Abstract
India ratified the UN Convention on the Rights of the Child (CRC) in 1992 thereby expressing its commitment to protect the human rights of all its citizens, including children. As a result, in the past 20 years the CRC has come to exert a growing influence on a range of legislative, judicial and executive decisions. This chapter attempts to highlight how the ratification of the CRC is reflected in the drafting of legislation in the country and examples of some of the cases in which the courts at different levels in India—High Courts in the States and Supreme Court—have alluded to or cited the CRC in its pronouncements.
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Notes
- 1.
Article 253: ‘Legislation for giving effect to international agreements. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body’.
- 2.
Jolly Jeorge versus Bank of Cochin, AIR 1980 SC 470 (Date of Judgment: 04.02.1980).
- 3.
(1987) 3 SCC 50 (Date of Judgment: 20.12.1986).
- 4.
Vishaka and others v. State of Rajasthan and others. (AIR 1997 Supreme Court 3011). J.S. Verma C.J.I., Mrs. Sujata versus Manohar and B.N. Kirpal. JJ. (Date of judgment: 13 August 1997).
- 5.
Gita Hariharan and Vandana Shiva; Vishakha.
- 6.
AIR 2004 SC 3566/2004 (2) ALD Cri 504 (Date of Judgment: 26.05.2004).
- 7.
http://www.silf.org.in/16/Indian-Judicial-System.htm. Accessed 2 December 2013.
- 8.
Article 15 of the Constitution of India.
- 9.
The Juvenile (Justice Care and Protection of Children) Act 2000.
- 10.
(1996) 6 SCC 756 (Date of Judgment: 10.12.1996).
- 11.
‘While fully subscribing to the objectives and purposes of the Convention, realising that certain of the rights of the child, namely those pertaining to the economic, social and cultural rights can only be progressively implemented in the developing countries, subject to the extent of available resources and within the framework of international co-operation; recognizing that the child has to be protected from exploitation of all forms including economic exploitation; nothing that for several reasons children of different ages do work in India; having prescribed minimum age for employment in hazardous occupations and in certain other areas; having made regulatory provisions regarding hours and conditions of employment; and being aware that it is not practical immediately to prescribe minimum age for admission to each and every area of employment in India-the Government of India undertook to take measures to progressively implement the provisions of Article 32, particularly paragraph 2(a), in accordance with its national legislation and relevant international instruments to which it is a State Party’.
- 12.
MC Mehta versus State of Tamil Nadu (1996) 6 SCC 756 (Date of Judgment: 10.12.1996).
- 13.
A writ of Mandamus is a tool of judicial review by which the Supreme Court or High Courts can order the state to perform any specific public duty mandated under any law. It includes the power to issue an order to prohibit the state from doing anything which violates the fundamental or legal rights of persons.
- 14.
Bandhua Mukti Morcha versus Union of India & Ors. 1997 (10) SCC 549 (Date of Judgment: 21.02.1997).
- 15.
This is a Protocol supplementing the United Nations Convention against Transnational Organized Crime.
- 16.
Bachpan Bachao Andolan versus Union of India and Others. 2011 (5) SCC 1 (Date of Order: 18.04.2011).
- 17.
The JJB is the competent authority responsible for adjudicating and disposing cases involving children in conflict with the law. It is a bench of three persons, headed by a Judicial Magistrate of First Class and two Social Worker Members. See, too, the introduction to this chapter.
- 18.
The CWC is the competent authority responsible for care, protection and rehabilitation of children in difficult circumstances. It is a bench of five persons.
- 19.
(1987) 3 SCC 50 (Date of Judgment: 20.12.1986).
- 20.
Ibid. ‘[R]ectified’ is most likely a printing error and should be read as ‘ratified’.
- 21.
Gaurav Jain versus Union of India & Ors. [1990 Supp. SCC 709] (Date of Judgment: 09.07.1997).
- 22.
