Rights of the child: the CRC, UNICEF and Indian law
Human Rights Law and Practice · Unit V · Topic 16 of 18 · 7 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Before the Convention
- Geneva Declaration of the Rights of the Child, 1924, adopted by the League of Nations: the child must be given the means for normal development, fed, nursed, sheltered and protected from exploitation.
- UDHR Article 25(2): motherhood and childhood are entitled to special care and assistance; all children, whether born in or out of wedlock, enjoy the same social protection.
- UN Declaration of the Rights of the Child, 1959: ten principles, with the “best interests of the child” as the paramount consideration.
- ICCPR Article 24 and ICESCR Article 10(3): special measures of protection for children; protection from economic and social exploitation.
- 1979 was the International Year of the Child, when Poland proposed a binding convention.
2. The Convention on the Rights of the Child, 1989
Adopted by the General Assembly on 20 November 1989, in force on 2 September 1990. It is the most widely ratified human rights treaty; every UN member except the United States is a party. India acceded on 11 December 1992. Article 1: a child is every human being below the age of eighteen years unless majority is attained earlier under the applicable law.
3. The four general principles
The Committee on the Rights of the Child treats four Articles as principles that govern the reading of all the others.
- Non-discrimination (Art. 2): rights for every child without discrimination of any kind, irrespective of the child’s or parents’ race, colour, sex, language, religion, opinion, origin, property, disability, birth or other status.
- Best interests of the child (Art. 3(1)): in all actions concerning children, whether by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
- Right to life, survival and development (Art. 6).
- Respect for the views of the child (Art. 12): a child capable of forming views has the right to express them freely in all matters affecting the child, given due weight according to age and maturity, and to be heard in judicial and administrative proceedings.
4. The rights, grouped
Survival and development. Name, nationality and registration immediately after birth (Art. 7); preservation of identity (Art. 8); health and health services, reduction of infant mortality, and abolition of traditional practices prejudicial to health (Art. 24); social security (Art. 26); an adequate standard of living (Art. 27); education, with primary education compulsory and free, and school discipline consistent with the child’s dignity (Art. 28); the aims of education (Art. 29); rest, leisure, play and cultural life (Art. 31).
Family environment. Parental guidance and the evolving capacities of the child (Art. 5); no separation from parents against their will except by competent authorities in the child’s best interests (Art. 9); family reunification (Art. 10); illicit transfer abroad (Art. 11); common responsibility of both parents (Art. 18); alternative care (Art. 20); adoption, with the best interests as the paramount consideration and inter-country adoption as a subsidiary means (Art. 21).
Protection. From all forms of physical or mental violence, injury, abuse, neglect or exploitation, including sexual abuse, while in the care of parents or others (Art. 19); refugee children (Art. 22); children with disabilities, to a full and decent life (Art. 23); economic exploitation and hazardous work (Art. 32); narcotic drugs (Art. 33); sexual exploitation (Art. 34); sale, trafficking and abduction (Art. 35); other exploitation (Art. 36). Article 37: no torture, and neither capital punishment nor life imprisonment without possibility of release for offences committed below eighteen; detention only as a last resort and for the shortest appropriate time. Article 38: no recruitment into armed forces below fifteen. Article 39: recovery and reintegration of child victims. Article 40: juvenile justice, with a minimum age of criminal responsibility and alternatives to institutional care.
Participation. Expression (Art. 13); thought, conscience and religion (Art. 14); association and assembly (Art. 15); privacy (Art. 16); access to information and the media (Art. 17), with Article 12 as the governing principle.
5. Implementation and Optional Protocols
The Committee on the Rights of the Child (Art. 43), of eighteen experts, examines state reports submitted within two years of entry into force and every five years after (Art. 44). Three Optional Protocols: on the involvement of children in armed conflict (2000; no compulsory recruitment and no direct participation in hostilities below eighteen); on the sale of children, child prostitution and child pornography (2000), both ratified by India in 2005; and on a communications procedure (2011, in force 2014), which India has not accepted.
6. UNICEF
- Origin. Created by General Assembly resolution 57 (I) of 11 December 1946 as the United Nations International Children’s Emergency Fund, to provide food, clothing and health care to children in post-war Europe and China.
- Permanent status. In 1953 the General Assembly made it a permanent part of the UN and renamed it the United Nations Children’s Fund, keeping the acronym. It received the Nobel Peace Prize in 1965.
- Structure. Headquarters in New York; an Executive Director appointed by the Secretary-General; an Executive Board of 36 member states elected by ECOSOC; regional and country offices; and National Committees that raise funds. It is funded entirely by voluntary contributions from governments and private donors.
- Mandate under the CRC. Article 45(a) entitles UNICEF to be represented when the Committee considers implementation, and the Committee may invite it to give expert advice and reports, and may transmit to it states’ requests for technical assistance. UNICEF’s mission statement commits it to being guided by the Convention.
- Work. Immunisation and child survival (oral rehydration, growth monitoring, breastfeeding); nutrition; water, sanitation and hygiene; education, especially of girls; child protection against violence, trafficking, child labour and child marriage; emergencies and child soldiers; research and data such as The State of the World’s Children.
- India. UNICEF has worked in India since 1949: support for the polio and immunisation programmes, the Integrated Child Development Services, sanitation, and programmes against child marriage, with central and State governments.
Limits: UNICEF has no power to enforce rights; it works through governments with voluntary funds.
7. National legal developments
Constitution. Article 15(3) (special provisions for children); Article 21A (free and compulsory education for children of six to fourteen, inserted in 2002); Article 24 (no employment of children below fourteen in factories, mines or hazardous employment); Article 39(e) and (f) (children not to be abused, and to be given opportunities to develop in conditions of freedom and dignity); Article 45 (early childhood care and education below six); Article 51A(k) (parents to provide opportunities for education).
Statutes. The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (so renamed in 2016); the Commissions for Protection of Child Rights Act, 2005 (NCPCR); the Prohibition of Child Marriage Act, 2006; the Right of Children to Free and Compulsory Education Act, 2009; the Protection of Children from Sexual Offences Act, 2012; the Juvenile Justice (Care and Protection of Children) Act, 2015, which applies the best interests principle and governs adoption through the Central Adoption Resource Authority.
Supreme Court.
- Lakshmi Kant Pandey v. Union of India, 1984 INSC 26, (1984) 2 SCC 244: norms for inter-country adoption to prevent trafficking, with preference for adoption within India.
- M.C. Mehta v. State of Tamil Nadu, 1996 INSC 1454, (1996) 6 SCC 756: children in the Sivakasi match and fireworks industry; an offending employer must pay Rs. 20,000 compensation for every child employed in contravention of the Act, into a welfare fund for the child, and the State must provide employment to an adult of the family or contribute to the fund.
- Unni Krishnan v. State of Andhra Pradesh, 1993 INSC 40, (1993) 1 SCC 645: free education up to fourteen is part of Article 21.
- Society for Unaided Private Schools of Rajasthan v. Union of India, 2012 INSC 169, (2012) 6 SCC 1: the RTE Act, including 25 per cent admission of disadvantaged children in private unaided schools, upheld as constitutionally valid.
How this is examined
For the CRC essay, use sections 2 to 5 with Article numbers and close with India’s accession and two or three statutes. For the UNICEF essay, section 6 in full with a paragraph from section 3 explaining that UNICEF’s work is guided by the CRC. A short note on “rights of children: national developments” is section 7.
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