Legislation UpdatesRules & Regulations

The Central Government makes National Commission for Protection of Child Rights (Amendment) Rules, 2021 to amend the National Commission for Protection of Child Rights Rules, 2006. They shall come into force on the date of their publication in the Official Gazette.

The Amendment inserts a proviso in Rule 6(3) of National Commission for Protection of Child Rights Rules, 2006:

 

“Provided that a person who has held office for two terms as Member or two terms as Chairperson, shall not be eligible for re-nomination as a Member or Chairperson, as the case may be:

Provided further that a person who has held office-
(i) for two terms as Member; or
(ii) one term as a Member and one term as Chairperson, shall be eligible for one more term as Chairperson”

Case BriefsForeign Courts

Supreme Court of The United States: While looking into the question that whether the city of Philadelphia violated the First Amendment by discontinuing to refer deprived children to the Catholic Social Services (hereinafter CSS) on account of its refusal to certify same-sex cou­ples to be foster parents due to its religious beliefs about marriage; the Court held that, the refusal of Philadelphia to contract with CSS for the provision of foster care services unless they agree to certify same-sex couples as foster parents, violates the Free Exercise Clause of the First Amend­ment. The decision of the Court was unanimous and was delivered by John Roberts, C.J., in which he was joined by Stephen Breyer, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, Brett Kavanaugh, Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ.

Background: CSS is a Philadelphia based foster care agency involved in taking care of Philadelphia’s disadvantaged children ever since its establishment in the early 20th century. The Philadelphia foster care system depends on coopera­tion between the City and private foster agencies like CSS. When children cannot remain in their homes, the City’s Department of Human Services assumes custody of them. The Department enters standard annual contracts with pri­vate foster agencies to place some of those children with foster families. The placement process begins with review of prospective foster families. Pennsylvania law gives the authority to cer­tify foster families to state-licensed foster agencies like CSS. Before certifying a fam­ily, an agency must conduct a home study during which it considers statutory criteria including the family’s “ability to provide care, nurturing and supervision to children. When the Department seeks to place a child with a foster family, it sends the contracted agencies a request. The agencies report whether any of their certi­fied families are available, and the Department places the child with what it regards as the most suitable family. The agency continues to support the family throughout the placement.

Facts: The religious views of CSS are one of the core aspects of its work in this system. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs. CSS believes that “marriage is a sacred bond between a man and a woman”. Since the agency understands the certification of prospective foster families to be an endorsement of their relationships, it does not certify un­married couples (regardless of their sexual orientation) or same-sex married couples. The Court pointed out that CSS does not object to certifying gay or lesbian individuals as single foster parents or to plac­ing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, then they directed the couple to other agencies in the City, all of which currently certify same-sex couples.

However in 2018, after receiving a complaint about a different agency, a newspaper ran a story in which a spokesman for the Archdiocese of Philadelphia stated that CSS would not be able to consider prospective foster par­ents in same-sex marriages. The Philadelphia Commission on Human Relations launched an inquiry. The Department informed CSS that it would no longer refer children to the agency. The City explained that the refusal of CSS to certify same-sex couples violated a non-discrimination provision in its contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance. The City stated that it would not enter a full foster care contract with CSS in the future unless the agency agreed to certify same-sex couples.

CSS alleged that the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amend­ment.

Observations: It was observed that the Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, pro­vides that “Congress shall make no law- prohibiting the free exercise” of religion and a plain reading of the provision reveals that Philadelphia’s actions have burdened CSS’s religious exer­cise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.

The Court noted that Section 3.21 of Philadelphia’s standard fos­ter care contract is not generally applicable as the con­tract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation; but it also permits exceptions to this requirement at the “sole discretion” of the Commissioner. The Judges further observed that Philadelphia’s Fair Practices Ordinance, which for­bids interfering with the public accommodations opportunities of an individual based on sexual orientation, does not apply to CSS’s actions. The Ordinance defines a public accommodation to include a provider “whose goods, services, facilities, privileges, ad­vantages or accommodations are extended, offered, sold, or otherwise made available to the public.”. “Certifica­tion is not “made available to the public” in the usual sense of the words. Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment which cannot be compared to stating in a hotel or riding a bus”.

Finally, the Court observed that a government policy can survive strict scrutiny only if it advances compelling inter­ests and is narrowly tailored to achieve those interests. Philadelphia does not have a compelling interest in refusing to contract with CSS. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment.  [Fulton v. City of Philadelphia, No. 19–123, decided on 17-06-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Patna High Court: While addressing the issue of minors being put to observational homes in routine manner in spite of them (minors) being willing to reside with relatives, the Bench of Rajeev Ranjan Prasad, J., observed that, the judicial officers are required to be sensitized on the subject. The Bench remarked,

It is only when there is no possibility of keeping the victim girl with her family or with a guardian, she would be required to be sent to an Observation Home.

The instant application had been preferred by the victim girl who had been kept in the Remand Home since 20-03-2020 in connection with a Case registered under Section 363, 366(A) of the IPC lodged by her father alleging that his daughter was seen being taken away by the accused. On recovery, the victim disclosed that she had gone to the house of her maternal grandmother because her parents wanted to marry her to someone else. She disclosed her age as 18 years but the Magistrate assessed the same as 17 years without there being any basis for the same. Moreover, without considering the request of the victim girl to allow her to live with her maternal grandmother, the Magistrate had sent her to the Observation Home.

The Bench opined that the Additional Chief Judicial Magistrate while passing the impugned order should have acted with more circumspection and care. In all fairness, he should have called for the school certificate of the victim girl because he was aware that the victim girl was a student of Class-XII. The Magistrate had also failed to consider the submission of the victim girl that she wanted to live with her maternal grandmother. It was not the case that the parents of the victim girl had objected to sending the victim girl to her maternal grand-mother. Opining that the judicial officers were required to be sensitive towards the rights of the child and need to take care of them on the principles of parens patriae; the Bench remarked,

The judicial officers are required to be sensitized on this issue otherwise similar examples will kept on coming before this Court. The need to keep a child in the Observation Home or to allow him/her to stay with her parents/guardians is one of the most essential consideration which is required to be given by the Magistrates when they find that a minor girl or victim of a crime is produced before them. There cannot be a remand of a victim girl to an Observation Home in a routine manner.

The Bench stated that all possibilities were required to be explored keeping the best interest of the child in the mind, to facilitate her stay either with her own family or with a trusted guardian where her security would also be intact. In the instant case, there was no dispute that the petitioner was major and was entitled to set free. In Bar and Bench v. State of Bihar, 2018 SCC Online Pat 1179, the Court had heavily relied on the decision of Supreme Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, and had observed that:

“…If we analyze the aforesaid judgment in the backdrop of facts and circumstances of the present case, even though we are conscious of the fact that the parents have various reasons to resist the wishes of their daughter, but once the daughter in categorical term on two occasions when she appeared before us, i.e. today and earlier to that on 26.06.2018, expressed her desire to have her own way of life and exercise her fundamental right, we have no hesitation in allowing her to go the way she desires and exercise the constitutional right available to her. She is a free citizen and no one even her parents have a right to curtail or withhold the freedom available to her under the Constitution…

For the reasons stated above, the Court set aside the impugned order and directed respondent 5 to release the petitioner from the Observation Home. The Bench further directed that it would be open to the petitioner to choose her place of residence and to her father to persuade her to live with the family without resorting to any force or extra-judicial method to pressurize the petitioner in any manner. Additionally, observing that the judicial officers are required to be sensitized on the subject, the Bench urged the Chief Justice to consider issuing appropriate directions to the Bihar Judicial Academy to hold classes on the subject and take efforts to sensitize the judicial officers of the State as to how to deal with such cases in accordance with law.[Khushi Kumari v. State of Bihar, 2021 SCC OnLine Pat 1352, decided on 25-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Upendra Kumar Singh
For the Respondent/s: APP Sheo Shankar Prasad

Op EdsOP. ED.