Criminal Appeal No. 927 of 2002, Delhi High Court (Date of Judgment: 06.12.2006).
- 23.
It also referred to the rights of children contained in the following:
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Geneva Convention on the Rights of the Child, 1924;
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Declaration of the Rights of the Child adopted by the UN General Assembly on 20 November 1959 and recognised in the Universal Declaration of Human Rights;
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International Covenant on Civil and Political Rights (in particular articles 23 and 24);
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International Covenant on Economic, Social and Cultural Rights (in particular article 10); and
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statutes and relevant instruments of specialised agencies and international organisations concerned with children’s welfare.
-
- 24.
R.D. Upadhyay versus State of Andhra Pradesh & Others, Writ petition (Civil) 559 of 2004.
- 25.
Criminal Appeal No. 907 of 2009 reported as 2009 (6) SCALE 695 (Date of Judgment: 05.05.2009).
- 26.
(2013) 7 SCC 705 (Date of Judgment: 17.07.2013).
- 27.
Committee On the Rights Of the Child Forty-Fourth Session, Geneva, 15 January–2 February 2007. General Comment No. 10 (2007). Children’s Rights in Juvenile Justice. CRC/C/GC/10. 25 April 2007.
- 28.
Para. 38 of General Comment No. 10 (25.04.2007) reads: ‘The Committee … recommends that those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years. The Committee notes with appreciation that some States parties allow for the application of the rules and regulations of juvenile justice to persons aged 18 and older, usually till the age of 21, either as a general rule or by way of exception.’
- 29.
Writ Petition No. 4511 of 2003, Kerala High Court (Date of Judgment: 18.03.2003).
- 30.
Criminal Appeal No. 653 and 656 of 2008, Supreme Court of India.
- 31.
State versus Rahul, Criminal L.P. 250 of 2012, Delhi High Court (Date of Judgment: 15.04.2013).
- 32.
Smt. Sudesh Jhaku versus K.C.J. And Others, 62 (1996) DLT 563 (Date of Judgment: 23.05.1996).
- 33.
Writ Petition (Criminal) No. 33 of 1997, Supreme Court of India.
- 34.
Sakshi versus Union of India (AIR 2004 SC 3566, 2004 (2) ALD Cri 504) (Date of Judgment: 26.05.2004).
- 35.
Law Commission of India. One Hundred And Seventy Second Report On Review Of Rape Laws March 2000.
- 36.
AIR 2007 SC 493 (Date of Judgment: 12.12.2006).
- 37.
- 38.
Anant Kumar Asthana versus Union of India & Others, Writ Petition (Civil) 787 of 2012, Delhi High Court.
- 39.
Mathew Varghese versus Rosamma Varghese (2003, 131 TAXMAN 646 Ker) (Date of Judgment: 09.07.2003).
- 40.
Israt Jahan Tabassum versus Union of India and Ors (W.P. (CRL) 3062/2006 and Crl. M.As. 14690/2006, 924/2008).
- 41.
Stephanie Joan Becker versus State & Others, Civil Appeal No. 1053 of 2013, Supreme Court of India (Date of Judgment: 08.02.2013).
- 42.
Ramdeo Chauhan & Rajnath Chauhan versus Bani Kant Das & Others. Decided by Supreme Court of India on 19 November 2010 in Review Petition (Civil) NO.1378 of 2009.
- 43.
No. 5897/24/98–99.
- 44.
No. 497/13/97–98.
Reference
Agarwal, S. K. (2010). Implementation of international law in India: Role of judiciary. Hans & Tamar Oppenheimer Chair in Public International Law. http://oppenheimer.mcgill.ca/IMG/pdf/SK_Agarwal.pdf. Accessed 5 September 2013.
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Thukral, E.G., Asthana, A.K. (2015). India. In: Liefaard, T., Doek, J. (eds) Litigating the Rights of the Child. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9445-9_3
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