission and State Commissions for Protection of Child Rights and Children's Courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto.

Suggested Measures under CPCRA:

Ø  In the light of the above provisions of the CPCRA, it is incumbent on the Governments of all the States and the Union Territories (UT’s) in India to take all necessary steps to protect children’s rights enumerated in the Convention on the Rights of the Child (CRC). Sections 13 and 24 of the CPCRA provides ample powers both to the National Commission and the State Commissions for inter alia taking necessary steps and recommending appropriate remedial measures with regard to issues pertaining to all children in distress. These can be enforced in all the States and the UT’s throughout India by setting up and/or constituting State Commissions for Protection of Child Rights under Section 17 of the CPCRA in the respective territories of the individual Governments. Hence, as a starting point, the States and the UT’s in India should forthwith set up the said State Commissions so that the entire machinery can be galvanized under its regime.

Ø  It is suggested that any averment or contention by either of the State or UT Governments of not to set up State Commissions for Protection of Child Rights in their territories should not be entertained and accepted due to the sensitivity and magnitude of the problems relating to children in difficulty. This is supported by the following contentions. Hence, all the States and the UT’s in India need to set up the said State Commissions on priority.

Ø  To complete the setting up of a fully operational system under the CPCRA, Children’s Courts can be constituted in the said respective territories in India under Section 25 of the CPCRA and Special Public Prosecutors can be appointed in these territories under Section 26 of the CPCRA. Thus, independent of the other statutory enactments dealing with criminal laws or other penal provisions in general, CPCRA can be very effectively utilized for individually setting up a statutory system for enforcement of child rights specifically and particularly in the larger interest of children only. This will create a special, exclusive and individual forum for in camera proceedings for redressal of Children’s Rights and will provide effective, speedy and timely relief in the case of any individual incident of missing/distressed children.

Ø  The issues pertaining to missing children and/or children in distress can be exclusively looked into by the respective State Commissions in their individual territories within India in view of the powers vested in them under Sections 13 and 24 of the CPCRA. Clearly, if the State Commission concerned suo moto or upon inquiry into complaints regarding missing children or children in distress comes to a conclusion that there is a violation of Child Rights, there is non implementation of laws relating to children or there is non-compliance of decisions/guidelines/instructions pertaining to welfare of children, such Commission under Section 15 of the CPCRA, can approach the Supreme Court/ High Court concerned  for issuance of directions, Orders or Writs as may be deemed necessary by the Court, besides recommending concerned Governments for grant of interim relief as deemed necessary. Thus, any individual case of missing children/children in distress can be immediately remedied by the concerned State Commission in India by enforcing the above provisions of the CPCRA.

Ø  The composition of the State Commission with its six members, out of which at least two should be women specializing in child health, care, welfare or child development, Juvenile Justice, child psychology, laws related to children and/or having knowledge of children in distress will give adequate opportunity to the State Commission to receive complaints or act suo moto whenever there is any issue of kidnapping or removal of children and deprivation/violation of child rights. The Commission is vastly empowered to examine all factors affecting children and relating to trafficking, torture, exploitation, pornography and prostitution and recommend appropriate remedial measures. The Commission has mandatory powers to forward cases to any Magistrate and hear them as complaints. Independently, the Commission upon inquiry can recommend initiation of proceedings for prosecution or such other action as deemed fit. Hence, all cases of trafficking of children particularly for exploitation, begging, prostitution and pornography can be monitored and future recurrence can be checked. All organized Child Mafias can therefore be attempted to be eliminated.

Ø  That as an overall additional suggestion for effective preventive measures for the future, every State and Union Territory in India must forthwith set up the statutory District Child Welfare Committees, besides State and District Inspection Committees, as required under Sections 29 and 35 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Under Rule 91 of The Juvenile Justice (Care and Protection of Children) Rules, 2007, every State and Union Territory in India must constitute a Selection Committee, to be headed by a Retired Judge of the High Court as its Chairperson to make selections of District Child Welfare Committees, besides making selections of State and District Inspection Committees. Also, as prescribed under Section 62 of the Juvenile Justice (Care and Protection of Children) Act, 2000, every State and Union Territory in India must constitute a State Advisory Board by appointing independent professionals, in terms of Section 62 of the above Act, on the matters relating to the establishment and maintenance of homes, mobilization of resources, provision of facilities for education, training and rehabilitation of children in need of care and protection. Nominating these committees with ex-officio government officials as full time members who have no inclination, time, energy or interest in child related matters is fatal.

Conclusion of suggested measures under CPCRA:

A conjoint reading of the provisions, remedies and suggestions made above under the CPCRA indicates that an altogether separate and independent machinery can be set into motion under the auspices of the CPCRA to specifically look into all issues related to Child Rights while the process of Criminal Law moves in the mainstream.

The menace of child abuse can be curbed with a heavy hand only if the issues relating to children are segregated and dealt with under separate parameters under the watchful eye of Child specialists i.e. qualified members of the State Commissions for Protection of Child Rights, besides Child Welfare or Inspection Committees and Boards. Only if qualified, trained and experienced persons sensitive to Child Rights are empowered to handle the problems of children, can the process and machinery of Criminal Law work in tandem.

Once Child offenders are apprehended, speedy trials of offences against children or of violation of Child Rights can be ensured in Children’s Courts which can be set up under the CPCRA. This can prevent recurrence of organized children related offences.  

A vigilant State Commission for Protection of Child Rights both as a watch dog and as an investigator can serve a very significant role in the removal of problems of children in difficulty. Hence, only if the issue of children in trouble is taken out from the general stream of treatment and handed over to Child Specialists to start with and monitor/overlook it from the outside, can the necessary attention, time and energy be devoted to this highly sensitive issue of problems of children.

CONCLUDING THOUGHTS

Children go missing, are abused or are maltreated in silence. It may be suggested that not only the police or the investigating authorities should be solely responsible for identifying the children in distress, whose cases have been reported in the police stations, rather even the public bodies, NGO’s, State Legal Services Authorities within their territories in India should be made a part of the support services as that would help and speed up the investigation process making it possible for the children in distress to be helped. If all the authorities at all levels i.e. Village, District, State and Centre in their respective jurisdictions, including the public bodies work together to identify the children in distress, it will not be very difficult to solve their problems. Therefore, keeping in mind the above guidelines and suggestions it is stated that it is very much possible to efficiently investigate and locate children in difficulty besides preventing future instances of abuse and kidnapping of children. Considering that India is a large nation geographically spread over an area of 3.28 million square kilometres, with vast territories housing a multi-cultural society and a huge population of over 1.1 billion people spread over 28 States and 7 Union Territories, resolving critical issues of children in distress is not an easy task. However, keeping in view that this vulnerable section of society is at a very high risk rate, every effort, step and endeavour should be made to adapt means and methods to protect the future of the nation constituted of its precious children. Therefore, it should be the endeavour of every official body of the system in India to contribute and do whatever best is possible to be done for the plight of the children in distress who must be helped. Resolving their problems should be the top most priority in all walks of life. We have to work seriously to save our children and if we do not, no one else will do it.