Since the advent of computing technologies in 1980’s many scholarly works have been devoted to direct the attention of society towards the ways in which digital advancements are availed by children. However, five decades from preliminary stage of advancement, today’s reality indicate that children are perceived as objects of an ever-deepening spectrum of digital surveillance responses that record details of their lives.[1] Depending upon the age of child, these practices can be divided into four parts:

(1) In utero and infant stage (gestation period – 1 year): The surveillance technologies possess the capacity of generating and processing data about children even at the earliest stage of gestation (before birth). One of the most popular practice is “intimate surveillance” by parents, which is a way of announcing pregnancy by sharing details of foetus and excessive monitoring of unborn as a part of care.[2] This sharing of ultrasound pictures, visuals, month of pregnancy, on social media sites like Twitter, Facebook, and YouTube makes them vulnerable to targeted advertising and surveillance by third party.[3] Sometimes, parents subscribe to certain applications that can monitor growth, development, movements and rate of heartbeat of the unborn, these software record and keep a track of such information as a part of marketing gimmick. Within few seconds after birth, children are subjected to intense web chain of surveillance in the name of check-ups, healthcare provisions, etc. Moreover, the pre-installed softwares that once helped parents to monitor activities of unborn, after birth are available  for checking the sleeping and feeding patterns, health status, medicines procured, etc. Thus, latently shifting their task from monitoring to surveillance and sharing the data to companies providing infant related services and products under the garb of “enhancing browsing experience”.[4] One such example is “baby monitor application” which can take 1000 measurements per second of a child when connected to sprouting ankle band.[5] These actors (particularly parents) track their infant through these surveillance apps. During infancy parents often provide with mobile digital devices like “leapband” and “leapfrog” (superficially tasked to encourage physical activities), while quiescently storing and sharing personal information with internet corporations.[6]

(2) Early childhood (2-7 years): This is the stage where children’s privacy is most vulnerable as they do not know how to combat and protect it. Sometimes actors (significant others) like parents, caregiver and other family members may engage in certain activities that put child to risk of being capitalised by commercial entities. The internet of toys (IoT) which include internet connected smart toys or smart recording toys, have attracted parents and children across the world, while sidelining the detrimental implications of using these new techniques of surveillance.[7] Hello Barbie, a smart toy connected to microphone was launched in 2015, well-equipped with voice recognition tools and artificial intelligence (AI) that could record the call-and-response data, apparently demarcated to be private between doll and child.[8] This recorded conversation can be later on filtered by the manufacturing server to commercialise the user (often children) by collecting their personal information and gaining profit out of them. The filtered responses could be sold to the big entities to enhance their AI equipped advertisement tactics, thereby subjecting the child’s right to privacy at utter risk. In response to the related hacking, illegal tracking of data, indulging in latent – profit-making business, people protested against the smart toy on twitter, flagging their concern under #HellNoBarbie.[9] Since then the market and simultaneously the legal implications of these smart toys which include — talk-to-me mikey, smart toy monkey, and kidizoom smartwatch DX; connected toys, such as selfiemic and grush; and other connected smart toys such as cognitoys’ Dino, and My Friend Cayla has increased multifold.[10] Moreover, majority of these toys blend in the daily life of child as a harmless companion through inbuilt microphones, voice sensors, cameras, compasses, gyroscopes, radio transmitters, or bluetooth. Thus, allowing the remote servers to assemble a miniature of the personal information of child, needs of the house, choice of the members and connected friends. This collection of data does not only edges the child at risk but also parents and all other technologically connected to them. For example, the call-in feature in many gadgets tacks the data of the sender as well as the receiver, who would be the next target and by coming in spectrum proximity with his parents, relatives and other friends increases the perpetual chain of invisible yet gross surveillance.

Moreover, the latest global positioning system (GPS)– enabled wearable (like— kidizoom smartwatch DX)[11] raises eyebrow of surveillance monitoring professionals. The demand for these gadgets is observing a tremendous up tick and the reasoning of parents seems self-contradictory. Significant others (especially parents) form the majority users of this device, which allows them to monitor their child’s movements so as to keep the ignorant children within the radar of parental security. Meanwhile, this apparent security is leading to privacy abuse of children as the data is collected by the commercial enterprises to track the daily whereabouts of child, seemingly making them a victim of targeted advertising.

(3) Middle childhood (7-12 years): Children at this stage start to use sophisticated technologies. Gradually, staring up from connected toys to video games, toys to life, robots, CHiP robotic dog and sphero star wars BB-1 companion robot.[12] These robotic toys, inbuilt with voice recognition techniques, wireless transmitters, amplifying receivers and ability to connect with other applications of mobile, store information internally and remain connected to the storage cloud even during sleep-time (switched off).[13] While some video games come with the implied consent to GPS functionality, which could be misused by hackers to track the current as well as immediate location of the child or access recorded data. Evidently, “My Friend Cayla” (a smart toy) was banned in Germany on the verified grounds of violation of telecom regulations,[14] where it was found that the privately collected data was transmitted via bluetooth connection for earning profits. When compared to connected devices like Amazon Eco, Google Home and Google Assistant, these toys and games pose greater concerns. In adult internet connected gadgets (aforementioned), the devices can record data only after a stimulus (i.e. “wake up words”) and the data collected in cloud can be deleted by managing the voice record settings.[15] On the other hand, connected toys and video games come with constant connection and hardly any server provides customised settings to regulate the inflow and outflow of data, as the GPS (gathering, processing and sharing) of data (often) occurs without consent. Alarmed by the situation, Federal Bureau of Investigation (FBI) in September 2017 warned against the risks involved in using internet of toys as majority of them secretly spy.[16] This could lead to misuse of sensitive information such as physical identifiers, location, relation to other people, recording of social interaction, etc. In fact, the official report advised parents to prioritise cyber security of children over smart tech-equipped interactions with gadgets.

