INDIA: National Laws

Summary: General overview of India's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
Ratified international treaties including the CRC do not automatically have the force of law in India; rather, they must be given effect through separate national legislation. The CRC has not been directly incorporated into Indian law and hence does not prevail over conflicting domestic legislation.  While the Convention cannot be directly enforced in the justice system, national courts do refer to the CRC as a source of guidance when interpreting national laws.

Constitution: The Indian Constitution contains extensive rights provisions, including a large number that apply regardless of age and some that address the rights of children specifically. Constitutional rights are divided into justiciable “Fundamental Rights” and non-justiciable “Directive Principles”. Those provisions that specifically address children's rights are:

Fundamental Rights:

• Article 21A requires the State to provide free and compulsory education to all children of age six to fourteen years in such manner as the State may determine by law

• Article 24 prohibits the employment of children under the age of fourteen years in any factory, mine or other form of hazardous employment

Directive Principles:

• Article 39(e) requires that the State direct policy towards ensuring that “the tender age of children” is not abused, and “that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”

• Article 39(f) requires the State to direct policy towards giving children opportunities to “develop in a a healthy manner and in conditions of freedom and dignity that childhood and youth are protected against exploitation and against moral and material abandonment”

• Article 45 requires the State to provide care and education to children below the age of six years

• Article 51A creates a duty for parents and guardians to provide opportunities for education for their children between the ages of six and fourteen years

• Article 350A requires States and local authorities to provide instruction in a child's mother tongue in primary education where a child is a member of a linguistic minority group

Legislation: Indian law contains a small number of codes and a large number of legislative acts that can apply federally or to individual states. Legislation of particular relevance to children's rights includes, but is by no means limited to:

• Penal Code

• Juvenile Justice (Care and Protection of Children) Act 2000 (amended 2006)

• Family Courts Act 1984

• Child Labour (Prohibition and regulation) Act 1986

• Immoral Traffic Prevention Act 1986

• Right of Children to Free and Compulsory Education Act 2009

• Prohibition of Child Marriage Act 2006

• Hindu Adoption and Maintenance Act 1956

• Orphanage and Other Charitable Homes (Supervision and Control) Act 1960

• Guardian and Wards Act 1890

• Commission for the Protection of Child Rights Act 2005 (amended 2006)

Legal Research
The website of the Government of India maintains an up to date online version of the Indian Constitution in English and Hindi (http://indiacode.nic.in/coiweb/welcome.html), and the Indian Parliament also maintains an official website (http://parliamentofindia.nic.in/). A database of legislation is available through the Supreme Court Judge's Library (http://supnet.nic.in/legis/mainpage.html). The GlobaLex initiative at New York University has published a guide to legal research in India (http://www.nyulawglobal.org/Globalex/India_Legal_Research1.htm), and the World Law Guide website contains a selection of Indian legislation in English (http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweind.htm). In addition, the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/india.php), the Legal Information Institute of India (http://www.liiofindia.org/) and World Legal Information Institute (http://www.worldlii.org/in/) both provide a selection of relevant government and legal research links. 

Case law
CRC Jurisprudence
In 1996, the Supreme Court of India addressed the worst forms of child labour in M.C. Mehta v. State of Tamil Nadu. In 2004, the Supreme Court ruled on Sakshi v. India, a case concerning the criminalisation of sexual assault against women and girls.

Case law research
The Supreme Court of India maintains an official website (http://www.supremecourtofindia.nic.in/), and the SUPLIS database compiles its jurisprudence (http://supnet.nic.in/suplis/main.html). Both the Legal Information Institute of India (http://www.liiofindia.org/) and World Legal Information Institute (http://www.worldlii.org/catalog/2179.html) provide further links to case law from a range of Indian jurisdictions.

Compliance with the CRC
The Committee on the Rights of the Child has welcomed a number of reforms that have brought Indian law into greater conformity with the CRC, particularly in relation to the active role of the courts. The committee has, however, expressed concerns that “domestic legislation, and in particular religious and personal laws which govern family matters, are not yet fully in conformity with the provisions and principles of the Convention”.

In depth analysis:
According to the Committee on the Rights of the Child, the law and the administration of the law relating to violence, abuse and neglect is incompatible with the Convention in a number of respects. The Committee has noted both the high prevalence of violence and sexual abuse of children and the inadequacy of domestic law in the area, and its recommendations have focussed on widespread legal reforms to bring all relevant legislation up-to-date with regards to such ill-treatment within the family, in schools and in institutions. The Committee has also expressed its utmost concern at reports of ill-treatment, torture and sexual abuse of children in detention facilities, and at allegations of killings of children by law enforcement officials. Corporal punishment also remains legal in all states with the exception of New Delhi.

The Juvenile Justice (Care and Protection of Children) Act brought in a number of reforms in the area of juvenile justice, but the Committee has nevertheless expressed concern at a number of aspects of national law in the area. The minimum age of criminal responsibility remains very low at 7 years, while deprivation of liberty is not used as a measure of last resort and children are not guaranteed Convention compatible protections where they are accused of offences under the Prevention of Terrorism Act 2002. The Committee has made recommendations that include reforming this legislation and extending the coverage of relevant Acts to the states of Jammu and Kashmir.

While welcoming India's generous policy in hosting refugees, the Committee has expressed concern that there is an absence of legislation in the area and, in certain circumstances, Pakistani refugees and Mohajir children residing in India are stateless. The Committee has recommended that the State enact comprehensive legislation in the area of refugee and asylum law, including in the areas of physical safety, health, education, social welfare and with respect to family reunification.

Current legal reform projects
Please contact CRIN if you are aware of any current legal reform projects.