Moreover, the surveillance technology has expanded to schools (in the name of learning development toys) and healthcare settings to help child stabilise their emotional anxiety. Some may also connect to insecure WiFi networks without the requirement of personal identification numbers (PINs) for pairing with connected devices, thereby transferring data to other devices without prior intimidation. Some of these “educational tech-connected toys” requires patches (i.e.  regular software updations), which are hurriedly installed by children without understanding the terms and conditions or the consent letter is formulated in exceptionally legal terms which cannot be comprehended by the consumers it ought to serve. Further, many schools use closed-circuit television (CCTV) cameras to monitor students, with majority of them using biometric tracking technologies like RFID (radio frequency identification devices) in school uniforms or fingerprints to track purchases from canteen.[17] Additionally, databases are maintained to store academic performance. One such example is “ClassDojo,” a behaviour tracking software used by approximately 3 million teachers and 30 million students across 180 countries.[18] This application monitors the habits and manners of children, calibrate it into unit of numerical value and report to the teacher. It superficially appears to be harmless, but is certainly a “pleasure surveillance,” wherein the personal data (about health, morbidities, stimulus, reactions, etc.) are stored under the veil of legal and consented monitor. Conversely, these devices enable data processing, collection and sharing, thereby putting an essential human right (to privacy) of children at risk. Many cases of violation of child’s privacy have been reported, a famous example is— VTech Electronics North America, LLC (VTech), 2015[19] where the toy (connected tablet) manufacturing company breached its threshold of user’s data collection and exposed personal information of over 6 million children and 4 million adults,[20] that ranged from names to photographs of the people.

(4) Adolescent stage (13-18 years): This stage poses the most exploitation risk among the stated four stages, where technology forms the enabling medium of cybercrime against them. Advancing capabilities, developing online media platforms and unprecedented intensity of access to online content are the major factors leading to large scale abuse of children. As per the studies, one in every three netizens is below the age of 18 (mainly teenagers). Accessibility to online platforms help adolescents to explore skills, be creative, interact with new people and culture, imbibe new perspectives and considering the metamorphosis of education sector to virtual educational courses, the frequency of this virtual reality has tremendously increased.

Children are most susceptible group, as they are largely blank slate, which  can be misguided, fraudulently emotionally altered, misinformed and latently pressurised in making choice.  Considering all the above concerns that arise at the earliest stage of child development (gestation) and get multiplied with each passing day, the assertion that data surveillance has profound implications for children is further solidified. Therefore, the conflict between data surveillance and child’s data rights in relation to the ever-changing technological prospects and implications should be mitigated by facilitated interventions and awareness of stakeholders.  But, one cannot sideline the risks that are inherent in such operational systems. The most prominent threat is perpetrated by connecting to unknown people, which may later result into sexual abuse. This risk can be categorised into three sub-risks (the three risky Cs):

(4.1) Content: This refers to the means within the internet medium through which an adolescent may receive child pornography material. In some situations child may view age inappropriate content like violence, abusive behaviour or porn. The circulation of pornographic material on social media has become a common practice across the world. According to a report by porn hub data the most searched content online (in relation to porn) is “child pornography” and forced sex, watched mostly by teenagers.[21] This consumption of porn on the so-called social media platforms, whose ambit of usage and features have indirectly facilitated this abuse, is illegal. A single targeted advertisement of age inappropriate substance can provoke the child’s curiosity to know more about the subject and a nascent click on “open the link” button can lead to the dark world of illegal pornography, looking for opportunities to connect to new people especially children, who could later be commercialised as child pornography creators. Moreover, this concern has been aggravated by the pandemic, which has pushed several sectors to online platforms, one of them being education which is now solely dependent on online platforms — for virtual classes (on Zoom, Cisco, Google Meet, etc.), for double clearing session (on WhatsApp, Messenger, Viber, Hike, etc. Peer Group), for conveying official notices (on E-mail, WhatsApp, etc.) and for homework (on apps like Google Classroom). This excessive dependency on internet comes with its own repercussions of target marketing and unwelcomed posters flashing on screen. Whether accessed intentionally or accidently, it can have lasting effect on mental and sexual health of children.

(4.2) Contact: It refers to the manner in which a child can be exposed to sexual abuse, which mainly occurs through solicitations. Children, who are not digitally socialised enough reveal their personal information on social media in the form of sharing current location, updating bio and status, explicitly mentioning residence and date of birth, posting latest happening in their life and sometimes even information related to people who were tagged in the posts. In other cases, child may reveal personal information or contact details while playing online games. Such (PIIs) personally identifiable information can be used by perpetrators or hackers to assimilate and orchestrate the data to blackmail the child.[22] Further, predators look COVID-19 as an opportunity to exploit children as they spend more time online— attending classes, gaming and socialising virtually. Such unstructured, untimely and increasing usage of internet exposes this vulnerable section to risk of cyberbullying and sexual exploitation. Moreover, the application softwares currently used to facilitate education in countries were never designed for children, however some apps are accepting the existing loopholes and are trying to customise adult apps for children, but such measures are at preliminary stage and can be overturned by minor interventions.

(4.3) Conduct: This category refers to the risk circumstance where child is blackmailed or coerced to be the creator of pornographic material. In majority of the cases, the risk starts with accepting an unknown request, chatting and sharing personal information and gradually translating to blackmailing, harassment, bullying, coercion which leads to subjection of child to violent sexual exploitation.  As per a survey of 2018, it was found that 60% of the social media users (children) have witnessed one or the other form of bullying.[23] Online gaming, which provides virtual playground apparently renders a safe place for cyberbullying also as the disclosure of information is voluntary and therefore, the abusers hide their identity and connect to children, meanwhile facilitating production and dissemination of pornographic material while retaining fake identities. As per the report of Europol, online sexual coercion accompanied with extortion, often called “sextortion”[24] forms the major threat on social media. This poses serious risk of child commoditisation, procurement of sexual benefits, or forcefully asking the child to create pornographics.[25] Moreover, the crime of grooming has be accelerated by anonymity provided on social media platform. The abusers persuade children to forward sexually explicit photos which are aggravated by blackmailing for production of more of such content.

Moreover, end-to-end encryption, observed as a virtual crusader of right to privacy is often misused for transmission of sexually explicit content, especially that of child pornography. Feature of encryption renders the liberty to share content without getting monitored by the software or any other bubble filter applied to remove and report pornographic material.[26] Thus, this functionality, provided by majority of the social media (such as WhatsApp, Signal, Messenger, etc.)[27] facilitates the escape of perpetrator scot-free. Further, the reporting rate of sextortion and blackmailing remains low as the victim feels guilty and embarrassed, which in turn leads to chain of crimes and longer period of victimisation.  Another growing risk is sexual abuse by ICTs (Information and communication technologies), wherein child sexual abuse is live streamed for commercial purposes. Using apparently neutral names as “on-demand abuse” or “pay-per-view abuse” does not decreases the seriousness of the heinous crime. The victims usually belong to low income economies such as Eastern Asia.[28] On demand abuse has become a family business in certain countries like Philippines, where children perform sexual actions on the demand of client, whose live footage is shared through secured (encrypted) webcams and other video sharing platforms.[29] Also, as the abuse is live streamed and does not get recorded it becomes difficult to investigate the matter.

Another prominent concern is “sexting” commonly found among adolescent, is a process by which sexually explicit material is created or forwarded in the peer groups through encrypted social media platforms.[30] These voluntarily generated images are often sent to relationship partner, who may subject the creator to risk of dissemination of the material. Due to increasing virtual socialisation, many a times children start online interaction with unknown people, who may subject them to “sexting” and gradually convert into bullies and harassers seeking creation of sexual material from child. In extreme cases, where nude photos confidentially shared through sexting get viral by the receiver, the sender (especially child) either gets into depression or commit suicide due to shame, derogation and insult from the society.

Even though it has been realised that children form the majority users of internet, but there are not many protocols, limits and considerations observed by internet corporations specifically for children. Thus, there is a need to deliberate upon and enact provisions addressing children’s digital rights, which include right to privacy; right against unwanted and excessive surveillance; right against online sexual exploitation; right to mental health and right against targeted advertisement and subjection of children for sexual commercial gain (against will).

The international human rights framework (Universal Declaration of Human Rights in 1948) has been a crusader of children’s rights and is accepted by all countries around the world,[31] which provides utmost moral weight to it than any other international convention. Subsequently, United Nations has also adopted United Nations Convention on the Rights of the Child (UNCRC) (1989) which specifically deals with legal obligations on States to ensure child rights.[32] UNCRC is a binding human rights agreement which carves out basic rights of children that must be considered by Governments across the world. Moreover, it covers social, economic, civil and political rights of children, thus, it becomes pertinent to discuss the following specific articles that render rights against surveillance and online exploitation of children in this digitalised world—

UNCRC Article 3(1) clearly mentions that best interest of child is of primary consideration[33], similar affirmation was reiterated in UN Committee on Rights of Child (Comment 14) which made the “best interest principle”[34] flexible enough to be evoked by children across the world (keeping in view the specific circumstances, place, time and society). The best interest principle is covered under the broad ambit of Article 3 of Universal Declaration of Human Rights (UDHR), providing every human with the right to life, liberty, personal security.[35] Personal security included protection of persona, non-public information, data related to private life, human interactions with others and subsequently the related information, and every act that can be stored with or without consent. With the ever-increasing scope of technological advancements, the right to personal security is also pacing up to become inclusive of virtual personal security.

At this juncture, it is imperative to highlight the persuasive effect of OPSC (optional protocol to the convention on Rights of Child), which not only defines child pornography broadly, to include “representation of sexual parts by any means” [Article 2 (c)][36], but also encourages every State to have criminal or penal law mechanisms in place to ensure punishment for production, distribution, dissemination, import, export, offer, sell, possession, purchase of child pornography [Article 3(1)(b)].[37] Moreover, to establish a balance between right to privacy and providing primacy to presumed innocent nature of children — paragraph 9(d) of UN Economic and Social Council’s guidelines on “Justice in matters involving child victims and witness of crime”[38] requires the States to establish child sensitive (often called child friendly) approach in the cases relating to sexual abuse. Furthering the same efforts, Article 39 of CRC persuades State to take all appropriate and required actions to realise speedy physical and mental recovery of child victim.[39] Aforementioned article when read in consonance with Article 9(3) provides the effect that authority of the State should take every possible measure to socially reintegrate the victim and provide the needed physical, health related, financial, psychological assistance to achieve the same.

Moreover, special efforts are taken to reinstate the socioeconomic and mental position of child under Article 9(4) of OPSC, which provides for compensation not only for proven sexual exploitation but also for lost opportunities including employment, education, lost earning potential, moral damage and psychological damage suffered by the child.[40] Further, to articulate  enabling provisions for the vulnerable section (children) Article 8 of “declaration of justice on victims of crime” convinces the authority of State to review its regulations, laws and customary rules to make “restitution” available as a remedy in addition to criminal law provisions.[41] Acknowledging the fact that the Governments around the world are at preliminary level of formulating regulations for addressing children rights abuse, especially exploitation, global study on Sexual Exploitation of Children in Travel and Tourism (SECTT, 2016) has broadened the ambit of sexual exploitation to include abuse in the context of travel, tourism, pseudo-caregivers or regional business travellers.[42] This has helped children across world irrespective of external orientations and place of abuse to report any kind of human right violation, such needed emphasis on establishing efficient and accessible reporting system is also supported by Article 34 of UNCRC.[43]

However, there remain several unbridged gaps in the access to justice, which need to be addressed by the global communities to establish safe childhood. One such problem is criminalisation of victim (vulnerable children) — the sexually exploited children need time and assistance to heal from the violent abuse. On the contrary, the victims are not given proper time to make informed decision of participation in trial and are treated as criminals rather than victims. This compels victims to undertake decisions under pressure which may prove not to be in their best interest. Furthermore, limited assistance from State and in majority of the cases special care and counselling required by victim are not provided, making it difficult to interact with judicial system during proceedings. Thus, in absence of application of “primary consideration principle” the State officials often take up “one-size-fits-all” approach that is not suited to treat victimised child with special need of emotional assistance. UNCRC encourages the States to give primary consideration to what is in best interest of victim.

Furthermore, children commercialised for online pornography are reluctant to access justice as they apprehend the recorded abuses to be discovered and watched by many during trials. Therefore, specialised outreach programmes should be organised for sexually exploited children with the help of NGOs and specialised police and psychologists team. Victim should be provided a recovery and reflection period accompanied by special counselling sessions to better discern the evidence, without causing much psychological harm and a guardian ad litem should be assigned if the child lacks support to assist him/her navigate through the proceedings effectively. A systematic system of communication should be established to keep the victim informed about the trial and the process of case hearings should be expedited through priority monitoring, regular and timely hearings, after recognising the best interest of the child. Lastly, there should be a comprehensive plan of action for post-trial reintegration of child in the society, without any marginalisation or stigmatisation.

Moreover, there is a need to strike balance between:

Article 28 which confers right to education to all the children and includes learning opportunities on internet;[44]

Article 24 which provides for right to physical and mental healthcare;[45]

                                                             and

Article 19 which confers right to use mass media and protection from content that may harm well-being and obliges States to protect children from all forms of physical and mental abuse;[46]

Article 16, which provides right to privacy to children.[47]

      The stability provided by such a balance would support the children to access full range of opportunities available on internet, while simultaneously protecting them from internet driven exploitation. Thus, after recognising the situational needs, barriers to access of justice and increasing issue of sexual exploitation, the following measures are recommended to address the aforeraised concerns:

  1. All the data stored in “emotoys” (emotional toys) in the form of video and audio recording, location tracking, contact details[48] should be deidentified within a reasonable time-period. Product packing of connected toys should explicitly and clearly state the biometrics and data to be collected with terms related to third-party sharing and retention policies. Moreover, data should be stored in edge processing (provides the facility to delete data to the people signing confidentiality agreement) rather than cloud processing and children’s emotional footprints should never be used for marketing. Updation of services, place of fixture of sensors in the toys should be informed about to the parents and any social media sharing or third party data processing should be set off by default.
  2. Targeted advertising is not only manipulative and invasive but also exploitative for children. Online service providers should comply with the existing regulations that prohibit behavioural advertising under the age of thirteen. Further, advertisement should not constitute more than 10% of the feed (i.e. social media content) for children under the age of 18 years.
  3. Industries should develop platforms keeping in view the well-being of children and its coding, design, communication and features should be committed to deliver age appropriate digital functionary to children, regardless of the minor challenges that it could pose towards company’s commercial gains. Moreover, needs of specific vulnerable group of children should be given special preference and developmental implications of living in digital atmosphere on children should be closely monitored so as to modify the policies towards child rights centric approach.
  4. Regulatory power of Governments should be directed towards providing safe virtual environment for development of children. A step forward in this regard would be making it obligatory for online service providers to follow a minimum standard age-appropriate design and formulating comprehensive terms and conditions that could be easily understood by children. Moreover, a double check of consent should be assured by sending a confirmation message to the parents, who could better understand the implications and make informed decision.
  5. A transparent check mechanism should be formulated to monitor the cybercrime on all the prominently used websites and media platform and an evidence based risk and harm report should be submitted by service providers to ensure transparency. As one in every three people accessing internet is a child (natural person under the age of 18), therefore, digital spaces on platforms should be categorically separated under the header of — creative, education, social and commercial space, entertainment, etc. and only age-appropriate content should be accessible.
  6. Internet corporations should be asked to offer automated surveys at the end of every month, where the users can voluntarily and anonymously enroll and register any exploitative behaviour observed or experienced while using the specific platform. Moreover, the registered cases should be investigated by an independent committee consisting of data privacy specialists, human rights protection experts, one each representative from Government and opposition side, retired Supreme Court Judges, members from reputed NGOs working for children rights (must include a woman member to look into gender sensitive issues), representative of executive committee of the online platform, a high-ranked member of department of Education and Information Technology and Human rights expert lawyer.
  7. Children should be educated about how to control their digital footprint and digital wildfire (i.e. widespread communication of misinformation and disinformation through internet medium) and how to manage targeted responses, privacy setting, online commercial services and deleting or archiving personal information from the attack and scrutiny of excessive virtual surveillance.
  8. Standards should be formulated for personal information/privacy breach and security, mandatorily for internet of toys (IoT) and connected or smart toys. Features like automatic connection to unsecured WiFi, recording while sleep time, storing and sharing of data with other servers without informed consent should be prohibited to ensure enjoyment of right to privacy of children and parents.
  9. Filter bubble mechanism should be used with erasure programs to proactively take down abusive material (to be monitored with regard to the context). Moreover, platforms should be barred from using algorithms to profile, target advertise or process and share data with third party without explicit and informed consent of child. Children should be given “digital education reboot” to teach them on how to make informed choices, use sophisticated technologies and protective settings. Since, majority of the sites recognise users of or above the age of 13,[49] therefore, more emphasis and extra sessions should be held to prevent children of 10-12 years, who generally sign up in curiosity and are particularly poorly equipped to handle or critically evaluate the targeted tailoring often observed on online platforms.
  10. Internet engineering training should be given to children and parents to create awareness and educate them about the right modus operandi to utilise internet to the fullest with safety. Department of Education should include “cross-curriculum” to make children digitally competent, making their browsing and e-learning experience safe and protected. Additional online social norm of contact and safety training should be provided to children to teach them the settings to cope up with unwanted situations.
  11. Virtual platform service providers should be made accountable for any breach of privacy rights and unwanted target advertisement. Moreover, they should be held responsible for gathering, processing and sharing data without informed consent of the user and no platform should be allowed to gain implied consent of user under the garb of enhancing social experience. Further, any link shared on online platforms should not be given access at a single click, but should be a two-stage process wherein — on first click the user will be shown the title of the web link and the category to which it belongs, and the second click on “accept” should direct the user towards the page. This could help in decreasing the rate of accidently confronted sexual material by children.
  12. Vulnerability of children (online) should be recognised by inscribing special provisions and adapting the existing regulations, in pursuit of delivering child-friendly assistance. Some efforts in this direction would be — to provide witness specialists to child victims at the time of trial and giving due consideration to the age, gender, place, duration and nature of circumstances, as the child’s action can be a consequence of his situation rather than a deliberately committed offence. Moreover, specialists and professionals should be approached to construct specially tailored comprehensive strategies and interventions for child victims as emphasised in “Palermo Protocol (Article 6)”[50] and “UN guidelines on child victim and witnesses of crime”.

It is imperative to strengthen collaboration and cooperation among stakeholders across the world to bring in universal standard for globally accessible internet. Given that, technology is increasingly integrating with all aspects of human life and posing opportunities and challenges simultaneously. We all should recognise and proactively take part in formulating adaptive cyber security strategies that could unite the world under one protocol for the cause of children rights. With the same spirit, States should fulfil their commitments under Declaration of Human Rights and Child Rights Convention to establish “child centric” comprehensive framework and accommodative plan of actions to mitigate the issues of unconsented online surveillance and exploitation. Putting human rights priorities front and centre, let us all commit to coordinate and make childhood safer.


1st year Law student at Rajiv Gandhi National University of Law, Punjab, e-mail: divyatiwari3945@gmail.com.

[1] Lupton, D.  and  Williamson, B.,  2017,  The  Datafied  Child:  The  Dataveillance of  Children and  Their  Rights,  New  Media  and  Society <http://journals.sagepub.com/doi/full/10.1177/1461444816686328>.

[2] Id., p. 3.

[3] Marwick  A.,  (2012),  The  Public  Domain: Social  Surveillance  in  Everyday  Life,  Surveillance  and  Society  9(4): 378–93.

[4] Id., p. 4.

[5] Dina Roth Port, Try This Trick: Turn Your Phone into a Baby Monitor, (2015),  Parents, available at

<https://www.parents.com/baby/gear/monitor/how-to-use-phone-as-baby-monitor/> (last accessed 20-4-2021).

[6]Lupton, D.  and  Williamson, B.,  2017,  The  Datafied  Child:  The  Dataveillance  of  Children and  Their  Rights,  New  Media  and  Society <http://journals.sagepub.com/doi/full/10.1177/1461444816686328>, p. 5.

[7] Sara Jodka, The Internet of Toys: Legal and Privacy Issues with Connected Toys, (December 2017), Dickinson Wright, available at

<https://www.dickinson-wright.com/news-alerts/legal-and-privacy-issues-with-connected-toys> (last accessed 13-4-2021).

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Donell Holloway, The Internet of Toys, (December 2016), Vol. 2, Issue 4, Tandfonline.com <https://doi.org/10.1080/22041451.2016.1266124> available at <https://www.tandfonline.com/doi/abs/10.1080/22041451.2016.1266124#:~:text=The%20Internet%20of%20Toys%20refers,privacy%20issues%20have%20already%20occurred.pdf> (last accessed 14-4-2021).

[13] Id., p. 4.

[14] Sara Jodka, The Internet of Toys: Legal and Privacy Issues with Connected Toys, (December 2017), Dickinson Wright, available at

<https://www.dickinson-wright.com/news-alerts/legal-and-privacy-issues-with-connected-toys> (last accessed 13-4-2021).

[15] Sara Jodka, The Internet of Toys: Legal and Privacy Issues with Connected Toys, (December 2017), Dickinson Wright, available at

<https://www.dickinson-wright.com/news-alerts/legal-and-privacy-issues-with-connected-toys> (last accessed 13-4-2021).

[16] Sara Jodka, The Internet of Toys: Legal and Privacy Issues with Connected Toys, (December 2017), Dickinson Wright, available at

<https://www.dickinson-wright.com/news-alerts/legal-and-privacy-issues-with-connected-toys> (last accessed 13-4-2021).

[17]Lupton, D.  and  Williamson, B.,  2017,  The  Datafied  Child:  The  Dataveillance  of  Children and  Their  Rights,  New  Media  and  Society <http://journals.sagepub.com/doi/full/10.1177/1461444816686328>, p. 6.

[18] Lupton, D.  and  Williamson, B.,  2017,  The  Datafied  Child:  The  Dataveillance  of  Children and  Their  Rights,  New  Media  and  Society <http://journals.sagepub.com/doi/full/10.1177/1461444816686328>, p. 7.

[19] Electronic Toy Maker VTech Settles FTC Allegations that it Violated Children’s Privacy Law and the FTC Act,

(January 8-1-2018), Federal Trade Commission, available at <https://www.ftc.gov/news-events/press-releases/2018/01/electronic-toy-maker-vtech-settles-ftc-allegations-it-violated> (last accessed 14-4-2021).

[20] Ibid.

[21] Curtis Silver, Pornhub 2019 Year in Review Report: More Porn, More Often, (2019), available at

<https://www.forbes.com/sites/curtissilver/2019/12/11/pornhub-2019-year-in-review-report-more-porn-more-often/> (last accessed April 15-4-2021).

[22] Lupton, D.  and  Williamson, B.,  2017,  The  Datafied  Child:  The  Dataveillance  of  Children and  Their  Rights,  New  Media  and  Society <http://journals.sagepub.com/doi/full/10.1177/1461444816686328>, p. 8.

[23] Desara Dushi, Protection of Children from Online Sexual Abuse and Exploitation, Global Campus of Human Rights,  (transcript from MOOC on children’s rights in digital age).

[24] Online Sexual Coercion and Extortion of Children,  Europol, available at

<https://www.europol.europa.eu/crime-areas-and-trends/crime-areas/child-sexual-exploitation/online-sexual-coercion-and-extortion-of-children> (last accessed 16-4-2021).

[25] Ibid.

[26] Yarek Waszul, What is End-to-End Encryption? Another Bull’s-Eye on Big Tech, (19-11-2021), available at

<https://www.nytimes.com/2019/11/19/technology/end-to-end-encryption.html> (last accessed 16-4-2021).

[27] David Nield, Best Encrypted Instant Messaging Apps of 2021 for Android, (January 13-1-2021), TechRadar, available at <https://www.techradar.com/in/best/best-encrypted-messaging-app-android> (last accessed 16-4-2021).

[28] Global Threat Assessment, 2019, Working Together to End the Sexual Exploitation of Children Online We Protect Global Alliance , (2019), available at <https://www.end-violence.org/sites/default/files/paragraphs/download/Global%20Threat%20Assessment%202019.pdf> (last accessed 17-4-2021).

[29] Andy Brown, Safe From Harm: Tackling Webcam Child Sexual Abuse in the Philippines,  UNICEF, (3-6-2016), available at <https://www.unicef.org/stories/safe-from-harm-tackling-webcam-child-sexual-abuse-philippines> (last accessed 17-4-2021).

[30] Busting the Myth that Sexting is a Great, Big Deal,  The Times of India, (13-10-2020), available at

<https://m.timesofindia.com/life-style/relationships/love-sex/busting-the-myth-that-sexting-is-a-great-big-deal/amp_articleshow/78616914.cms> (last accessed 18-4-2021).

[31] Universal Declaration of Human Rights,  United Nations, available at

<https://www.un.org/en/about-us/universal-declaration-of-human-rights> (last accessed 18-4-2021).

[32] United Nations Convention on the Rights of the Child (UNCRC) ,  UNICEF UK, available at

<https://www.unicef.org.uk/what-we-do/un-convention-child-rights/> (last accessed 16-4-2021).

[33] Id., Art. 3 (1).

[34] Ibid.

[35] Universal Declaration of Human Rights,  United Nations, available at

<https://www.un.org/en/about-us/universal-declaration-of-human-rights> (last accessed 18-4-2021).

[36] Handbook on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, Art. 2 (c), UNICEF, available at

<https://www.unicef.org/documents/handbook-optional-protocol-sale-children-child-prostitution-and-child-pornography#:~:text=The%20Convention%20on%20the%20Rights,of%20children%20in%20armed%20conflict> (last accessed  19-4-2021).

[37] Id., Art. 3 (1)(b).

[38] ECOSOC Resolution 2005/20, Guidelines on Justice in  Matters Involving Child Victims and Witnesses of Crime, (2005) available at <https://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf> (last accessed 19-4-2021).

[39] United Nations Convention on the Rights of the Child (UNCRC) , UNICEF UK, Art. 39, available at

<https://www.unicef.org.uk/what-we-do/un-convention-child-rights/> (last accessed 16-4-2021)

[40] Handbook on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, Art. 9(4), UNICEF, available at

<https://www.unicef.org/documents/handbook-optional-protocol-sale-children-child-prostitution-and-child-pornography#:~:text=The%20Convention%20on%20the%20Rights,of%20children%20in%20armed%20conflict> (last accessed  19-4-2021).

[41] ECOSOC Resolution 2005/20, Guidelines on Justice in  Matters Involving Child Victims and Witnesses of Crime, (2005) Art. 8, available at <https://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf> (last accessed 19-4-2021).

[42] Darlene Lynch, Through the Eyes of the Child, ECPAT International, (2017), Swedish International Development Cooperation Agency, ISBN ( e-book) BN-60-143927, p. 14.

[43] Id., p. 17.

[44] United Nations Convention on the Rights of the Child (UNCRC), Art. 28, UNICEF UK, available at

<https://www.unicef.org.uk/what-we-do/un-convention-child-rights/> (last accessed 16-4-2021).

[45] United Nations Convention on the Rights of the Child (UNCRC), Art. 24, UNICEF UK, available at

<https://www.unicef.org.uk/what-we-do/un-convention-child-rights/> (last accessed 16-4-2021)

[46] United Nations Convention on the Rights of the Child (UNCRC), Art. 19, UNICEF UK, available at

<https://www.unicef.org.uk/what-we-do/un-convention-child-rights/> (last accessed 16-4-2021)

[47] United Nations Convention on the Rights of the Child (UNCRC), Art. 28, UNICEF UK, available at

<https://www.unicef.org.uk/what-we-do/un-convention-child-rights/> (last accessed 16-4-2021)

[48]Warren and Brandeis, The Right to Privacy, Harvard Law Review, Vol. IV, No. 5,  (15-12-1890),  available at <https://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html> (last accessed 20-4-2021).

[49] Darlene Lynch, Through the Eyes of the Child, ECPAT International, (2017), Swedish International Development Cooperation Agency, ISBN ( e-book) BN-60-143927, p. 46.

[50] Darlene Lynch, Through the Eyes of the Child, ECPAT International, (2017), Swedish International Development Cooperation Agency, ISBN ( e-book) BN-60-143927, p. 175.

Law made Easy

Under the Constitution


This right guarantees free and compulsory education for children between the age of 6 to 14 years in India under Article 21A of the Constitution of India.

  • Free education’ means that no child, other than a child who has been admitted by his or her parents to a school, shall be asked to pay any kind of fee/charges/expenses which may prevent him or her from pursuing and completing elementary education.
  • Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age groups.

Under the Right to Education Act, 2009


Focus:

  • Providing elementary education to a child (6-14 years) who does not/could not go to school. Such child to be admitted in age appropriate class and has the right to receive special training.
  • Seeks to provide children right to seek transfer from a government or govt. aided school to another such school in order to complete elementary education. Such child also has right to immediately seek a transfer certificate (TC).
  • Mandates non-minority private unaided schools to reserve at least 25% of their entry level seats for children belonging disadvantaged sections to create a more integrated and inclusive schooling system.
  • Mandates the appropriate government and local authorities to provide for children’s access to elementary schools within the defined area or limits of the neighbourhood.
  • Lays down the responsibilities of the State and Central government for carrying out provisions of the act.
  • Constitution of a School Management Committee (SMC). The role of this committee to manage, monitor and support a school in its functions.
  • Indicates that within 3 years from the date of commencement of the act, the appropriate government and local authority shall insure that the Pupil Teacher Ratio (PTR) is maintained in each school.

Ensures:

  • Compulsory and free education for all.
  • Special provision for special classes.
  • Minimum standards.
  • Admission for all.
  • Quality and quantity of teaching.
  • All-round development.
  • By the people, for the children.

Objectives:

  • Ensure that every child below the age of 14 gets free and compulsory education.
  • Curb the problem of illiteracy.

Ensure personal growth and in turn growth of the country.


This Article is a part of the ‘Know Your Rights’ series by Centre for Clinical Legal Education, Maharashtra National Law University, Mumbai 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has issued notice in a PIL filed seeking directions for formulation of laws to control the circulation of illicit content including sale of obscene and pornographic material inclusive of Child Sexual Abuse Material (CSAM), rape videos and revenge porn on social media platforms.

The plea filed by two law students from Bharati Vidyapeeth (Deemed to be University)’s New Law College, Pune, Abhyudaya Mishra and Skand Bajpai, also seeks formulation of laws to regulate social media access of minors and setting up of an efficient profile verification mechanism.

The petition states that there has been a market established wherein people are involved in the purchase, sale and transmission of obscene material and many such accounts are public accounts which defeats the purpose of “Age Appropriate Content Policy” of the intermediaries.

“When one gets reported or blocked a new one is created mentioning “Old account blocked, hence new one”. This shows scarce regard to law.”

The plea also refers to a report filed by an NGO named India Child Protection Fund in April, 2020, which stated that there has been a surge in the search for keywords like ‘Child porn’ on the internet.

“… 18% individuals exhibited explicit intent for videos where children were choking, bleeding, tortured, in pain or screaming. The demand for this kind of content grew as much as 200% during the project duration. The report also claims that a large number of individuals were found to be concealing their location and criminal activity by using virtual private networks (VPNs) to circumvent government regulation and platform security.”

Highlighting the issue of ‘revenge porn’, the petitioners state that the concept has been prevailing since 2010 and though several Nation States have expressly criminalised revenge porn in their territories, however in India there exists no such legislation.

“The evil of revenge porn and the trade relating to the private graphic information of individuals on social media violates the right to privacy of those affected.”

The petition further states that no minimum prescribed age or any other provision regarding minors’ access to social media has created a situation wherein any material is available for access to any age group, and given the subject matter of this petition, it portrays a disturbing side of these platforms. These minor children fall an easy prey and are often manipulated and exploited by the predators on these social media platforms.

“As per the terms and conditions of Facebook, an individual aged not less than 13 years or any other lawful age as per law applicable can hold an account on their platforms. Individuals agree and provide consent for several conducts on such platforms, however in India any person below the age of majority cannot give a valid consent, there is no law governing age eligibility for using social media in India.”

It is further stated that under Rule 5 of the Information Technology (Intermediaries Guidelines) Rules, 2011, the intermediary has the right to immediately terminate the access or usage rights of the users to the computer resource and also remove non-compliant information in case of non-compliance of Rule 3 that creates several obligations on the intermediaries. However,

“Even though this mechanism is in place, it has had no or very little impact on the transmission and access to the non-compliant information, barring of account under Rule 5 has no impact on the physical or human user of the account and they often create another account as mentioned in paragraph 3 herein, this may create an endless vicious cycle. This suggests the outburst of unverified and fake media profiles along with a number of catfish accounts already prevailing for ulterior motives on social media.”

The petition also seeks a direction to the Government to notify and enforce the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 and also to include sex education in school curriculum in order to spread awareness regarding the issue. It states,

“Lack of knowledge amongst individuals regarding the functioning of these platforms, associated risks and the security features has made these platforms felicitating exploitation of many, dedicated efforts are required to spread awareness on this subject.”

[Skand Bajpai v. Union of India, Writ Petition(s)(Civil) No(s). 799/2020, order dated 13.10.2020]

Law made Easy

“Child” as defined by the Child Labour (Prohibition and Regulation) Act, 1986 is a person who has not completed the age of fourteen years.

Children, by will or by force are employed to work in the harsh conditions and atmosphere which becomes a threat to their life.

No child (below the age of 14 years) shall be employed or permitted to work in any occupation or process.

Hiring children below the age of 14 years for any kind of work, other than in certain family-based work, is a cognizable offence and will attract a jail term of upto 2 years. Adolescents between the age of 14 – 18 years cannot be employed in any hazardous occupation.

Hazardous Employment

Hazardous child labour is work that is performed by children in dangerous and unhealthy conditions that can lead to a child being killed, injured or made ill as a result of poor safety and health standards or employment conditions. This is referred to as hazardous child labour.

Examples of hazardous employment are-

  • Anything that can cause spills or trips such as cords running across the floor or ice
  • Anything that can cause falls such as working from heights, including ladders, scaffolds, roofs, or any raised work area
  • Unguarded machinery and moving machinery parts that a worker can accidentally touch
  • Electrical hazards like frayed cords, missing ground pins, improper wiring
  • Confined spaces.

Rules for employing Adolescents

The Child Labour (Prevention and Regulation) Amendment Act allows adolescents to work in non-hazardous occupations and processes. If an adolescent is employed, the following conditions must be satisfied by the employer:

  • The period of work on each day should be fixed in a manner that no period or work would exceed three hours.
  • The adolescent must have an interval for rest for at least one hour after working for three hours.
  • The total time spent working by an adolescent cannot exceed 6 hours in a day, including the time spent in waiting for work.
  • Adolescents cannot be employed during the hours of 7PM to 8AM.
  • Adolescents cannot be made to work overtime.
  • Adolescents cannot work in more than one establishment, at anytime.
  • Adolescents must be provided in every week, a holiday of one whole day.

Punishments relating to child labour

  • For parents/guardians There shall not be any punishment in case of a first offence by parents/guardians. In case of a second and subsequent offence, the penalty prescribed is a maximum fine of Rs. 10,000.
  • For employer- Any offence committed by an employer which is punishable under the Child Labour act has been made a cognizable offence. Accordingly, the authorities can file a first information report and commence investigations into the offence without a court order and can arrest without a warrant.
  • PenaltyEmployment of a child or permitting a child to work in any occupation or process in contravention to the statute would lead to Imprisonment of: 6 months to 2 years Fine: Rs.20,000 to Rs. 50,000 or both.

How can we eliminate child labour from our society?

Education is a human right with immense power to transform. On its foundation rest the cornerstones of freedom, democracy and sustainable human development Child labour can limit the time and energy children spend on education. Many forms of child labour are prohibited in international standards. While child labour can be an obstacle to education, at the same time education is instrumental in the prevention of child labour.  Through education, parents and children alike become more aware of its benefits, and the harm that child labour can cause.  And access to education helps reduce poverty, one of the root causes of child labour. It can be concluded that education is the key to abolish child labour across the globe.

Role/Importance of education or Right to Education Act in eliminating child labour

The RTE act is not innovative law. Universal adult franchise in the act was opposed since most of the population was illiterate. Article 45 in the Constitution of India was set up as an act: “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”

  • The Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools. It requires all private schools to reserve 25% of seats to children from poor families (to be reimbursed by the state as part of the public-private partnership plan).

STOP Child Labour- It promotes jobs & protects people.


*This Article is a part of the ‘Know Your Rights’ series by Centre for Clinical Legal Education, Maharashtra National Law University, Mumbai 

Case BriefsHigh Courts

Kerala High Court: While allowing the instant petition seeking for issuance of a writ of mandamus directing the State Government to take all necessary steps to establish a Government Lower Primary School at Elambra village in Manjeri Municipality, expeditiously; the Division Bench of S. Manikumar, CJ, and Shaji P. Chaly, J., directed the State Government to sanction the establishment of Government LP School, at Elambra within a period of three months. The Bench strictly observed that the people of Elambra have been fighting a long battle of 35 years with the might of the State Government in order to establish a lower primary school- a demand that is completely in consonance with the law and the Constitution and there is a conspicuous failure on the part of the State Government in acknowledging this demand.

The petitioner, a resident of Elambra, filed the instant PIL. As per the facts, the village is located on the outskirts of Manjeri Municipality and is a socially and educationally backward area. There are no primary schools within the radius of 3 km and during the last 30 years, the local residents have been making continuous effort to get a new Government LP School at Elambra. Several representations were submitted before the concerned authorities concerned, including the Minister of Education, all of which yielded no result. The petitioner further submitted that the concerned authorities have conducted several inspections and had submitted their reports, which were ignored by the Government. P. Venugopal representing the petitioners argued that the Government failed to discharge the duties cast upon them under Section 19 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 r/w Section 3(3) of the Kerala Education Act, 1958. The petitioner also presented Reports prepared by Manjeri Dy. District Education Officer and Malappuram District Educational Officer; Order issued by Kerala State Human Rights Commission and Kerala State Child Rights Protection Commission (hereinafter Commissions); all of which were clear on the point that Elambra is a remote area with the closest primary schools situated 5 km away and the Government is constitutionally and statutorily obligated to take concrete steps for providing basic educational infrastructure. The respondents were represented by Surin George Ipe.

The Court perused the facts; contentions; the Reports and relevant Supreme Court cases highlighting the Right to Education as a fundamental right. The Bench taking into account international conventions such as the Universal Declaration of Human Rights and Convention on the Rights of the Child observed that, Right to Education is not only a fundamental right but it is also a Human Right. The Court delved in-depth on the evolution of a child’s right to education and the obligations of the State in relation to it. Taking into consideration statutes such as the Right of Children to Free and Compulsory Education Act, 2009, Commissions for Protection of Child Rights Act, 2005, Right of Children to Free and Compulsory Education Rules, 2010 and the concerned State legislations, the Court noted that that the people of Elambra have been demanding establishment of a Government Lower Primary School, whereas the State Government, without considering the reports of local educational authorities, by erroneously applying the Rules and not following the relevant statutory provisions particularly Section 3(3) of Kerala Education Act, 1958, Section 3 of the Right of Children to Free and Compulsory Education Act, 2009 and Rule 6 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, have denied sanction for establishment of a Government LP School in Elambra. The Court concurred with the reports presented by the local educational authorities which have clearly recorded that the area in question is educationally backward with no proper transport facility. There are Upper Primary and High schools in and around the locality within a distance of 2-5 kms. There is no Government LP school within the radius of 3 kms and people are depending upon schools, which are not within the neighbourhood of Elambra. The Court also noted that since the respondents did not challenge the Orders issued by the Commissions, therefore they cannot argue that such Orders are not binding on them. [T. Muhammed Faisi v. State of Kerala, 2020 SCC OnLine Ker 2981, decided on 29-07-2020]

Law School NewsOthers

The Convention on the Rights of the Child (CRC), the first international convention on child rights was signed in 1989 and has led to great progress in safeguarding human rights of the children. It has resulted in major changes in laws to ensure better protection for children and has even altered the manner in which international organizations see their work for children. The convention has also resulted in better protection of children in situations of armed conflict. To mark the 30th year of CRC, NALSAR’s Centre for Child and Youth Justice, in collaboration with UNICEF, is organising this competition to encourage students to deliberate on the intersection of International Humanitarian Law and Child Rights.

FORMAT OF THE COMPETITION

Assessment Round – An Assessment Round will be conducted to test the team’s knowledge and prior experience in child rights and International Humanitarian Law. Interested teams are required to answer 2 basic International Humanitarian Law and Child Rights questions and send it to the organizers along with one motivation letter per team. Based on this, 15 teams, comprising of either 2 or 3 members each, will be selected for the oral rounds at NALSAR University of Law, Hyderabad.

Oral Rounds – The teams will be required to analyse a fictional conflict (main problem) given to them upon qualifying for the Oral Rounds. The teams are required to identify primary legal and other issues from the given fictional conflict. During the rounds, each team will be given time to firstly put forth their stance on the legal issues at play, and how the parties figure into them. This will involve putting forth arguments, outlining how other parties have violated the International Humanitarian law and Child Rights.

PARTICIPATION AND ELIGIBILITY

Students of any University offering any legal undergraduate, graduate or postgraduate Degree Course are eligible to participate in this competition. A Team may consist of members from more than one Institution. There is no cap on the number of teams that can participate from one Institution.

Each team shall comprise of a minimum of two members and a maximum of three members. In any given round only two members will act as oralists while the third member acts as an observer. Substitutions amongst Team Members is allowed after the end of each oral round.

REGISTRATION FEE

There is no registration fee to participate in the Assessment Round.

After the Assessment Round, the qualifying teams must register by paying a registration fee of Rs. 9000/-. This fee is inclusive of stationary, food and 2 nights stay (April 12 & 13). Participants wishing to stay beyond the above mentioned dates will have to register for the same and pay a nominal charge of Rs. 800/- per person per day.

IMPORTANT DATES

  • Submission of Assessment Round Applications: March 8, 2019 11:59 PM
  • Declaration of Selected Teams and Wait-listed Teams for the Oral Rounds and Release of the Competition Problem: March 10, 2019
  • Final date of Registration for Oral Rounds: March 17, 2019
  • Oral Rounds: April 13 & 14, 2019

AWARDS

  • Winning Team Award: The winning team will receive a trophy, medals and a cash prize worth Rs. 25,000/-
  • First Runners up Team Award: The First Runners up team will receive a trophy, medals and a cash prize of Rs. 15,000/-
  • Second Runners Up Team Award: The Second Runners Up team will receive a trophy, medals and a cash prize of Rs. 10,000/-
  • Best Oralist in finals shall receive a trophy and a cash prize of Rs. 7,500/-
  • Best Oralist prelims shall receive a trophy and a cash prize of Rs. 7,500/-
  • Every Participant selected for the Oral Rounds shall receive an Online Course by Enhelion Knowledge worth at least Rs. 2500/-

CLARIFICATIONS REGARDING THE COMPETITION CAN BE SOUGHT FROM

Harsh Mahaseth – Head – Core Team: +91 9502321237

P Avinash Reddy – Member – Core Team: +91 9032224907

Ayushi Bansal – Member – Core Team: +91 9166386242

E-mail ID: ihlnalsar@gmail.com

Competition_Rules

Application Packet